Raad v Cossey [2022] NSWDC 59 | Case summary

Raad v Cossey [2022] NSWDC 59 | Case summary | Zoe

[10]

First MAS Assessment

On 5 September 2014 the Statement of Claim was filed and, following the filing of a Defence, the Judicial Registrar made orders on 12 November 2015 setting down the proceedings for hearing on 26 July 2016.
On 13 May 2016 an Application for Assessment of Whole Person Impairment was lodged by the plaintiff with the Medical Assessment Service under the Motor Accidents Compensation Act 1999 (NSW) (hereafter referred to as "the Act"). Accordingly, on 30 May 2016, the hearing was vacated to allow for the MAS determination.
On 14 November 2016, his Honour Judge Letherbarrow SC noted in his orders that the matter is "still in MAS as per its letter of 13 October 2016". I have set out below the text of this letter, which is attached to his Honour's orders on JusticeLink: "I refer to previous correspondence regarding the above matter. I note that the claimant attended an appointment with Assessor Melissa Barrett on 12 September 2016 for assessment of a psychological injury, and that no physical injuries were listed in either the application or reply. Assessor Barrett has indicated that she feels that an assessment of the claimant's brain injury is required in order to prepare her MAS Certificate. The matter will be referred to a neurologist for assessment under the ABI protocol. We invite you to make submissions regarding the brain injury no later than close of business on Wednesday 26 October 2016. The matter will then be referred for assessment after this date."
As note in this letter, the injury for assessment related to the plaintiff's "brain injury".
On 23 December 2016 MAS Assessor Cameron issued a certificate assessing a 25% whole person impairment in respect of the plaintiff's brain injury.
On 20 November 2017, his Honour Judge Letherbarrow SC fixed this matter for hearing to commence on 13 August 2018.
On 14 December 2017, his Honour Judge Wilson SC made the following orders: 1. I make orders in accordance with the Standard Orders #1 (The Yellow Sheet) handed to the parties today and placed on the court file. 2. I further order that in the event that the plaintiff wishes to rely upon an alternate psychiatrist, an application for leave to do so is to be filed on or before 4pm Friday 9 February 2018.
The reference to "Standard Order #1 (The Yellow Sheet)" is a reference to the following order: "The plaintiff is not permitted to rely upon the opinion or any expert report(s) of Dr Akkerman at the hearing of these proceedings."
On 12 April 2018, her Honour Judge Balla made orders as follows putting in place a timetable for the parties to provide any "supplementary liability and/or medial expert reports" and confirming the 13 August 2018 hearing date: 1. The defendant to serve any supplementary liability and/or medical expert reports it intends to rely upon by 24/5/18. 2. The plaintiff to serve any supplementary liability and/or medical expert reports it intends to rely upon by 5/7/18. 3. The defendant to file and serve any Notice of Motion to amend its Defence by 26/4/18. 4. Hearing date confirmed.
On 13 August 2018 the hearing of the plaintiff's claim commenced in this court and continued until 22 August 2018. On 15 August 2018, after hearing a contested application, I granted leave to the defendant to file in court a Second Further Amended Defence. Also on 15 August 2018, I granted leave to the plaintiff to amend his particulars of disabilities to include a claim for epilepsy.
No psychiatric evidence was adduced by the plaintiff at the trial. However a psychological report of Dr Gary Banks was relied upon as part of the plaintiff's medical evidence (contained in Exhibit A). The defendant sought to rely upon the psychiatric evidence contained in report of Dr Roberts. However the plaintiff objected to the use of such evidence, and the Court determined that it was inadmissible.

[11]

Second MAS Assessment

As a result of significant inconsistencies revealed in the plaintiff's oral evidence, the defendant applied for a review of the MAS whole person impairment finding and, on 21 August 2018, the Court ordered that the question of whether the degree of whole person impairment of the plaintiff as a result of any brain injury caused by the motor vehicle accident was greater than 10% be referred for further medical assessment pursuant to s 62(1)(b) of the Act. The reasons are set out in the decision Raad v Cossey (District Court of New South Wales, Cowdroy OAM QC DCJ, 21 August 2018). In reaching the conclusion I made, I was mindful of the decision of the New South Wales Court of Appeal in Motor Accidents Authority of New South Wales v Mills [2010] NSWCA 82.
I set out below the orders made by me on 21 August 2018 following a contested application on this issue: "1. Leave granted to file Notice of Motion (re application to refer matter back to MAS) in court. 2. Motion granted 3. Defendant to draft consent order 4. Stood over part heard to 21/8/18 for submissions on liability CONSENT ORDER TERMS OF ORDER MADE BY COURT 1. The question of whether the degree of permanent impairment of the plaintiff as a result of brain injury caused by the motor accident is greater than 10% be referred for further medical assessment pursuant to section 62(1)(b) of the Motor Accidents Compensation Act 1999. 2. The re-assessment be expedited. 3. The Court orders that only the evidence before the Court is to be provided to the relevant MAS Assessor. 4. The court requests that MAS Assessor Cameron should perform the further medical assessment. 5. The application for further assessment is to be in the form of the draft submitted to the Court by the Defendant"
On 29 June 2019 Assessor Ian Cameron, having referred to further assessments and documented deliberate attempts by the plaintiff in feigning responses in a neuropsychological assessment, determined that the plaintiff's whole person impairment in relation to brain injury is 7% (the "second assessment", see Exhibit C). It thereby followed that the plaintiff has no entitlement to non-economic loss damages.
A review was then sought by the plaintiff of the second assessment. The review panel, in the exercise of its powers under s 63(4) of the Act concluded that the whole person impairment for the assessed injuries was 7%. In reaching its assessment, the Review Panel noted: "Neither the Assessor or the Panel has been asked for a psychiatric assessment. This is a physical assessment."

[13]

Subsequent proceedings

As the Court received no communication from the parties concerning the third MAS assessment, the court of its own volition convened directions hearings on the following dates with the view to expediting the third MAS referral: 1. 12 April 2021; 2. 21 May 2021; 3. 7 June 2021; 4. 6 July 2021; 5. 3 August 2021; 6. 17 August 2021; 7. 7 September 2021; 8. 1 November 2021; and 9. 12 November 2021.
The delay in progressing the determination of the issues has essentially been caused by the Personal Injury Commission ("Commission"). However, the Court acknowledges that the COVID restrictions may have impacted upon the ability of the Commission to carry out the third assessment.
On 29 October 2021, I caused my associate to send the following email to the parties: "Dear Parties, Raad v Cossey (District Court Proceedings 2014/262109) I refer to the orders made by his Honour Acting Judge Cowdroy QC made on 7 September 2021, a copy of which is set out below: (1) Noting that the PIC Assessment will take place on 19 October 2021 as a face to face appointment. (2) Adjourn the directions hearing today to a date to be fixed. (3) The plaintiff is to notify my associate by email within 7 days of receiving the PIC Assessment. (4) The court will then fix a further directions hearing convenient to the parties and to the court. Although order (3) above only requires the plaintiff to notify me within 7 days of receipt of the PIC Assessment, his Honour is anxious to ensure that the overriding purpose in section 56 of the Civil Procedure Act 2005 (NSW) is observed and achieved. For these reasons, this matter will be re-listed on Monday 1 November 2021 at 2:00pm in Court 7D John Maddison Tower for directions. This directions hearing will be conducted via teleconference. Please dial the following number and use the following PIN at the time allocated for the listing: DIAL: [redacted] PIN: [redacted]"
On 1 November 2021, the parties informed the court that the third assessment had not in fact taken place, as the assessor who was initially assigned to hear the assessment refused to do so, and the replacement assessor required further time to consider the material under referral. The Court inquired of the parties as to the status of the defendant's outstanding motion seeking an order that the issue of liability be determined separately to the issue of damages pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW). In consequence, the plaintiff acceded to the orders sought by the defendant.
Accordingly, I made the following orders on 1 November 2021: 1. The directions hearing is adjourned to Friday 12 November 2021 at 9:00am by telephone. 2. The parties are to confer and advise the court by close of business on Thursday 11 November 2021 on the following matters and, where agreed, to provide the court with a Draft Short Minute of Order signed by both parties documenting: 1. Whether the parties agree to have the issue of liability determined separately from quantum; 2. If agreement is reached as to order (2)(a) above, the parties are to: 1. provide my associate, by close of business on Thursday 11 November 2021, the necessary documentation in affidavit form in compliance with paragraph 9 of District Court Civil Practice Note 16 "Applications for leave for in person appearances in Civil Trials"; 2. confer on a timetable for written submissions, with the view of allowing the parties to speak to their submissions on Wednesday 8 December 2021. 1. Subject to the parties' agreement in order (2) above, the hearing is tentatively listed part heard on Wednesday 8 December 2021 for submissions on liability only.
On 11 November 2021, the parties provided the Court with agreed Consent Orders for the question of liability to be determined separately from the question of quantum of damages pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW).
On 12 November 2021, the Court considered that as the issue of liability was a threshold issue, and as the third MAS assessment had not been completed despite the Court's attempts to expedite the referral and with no indication of when the assessment would be completed, the Court should accede to the request of the parties for separate determination of liability.
In reaching its conclusion, the Court was mindful that the issue of liability raised numerous complex issues for determination including joint illegal enterprise, plaintiff's participation in illegal conduct generally, the application of s 5D(1)(b) of the Civil Liability Act 2002 (NSW) ("CLA") and contributory negligence. The Court considered that these issues should be determined before any issue of damages was to be considered since an adverse finding to the plaintiff could impact substantially, or even negative, the plaintiff's claim for damages. The Court is also mindful that the claims considered by the second MAS determination eliminated several of the particulars of injuries. The only remaining question to be assessed, if leave is granted to the plaintiff to reopen to tender any further assessment, would be whether the plaintiff has suffered a psychiatric injury, which is still before the Commission for determination.
Accordingly, the Court made the following orders on 12 November 2021: 1. By consent and pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the question of liability is to be determined separately to the question of quantum of damages. 2. The defendant to file and serve its written submissions as to liability only by 26 November 2021. 3. The plaintiff to file and serve its written submissions as to liability only by 3 December 2021. 4. Matter is tentatively set down for hearing on 7 and 8 December 2021, with liberty to apply. 5. The employed solicitor for the plaintiff, Ms Sarah Farhat, is to provide in 7 days either an affidavit stating that she has been vaccinated within the meaning of District Court Civil Practice Note 16, or to supply a copy of her COVID vaccination certificate verifying such fact. 6. Grant leave to the parties under District Court Civil Practice Note 16 to appear in person at the hearing on 7 and 8 December 2021. 7. Any variation to the hearing date is to be made to the Court by emailing my associate.
On 30 November 2021, in response to questions raised by the Court concerning inconsistency in the pleadings contained in the Second Further Amended Defence, the defendant indicated that it wished to amend its defence. Such amendment related solely to issues of law and not of fact.
On 2 December 2021, the defendant provided the Court with a Notice of Motion and a draft of the Third Further Amended Defence.
On 3 December 2021, the plaintiff provided the Court with his latest submissions on liability. Such submissions were predicated upon the basis that the Third Further Amended Defence would be allowed.
On 7 December 2021, the defendant sought leave to file and rely upon its proposed Third Further Amended Defence, relying upon Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666, The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 and s 64 Civil Procedure Act 2005 (NSW). Mr Jobson, counsel for the plaintiff, raised no specific objection to the filing of the Third Further Amended Defence and submitted that he "can't identify a specific prejudice" (see pp 7-8 of the 7 December 2021 transcript). Accordingly, the Court granted leave for the Third Further Amended Defence to be filed and relied upon.
Following the hearing of submissions on 30 November 2021, 7, 21 and 22 December 2021, the Court adjourned to consider its judgment on the issue of liability. On 22 December 2021, the plaintiff foreshadowed an application to further amend the statement of claim. According, the following orders were made on 22 December 2021: 1. Plaintiff to file an application to amend the Statement of Claim on or before 8 January 2022. 2. Defendant to respond by 28 January 2022. 3. Proceedings adjourned to a date to be fixed.
On 24 December 2021, the Court made the following additional orders: 1. The plaintiff is to provide the defendant with written submissions on the amendment application on a date to be agreed upon prior to 28 January 2022. 2. The parties are to provide a copy of their written submissions to the Court on or before 28 January 2022. 3. By 15 January 2022, the parties are to provide a list of mutually convenient dates in the first two weeks of February 2022 for the hearing of the proposed motion to amend.
The plaintiff filed its motion on 7 January 2022. This motion was heard on 11 February 2022 when judgment was reserved. A separate judgment on the notice of motion was handed down prior to delivery of this judgment: see Raad v Cossey (re application to amend statement of claim) (District Court of New South Wales, Cowdroy AO QC ADCJ, 15 March 2022).

[15]

Defences

By Third Further Amended Defence filed in court on 7 December 2021 ("the Defence"), the defendant does not dispute that at the relevant date and time the plaintiff was a passenger in the vehicle but does not admit negligence.
The particulars of the Defence are as follows: "1 The defendant admits paragraphs 1, 2, 3 and 4 of the Statement of Claim. 2 The defendant does not admit paragraphs 5 and 6 of the Statement of Claim. 2A The defendant denies owing the plaintiff a duty of care 2B The defendant further denies that any duty of care is owed by the defendant in the following circumstances: (a) At all material times the parties were engaged in a joint illegal enterprise (b) The driving of the vehicle was so tainted by illegal conduct on the plaintiff's part that the defendant could not in the circumstances be expected to act sensibly Particulars The defendant relies upon the commission of the following offences: (i) Sections 10, 12, 19 and 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (ii) Sections 12(1)(a) and 42 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (iii) Section 25(1)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW) 3 If the court is satisfied that a duty of care was owed, notwithstanding the matters set out, in response to paragraph 7 of the Statement of Claim, the defendant admits that she breached her duty of care to the plaintiff but she does not admit the particulars of negligence at sub-paragraphs 7(i) to 7(v) inclusive. Further, the defendant: (a) denies that the plaintiff suffered the injuries alleged as a result of the collision; (b) denies that the plaintiff suffered the injuries alleged as a result of the negligence of the defendant (which is denied); (c) denies that it is appropriate for the scope of the liability on the part of the negligent defendant (which is denied) to extend to the harm so caused pursuant to section 5D(1)(b) of Civil Liability Act 2002. 4 In response to the whole of the claim the defendant says that the plaintiff was at all relevant times a voluntary passenger in the vehicle driven by the defendant. 5 The plaintiff's injury, loss and damage as alleged or at all are not admitted denied. 6 Further, in answer to the whole of the Statement of Claim, the defendant says that if the plaintiff suffered a loss or damage to the extent alleged or at all, which is not admitted denied, such loss or damage was due to the plaintiffs own negligence and there ought be no damages awarded, or in the alternative, any damages awarded to the plaintiff should be reduced accordingly. Particulars of Contributory Negligence (a) Travelling as a passenger in the defendant's vehicle whilst the defendant was affected by drugs and unlicenced. (b) Travelling as a passenger in the defendant's vehicle whilst he knew or ought to have known, that the defendant was affected by drugs and unlicenced. (c) Failing to request the defendant drive at a slower speed or in a manner that was not dangerous. (d) Failing to take sufficient care for his own safety in the circumstances. (e) Participating in an illegal act, namely taking Ice. (f) The plaintiff knew or ought to have known the defendant's ability to drive the motor vehicle was impaired as a consequent of her consumption of the following drugs: (i) Delta-9-THC acid: (ii) Cocaine: (iii) Benzoylecgonine: (iv) Amphetamine: (v) Methylamphetamine. (g) The defendant relies on sections 5R, 5S and section 49 of the Civil Liability Act 2002 as well as section 138 of the Motor Accidents Compensation Act 1999. 7. In response to the Statement of Claim and in response to the Statement of Particulars filed pursuant to UCPR Rule 15.2, the defendant relies on Section 83 of the Motor Accidents Compensation Act 1999 as a defence to the extent of any payments made for or on behalf of the plaintiff. 8. Notwithstanding those matters pleaded above, and in further response to the whole of the Statement of Claim, the Defendant denies she owed the plaintiff any duty of care as the Plaintiff and the Defendant were engaged in a joint illegal enterprise at all material times during the use or operation of the vehicle. Particulars The Defendant repeats paragraphs 6(a) to (f) above."

[16]

The plaintiff's evidence

The plaintiff stated that, at the time of the accident, he resided in Chester Hill with his wife, son and other family members. He said he came to Australia from Lebanon in 1974 and in 1980 returned to Lebanon. In 1993 he returned to Australia. At the date of the accident he was in receipt of Centrelink benefits.
The plaintiff, who is now 67 years of age, was unable to provide the Court with any recollection of the events of the accident. In respect of the plaintiff's recollection of the accident, the following is recorded in the transcript during the plaintiff's cross-examination: "Q. And in fairness to you, the letter went on to say in the second sentence and I'll read it to you. "Our client instructs us he has no further memory of events 6 September 2011 to 8 September 2011"? A. INTERPRETER: The first part, probably could be referring to what my son or my wife have informed me. They know more than I do because I don't remember anything, not even before a minute‑‑" (T 86)
When asked whether he was present when the defendant took illegal drugs, he responded: "No. Not correct and I don't remember." (T 73 line 22)
The plaintiff was asked at T 73 - 74: "Q. In the course of the journey before the accident, the driver, I want to put to you, was so badly affected by the drugs that she'd taken, she pulled over. Do you remember this? A. INTERPRETER: If that's what she said she's probably truthful, but I don't remember. Q. You were awake sufficiently, despite the drugs you'd taken, to ask if she was all right. Do you remember that? A. INTERPRETER: I have no answer for what you say. Q. I want you to assume that the driver of the vehicle has admitted taking a number of drugs before the accident happened, and I'll read it to you what she admits? A. INTERPRETER: In my opinion, don't read it because I don't remember anything. You are wasting time, the court's time. Q. You had had experience with drugs before this accident, hadn't you? A. INTERPRETER: In your dreams."
The plaintiff acknowledged the events of the accident as recounted by the defendant were "probably truthful" (see the above quote).
The plaintiff was asked in examination in chief to describe his relationship with the defendant and the plaintiff gave the following evidence: "Q. Have you been told that the driver of the vehicle you were in, was someone called Peta, P‑E‑T‑A, Lee, L‑E‑E, Cossey, C‑O‑S‑S‑E‑Y? A. WITNESS: Yes, she was like family friend especially my son, they be in school together. Q. And how did you know Ms Cossey? A. WITNESS: From a family and my son, my. Q. Did she ever drive you anywhere? A. WITNESS: Yeah. Drive me, drive my wife, shopping" (T 11)
He went on to elaborate the relationship between himself and the defendant as follows: "Q. Before the accident, what sort of things did you do with Ms Cossey? A. WITNESS: Who is Cossey? Who is Cossey? Q. Did you know her has [sic - as] Lee? A. WITNESS: Yeah, I don't remember her name, Lee, she comes to our house, takes my Mrs shopping, take me doctor, take me places, my son helped our schedules stuff like that." (T 12)
In cross-examination, the plaintiff was asked the extent of driving that the defendant undertook for the plaintiff: "Q. And you've told his Honour that she used to take you and your wife shopping, is that right? A. INTERPRETER: She used to take me to doctor's appointment but she take my wife shopping. Q. What were the doctor's appointments that she took you to? GROSS: Are we talking about before the accident or after, sorry it's a bit unclear your Honour. DEAKIN: I'll make it clear your Honour. Q. You were talking about before this accident being taken to the doctor weren't you? A. INTERPRETER: And my answer is before the accident. Q. What were the doctors that she took you to? A. INTERPRETER: Dr Hanna for my diabetes. Q. And how long had that gone on before the accident that Ms Cossey was taking you to the doctor? A. INTERPRETER: When I need if my son is busy, she will come and take." (T 77)
However, when asked whether he was aware that the defendant did not hold a licence, he said: "A. INTERPRETER: How would I know she didn't have a licence? And every second day comes and drives how would they allow her to drive if she doesn't have a licence." (T 80)
The plaintiff denied knowledge of the defendant's driving licence status: "Q. And you knew before this accident Mr Raad, that she had never held a driver's licence didn't you? INTERPRETER: Before the accident? Q. Yes? A. INTERPRETER: How do you say these words that I don't know that I know that she didn't have a licence and every time she comes to our place, comes driving the car. Q. Did you ever ask her about her driver's licence? A. INTERPRETER: It's not my business to ask her." (T 78)
The plaintiff said he had never asked the defendant her age and did not know how old she was (T 78).
The plaintiff was further asked if he had experience with drugs at T 74: "Q. Had you ever seen anyone affected by drugs before this accident? A. INTERPRETER: I don't remember and I have no experience in these things. Q. You were convicted, as I put to you yesterday, of having drugs in your possession, do you agree with that? A. INTERPRETER: I've already told him that my son and my solicitor pleaded guilty to finish the matter because some people told them to say that and this is all finished. With all these criminal offences, I was only in prison for two months, does that reflect that I'm a criminal? Q. Do you agree that if the driver was seriously affected by drugs before this accident you should not have driven in the car with her? A. INTERPRETER: No‑one in my whole life can use drugs in front of me."
The plaintiff was also unable to remember whether he owned the vehicle involved in the accident: "Q. Do you recall that you were ‑ do you have any understanding who the owner of that vehicle was at the time of this accident? A. INTERPRETER: Go and ask the owner if I know or not. Q. Do you recall a man by the name of Mr Greg Hayes from Birrong? A. INTERPRETER: I have many friends, but I don't remember any of them. Q. Do you remember that only a few days before this accident, you went with Peta‑Lee Cossey to purchase this vehicle, do you remember that? A. INTERPRETER: Me? Q. Yes? A. INTERPRETER: I don't remember anything I have cars, why would I buy a car, I don't remember any of this." (T 80 - 81)
As is demonstrated in Exhibit 14, the plaintiff had used vehicles extensively. He had a significant record of driving offences (Exhibit 14) and had owned more than 26 cars between 1994 and 2008 (Exhibit 14).

[17]

Constable Matthew Colefax

The plaintiff adduced evidence from Matthew Colefax, a constable in the New South Wales Police Force. Constable Colefax was an off-duty police officer at the time of the following events. He testified that at approximately 6am on 8 September 2011, he was driving north bound in Henry Lawson Drive when, approaching a gradual left hand curve, he observed the Ford travelling in the opposite direction in the southbound lane. He said the Ford was travelling "at speed towards me" (T 194), and was moving erratically. As the Ford came closer to his vehicle, it turned in the direction of his vehicle, and crossed into the northbound lane. Constable Colefax braked his vehicle and took evasive action by steering out of the Ford's way. The following exchange occurred: "Q. In terms of suddenness or gradual, how would you describe that movement out of its lane into your lane? A. I'd call it sudden. I was ‑ it was shocking, I was scared, it caused me to have to take evasive action. I had to hit the brakes. The ABS in the car activated and I quickly, you know, tried to steer out of its way and ended up off to the side of the road, on the shoulder and then as I was doing that, that vehicle has then travelled back across ‑ through its lane and then off the other side of the road and into the house."
Constable Colefax moved his vehicle to the shoulder of his laneway to avoid a collision. He saw the Ford swerve suddenly back to the other side of the road, across its southbound lane, and continue to the other side of the road. He heard the engine of the other car revving. It increased speed, "fishtailed", then left the roadway.
Constable Colefax saw the Ford then travel across a grassed area, through a fence before it collided with a boat, then with a house which was located in close proximity to a creek.
Constable Colefax performed a U-turn and stopped his vehicle. He approached the Ford and saw that there was a female who had alighted from the car. Constable Colefax stated that the female, who was the driver, was calling out that she had killed the passenger.
Constable Colefax observed that the female driver (the defendant) was "quite manic. She may have been glassy eyed, she was sort of stumbling around, she was very incoherent and muttering" (T 200). He assessed her age as in her early 30s, and found it difficult to obtain responses to his questions which he asked of her. He recalled her saying, "I killed him, I'm going to gaol". Constable Colefax observed that she was unsteady and described her walking as "pacing" and was repetitively making comments. Constable Colefax believed that the defendant had consumed drugs: "Q. If you were to assume that she later admitted to taking methamphetamine, coke and marijuana, can you assist the Court as to whether her appearance and how she presented herself to you was consistent with her having consumed drugs of that kind? A. It was consistent, and that's why I told her to disclose it to the ambulance." (T 201)
The defendant said to Constable Colefax words to the effect "is he going to die?" (T 198). Constable Colefax responded, "I don't know, I'm trying to help" and "He looks like he's on gear. Has he taken anything" (T 198). The defendant responded "He had some ice" (T 198).
The transcript records: "Q. That's what I wanted to ask you about. What was it that you observed of the passenger in the vehicle that caused you to ask the driver, "He looks like he's on fear [sic - gear]. Has he taken anything?"? A. I think I describe it ‑ if you don't mind, I'll just have a quick look, yeah, so I entered through the driver's side of the vehicle and knelt on the driver's seat and tried to talk to him and he was just sort of groaning. He had glazed eyes, they were sort of half open and I remember he had like a white sort of dry foaminess in the side of his mouth ‑ the corner of his mouth, sort of like ‑ they call it cotton mouth, you see it with people who have taken drugs and that sort of stuff and I‑‑ Q. It was an observation that you have in your experience seen with people who have taken drugs, that they've got some cotton mouth appearance? A. Yes. And in conjunction with the other ‑ the way that he presented, I thought it might be that he was drug affected. Q. And that's why you asked the question? A. Yes. Q. And she gave you the answer that is recorded and that it had occurred as she told you while they were driving in the vehicle? You'll see that in the middle of the page? A. Yes." (T 198-199)
Constable Colefax then entered the Ford through the driver's side and knelt on the driver's seat to talk to the male passenger. He observed that the passenger had glazed eyes and had a "white sort of dry foam in this in the side of his mouth - the corner of his mouth, sort of like - they call it cotton mouth, you see it with people have taken drugs and that sort of stuff and I…"
Constable Colefax had had experience with people having taken drugs. Constable Colefax said: "He had glazed eyes, they were sort of half open and I remember he had like a white sort of dry foaminess in the side of his mouth ‑ the corner of his mouth, sort of like ‑ they call it cotton mouth, you see it with people who have taken drugs and that sort of stuff and I‑‑ Q. It was an observation that you have in your experience seen with people who have taken drugs, that they've got some cotton mouth appearance? A. Yes. And in conjunction with the other ‑ the way that he presented, I thought it might be that he was drug affected. Q. And that's why you asked the question? A. Yes. Q. And she gave you the answer that is recorded and that it had occurred as she told you while they were driving in the vehicle? You'll see that in the middle of the page? A. Yes." (T 199)
Constable Colefax reiterated that he had experience in motor accidents involving drugs. He stated: "Q. You noticed, and you made a note of the fact, that you observed white froth at the edges of the passenger's mouth? A. Mm. Q. What did that indicate to you? A. In terms of an indication, just ‑ that in conjunction with his eyes and appearance and the way ‑ I thought he was affected by drugs, and that's consistent with that. That's why I asked her what I asked her about. I've been to a lot of car crashes and they appeared different to people, obviously people react differently but they appeared drug affected to me." (T 203)

[18]

The defendant's evidence

The defendant testified reluctantly. It was necessary for an arrest warrant to be issued to secure her appearance in court. The defendant stated that she was born on 9 December 1989 and was 21 years of age at the date of the accident. She confirmed that she was the driver of the Ford involved in the collision. As the defendant was to provide evidence that she participated in offences, the court made an order on 20 August 2018 under s 128 of the Evidence Act 1995 (NSW) that no portion of her evidence could be used against her in other proceedings.
The defendant testified that she had personal dealings with the plaintiff ("Raad") and had used drugs with him, "a couple of times a week, sometimes I would be in his company for a couple of days" (T 211). She said that she would take drugs with him, generally methamphetamine, otherwise known as "Ice" (T 212). She said that she was a "pretty heavy user" at about the time of the accident. She said she did not take heroine but smoked marijuana. She had taken cocaine and occasionally ecstasy pills, but very rarely (T 212).
The defendant said that during the days prior to the accident, Raad was with her for some of the time, that she had not slept for about a week, that in the 24 hour period before the accident occurred she had smoked a fair bit of ice and cocaine, which Raad had received from a supplier ("the supplier") who resided in close proximity to The Grandstand Hotel at Warwick Farm ("the hotel").
On the evening of 7 September 2011, the defendant obtained a room at the hotel, and said that she knew she needed to sleep. The defendant gave the following evidence in chief concerning the events at the hotel: "Q. When were you at The Grandstand Hotel at Warwick Farm on the evening before this accident? A. I couldn't tell you exactly what time I checked into The Grandstand but it was the first time I had run into any sort of money and I needed to go to bed. I knew I needed to sleep. I got the room at The Grandstand and that's when Raad had rang while I was there. He came to The Grandstand. One of my friends had rung and she was having some difficulties. Her and her partner come to The Grandstand and they started arguing. I couldn't handle it, I just needed to sleep. So he said, "Okay, well, I will go fishing and you can sleep."" (T 213)
The defendant said that, at the hotel, she and Raad "had smoked a couple of pipes, meaning ice, a couple of lines of coke which he had actually gotten from the guy [the supplier]" (T 214).
The defendant said she and Raad shared the drugs from the early hours of the morning. The sharing took place over more than an hour. The following exchange occurred at T 214: "Q. Again, as best you can; was it an hour, less than an hour, more than an hour that you shared drugs with him‑‑ A. More than an hour." (T 214)
In cross-examination, the defendant stated that she had been in the company of Raad for "a couple of hours" at the hotel (T 235).
The defendant also said that she had frequently consumed drugs with Raad. In cross-examination, the defendant gave the following evidence: "Q. How long before the accident did you first take drugs in that hotel room? A. I don't know, I had taken drugs since I was probably about 14 every single day so I couldn't tell you how long that was. But when something horrible happens to you and you relive it, you don't forget it or forgive yourself. Q. What drugs do you say Mr Raad took in that hotel room? A. Ice with me. Q. Sorry? A. Ice with me." (T 237)
Early the next morning, Raad and the defendant left the hotel. According to the defendant, Raad intended to go fishing at a boatshed at Revesby River (T 227). The defendant was asked questions concerning her driving of the Ford.
The defendant said that Raad was disqualified from driving and that she held an expired learner's permit. She testified: "Q. Can I take you back to the motor vehicle? You did mention that he came to the hotel, how did he get to the hotel, do you know? A. He drove. Q. What was the car that he drove? A. White Ford Falcon. Q. What happened at the hotel as far as driving is concerned? A. He was disqualified, I was on an expired learners permit, it was less ‑ I would get in less trouble than what he would have gotten in drive so I drove. Q. Did he ask you to drive? Did you offer to drive? What happened as far as you doing the driving? A. It is just how it went. He had been disqualified for a while and it wasn't the first time. Any time I saw him, I drove, so he wouldn't get in trouble. Q. So what you are saying to his Honour is this is not the first occasion when you had driven him in a motor vehicle before this accident? A. No. Q. What were the occasions prior to this evening when you drove him in a motor vehicle? A. I drove him to rock Dale [sic - Rockdale] quite frequently for drugs. Q. Where else did you drive him before this accident? A. Anywhere he asked me to. Any time he needed to get drugs, I drove him." (T 214 - 215)
In cross-examination, the defendant gave evidence of the plaintiff's knowledge of her unlicensed status: "Q. You have mentioned your licence and forgive me if I am duplicating this; you had an expired learners permit and no other licence, that is correct, isn't it? A. No other licence. Q. Had the topic of your licence ever come up for discussion between yourself and Mr Raad before the accident? A. Yes. Q. What was said about that? A. "You are disqualified, I am expired, I would have got in less trouble."" (T 218)
The defendant gave evidence that she was with Raad when Raad purchased the Ford (which was driven by the defendant and involved in the accident) from a man (full name redacted) at Birrong (T 215): "Q. How long before this accident was it that you were at Birrong with a man who you knew as Greg? A. I had been there a couple of times with Raad prior to the accident and prior to him buying the car."
The defendant could not recollect when the Ford was purchased, but stated: "I had been to Greg's house for a space of over maybe two, two to three weeks with Raad on several occasions before the accident." (T 216)
The defendant was asked questions concerning the accident. The defendant said that after leaving the hotel she drove the Ford but she stopped the vehicle about five minutes before the accident. She testified: "A. I pulled off North paragraph [sic - Telegraph] Road onto Henry Lawson drive just after the set of lights and got out and lent [sic - leant] against the bonnet. Q. Take it slowly. You got out and you lent [sic - leant] against the bonnet? A. He asked me if I was okay and I said, "I shouldn't be driving. I really shouldn't be driving. I need to go to sleep." "Five more minutes Peta [referring to the plaintiff], we are nearly there" Q. That is a quotation of what he said to you? A. Yep. Q. What did you say to that? A. I looked at him and all I thought was "I just need to go to sleep", I got back in the car and continued Q. At that point, can you assist his Honour about how far is that from where you run off the road? A. Five minutes literally." (T 219)
The defendant described her condition when she stopped the vehicle and leant against the bonnet as follows: "A. I was all over the shop. I couldn't stand up straight. I couldn't talk. Anything I was saying wasn't making sense. You would have taken one look at me and said I was completely psycho or I was absolutely out of it. Q. In terms of what you are saying, were you making any sense at all? A. No. Q. In terms of your balance or your steadiness on your feet, what was the position? A. I had to lean against the bonnet of the car to be able to stand up. Q. In terms of your manner of speech to the extent you were saying any words, was it clear and articulate or something else? A. No, it was slurred, it was snappy, it was all over the shop".
The defendant testified that she found small satchels of ice and cocaine in the Ford after the collision. She said: "Q. What was in the car by the time it came to rest? A. There was small satchels, a few of them, satchels of ice and cocaine. Once the car come to rest Raad wouldn't wake up. I emptied his shirt pocket and they were all over the floor and put them into my wallet. Q. Why did you do that? A. So he didn't get into trouble." (T 219 - 220)
The defendant agreed that she told Constable Colefax that she had taken ice. The defendant also acknowledged that the cocaine found in her wallet was owned by Raad. The defendant had removed the drugs from Raad's shirt pocket immediately after the accident. The defendant said in cross-examination: "Q. Could I ask this: why did you put the cocaine into your wallet? A. Because that's me. I considered him family. I thought I had nearly killed him. I didn't want anything to help to [sic - harm] him when he woke up. He was like the father I didn't have back then. Q. Did you put the cocaine into your wallet so that you could use it? A. Well, it wasn't to look at. I was a drug addict back then, of course it wasn't to look at. Q. Did you put it in your wallet in order to hide it from the police? A. I put it in my wallet because I didn't want him to get in trouble. Like I said, he was like a father back then. Q. Where did you put your wallet? A. I don't know. HIS HONOUR Q. You said he was like a father back then; how did you come to meet Mr Raad? A. Through a mutual friend of ours. Q. Had he supplied you with drugs? A. He helped me get them on an occasion." (T 238)
The quantity of cocaine found in the defendant's wallet were the property of the plaintiff. The following is the evidence on ownership of the drugs: "Q. Now, whose drugs were they? A. Raad's. They were the drugs that he had taken from the man that was two doors down or whatever it was at The Grandstand Hotel." (T 220)
The defendant said that she had consumed alcohol before driving the vehicle involved in the collision and had thrown a "can of bourbon out the window just before I pulled over" (T 221).
In cross-examination, it was suggested that the defendant was attempting to damage Raad's case: "Q. Are you trying to, in effect, damage Mr Raad's case by giving false evidence here? A. No. I left his life style behind. I am a mother. I live with this accident. I went bankrupt over this accident. I lost my life over it. I copped his charges, now for him to be suing for his injuries? There is a lot more I could say but I wouldn't." (T 228)
The defendant replied that she had left Sydney and "left my past as my past, behind me, and I don't have any intention of throwing myself under a bus" (T 223).
In cross-examination, it was suggested to the defendant that she had provided inconsistent answers to an NRMA investigator. In response, the defendant said: "Q. What did you tell the investigator was said when you stopped the car and got out of the car? A. Exact same answer I just gave you. I don't remember what I had said to the NRMA investigator. Since I came up here I have tried this thing called honesty, Raad should try it. He might get a bit further. I looked up to him. Q. So the statement to the investigator, when was that statement made? A. I don't remember. It was once I had moved out of Sydney which was after 2013 ‑ October 2013, to be exact. Q. Was the statement made last year? A. I don't recall, I don't remember when he was there. Q. At the time when you saw the investigator what was your memory like of events? A. My memory of events? The only thing I actually remember about the conversation was what the ‑ excuse my language ‑ what the fuck do I do? That was all I could think. Q. Why were you asking yourself that question? A. Because if I be honest in that world there is repercussions. Q. Did you tell the investigator the truth? A. I don't know what I told the investigator so I can't answer that. You can ask me that question a million times, you are going to get the same answer. Q. Is it quite possible that you told the investigator lies? A. If I see what I actually said to him I will tell you exactly what I lied about. I would like this to end. It is a big enough nightmare. Q. You have been convicted of offences of dishonesty in the past? A. Dishonesty? Q. Yes A. I've been convicted of drug offences, driving offences, I have never been charged with being dishonest" (T 232)
The defendant acknowledged that the statement she provided to the police on 3 November 2011 was "not 100% correct"; and that she had, in the past, lied to the police. The following exchanged occurred: "Q. Did you then tell the police officer, "I do remember at one stage I had pulled over the car"? A. Yes. Q. Was that correct? A. Yes. Q. Then you added, "Raad, my passenger, had asked me if I was okay, and I said, 'yes'." Is that correct? A. No, it's not correct, but that's what I said." (T 224)
Other discrepancies in her statement were put to the defendant, namely in respect of her driving ability but she confirmed that the following conversation occurred when she stopped the vehicle: "Q. Is that what in fact occurred, yes, did that conversation take place? A. No, not exactly that way. The conversation that actually occurred was, I pulled over, I got out, leant against the bonnet, his exact words were, "Are you okay, habubib?" That replays in my head every day? HIS HONOUR Q. Are you okay? A. Habubib, like darling girl. GROSS Q. I'm sorry, "Are you okay" what? A. Habubib, darling girl. Q. And you replied, "Yes"? A. No. My actual response to him was, "No, I'm fucked." "Habubib, five minutes we'll be at the boat shed." Q. What boat shed are you talking about? A. Revesby, Revesby River. Q. What was the ‑ were you driving to Revesby River? A. We were. Q. The boat shed? A. Yes. Q. For what purpose? A. So he could fish and I could sleep." (T 226 - 227)
The defendant was asked: "Q. Having got out of the car did you feel capable of getting to the place where you going to drop him off? A. No, I didn't, or I wouldn't have gotten out of the car and leaned against the bonnet, I would have just kept driving." (T 229)
The following questions were put to the defendant: "Q. He asked you whether you were okay to drive, didn't he? A. He said, "Honey bee, are you okay?" Q. You said that you were okay to drive. A. No, that's what I had said in my statement. I have just been over this with you. That's what I said in my statement. Him as the owner of the vehicle has a legal obligation to not allow me to drive knowing I am unlicensed or under the influence." (T 230)
The defendant's driving record contains entries of several defaults and confirms that on 29 August 2012 at Bankstown Local Court she was convicted of being an unlicensed driver on 8 September 2011, namely the date of the collision which is the subject of these proceedings.
The defendant stated that she had been found guilty at Bankstown Local Court on 29 August 2012 of having a quantity of prohibited drug namely 1.3 g of cocaine in her possession. The conviction resulted from drugs being found in the defendant's wallet at the scene of the accident.
The plaintiff's driving record has also been tendered. It confirms that on 26 June 2011 at Burwood Local Court the plaintiff was found to have driven whilst disqualified and on the same day was declared a habitual offender. The plaintiff had been previously declared a habitual offender on 2 December 2009, 6 June 2012, 28 March 2013 and 27 May 2015.

[20]

Evidence of Dr Perl

Dr Judith Perl, consultant pharmacologist, has provided a report dated 11 April 2015 (Exhibit 8, pp 20 - 40). Such report, admitted into evidence without objection, records that Dr Perl had been provided with the Police Report, transcript of a court hearing dated 29 August 2012 (date of conviction of defendant) and other records relating to the accident, including the NSW Ambulance Report.
Dr Perl stated that methylamphetamine is "a central nervous system stimulant which can impair driving ability by altering perceptions and judgement [sic] and increasing aggressive or risk-taking behaviour during the acute phase of intoxication. This drug can also produce hallucinations." Such drug also "impairs visual scanning… for environmental stimuli and decreases the ability to filter out stimuli that are irrelevant to the task, as a result driving ability is impaired…" (Exhibit 8, p 23). Dr Perl also stated that "Methylamphetamine use is epidemiologically associated with increased traffic crash risk" (Exhibit 8, p 24).
Dr Perl states at paragraphs 7 to 13 (Exhibit 8, p 24): "7. Methylamphetamine reaches a maximal blood concentration approximately 2.5 hours after consumption irrespective of the means of administration and the half-life of the drug is approximately 11 hours (de la Torre et al., 2004). The half-life of a drug is the time for the peak blood concentration to decrease by 50%. 8. The blood concentration of methylamphetamine detected in the Driver is well above the expected "therapeutic" levels of 0.01 to 0.05 mg/L and is around the toxic and potentially fatal range which has been reported as greater than 0.1 mg/L (mean 0.23 mg/L) (Stead & Moffat, 1983). 9. Low doses of methylamphetamine generally results in reduced appetite, increased alertness and energy, a general increase in activity and a sense of well-being. Low, therapeutic doses have been reported in some studies to increase alertness and therefore improve some psychomotor skills (Baselt, 2001), particularly in fatigued subjects. However, in some persons even therapeutic doses can produce restlessness, dizziness, insomnia, mild confusion or even panic states. 10. High doses of methylamphetamine generally produce extreme wakefulness, a rapid flow of ideas with attention jumping from one thing to another as if in a manic state, talkativeness, rapid speech, inability to concentrate, agitation, jerky movements, possible paranoia or hallucinations. With high doses there are altered perceptions and judgement and increased aggressive or risk-taking behaviour during the acute phase of intoxication. There can also be hallucinations. 11. Epidemiological studies, which generally involve recreational methylamphetamine users or abusers of this drug, do indicate that methylamphetamine adversely affected the skills required for safe driving (Logan, 2002; Baselt 2001). 12. Typical behaviour displayed by methylamphetamine users in the acute stage after usage of recreational doses, include increased activity and alertness, talkativeness and restlessness. There will also be insomnia, a loss of appetite, increased blood pressure, pupil dilation and increased sweating. Higher doses can result in pallor, hypre-reflexia, the user can become submerged in a flood of thoughts and thoughts can jump from one thing to another as in a manic psychosis, there can be continually repetitive, purposeless movements, paranoia and hallucinations, although consciousness is usually clear. 13. Methylamphetamine is a potent central nervous system stimulant. The adverse effects of methylamphetamine increase with dose and frequency of dosing. They are commonly seen during a "run", when the user ingests numerous doses of drug over several days during which the user remains hyperactive, stimulated, in a euphoric state characterised by rapid speech, often jerky movements, dilated pupils which are relatively unreactive to light, high energy, depressed appetite, tremors, increased agitation paranoia, apprehensiveness, confusion and occasionally hallucinations. A "run" usually ceases because the user becomes too disorganised and confused. This is then followed by a period of marked withdrawal during which there is extreme fatigue, exhaustion, sleepiness and depression. Thus, the actions of methylamphetamine are biphasic in nature, with the acute affects caused by the stimulation of the CNS whereas the second phase is dominated by rebound fatigue and sedation (Gustavsen et al., 2006; Logan 2002). During this stage the driver may experience drowsiess/sleepiness/fatigue, a slowing of reactions and impairment of perceptions and judgement (Logan, 2002)."
Dr Perl continued to make the following observations at paragraphs 14 and 15 (Exhibit 8, pp 25 - 26): "14. The reactive depressive phase is often referred to as the "comedown" or "crashing". During this phase, there can be severe depression and suicidal tendencies associated with this withdrawal. Thus, the withdrawal is potentially dangerous and frequently results in more impairment of driving ability than the impairment due to acute stimulation particularly if the drug is used to delay the effects of fatigue due to lack of adequate sleep and rest. In a state of increased fatigue or drowsiness, perceptions and judgement [sic] would be likely impaired, reactions would be slower and responses to an event such as the veering of an on-coming vehicle would most likely be slower. 15. Acute effects of methylamphetamine use frequently results in driving behaviours such as driving at an excessive speed, overtaking and aggressive and risk-taking behaviour. Methylamphetamine withdrawal results in a drug-induced reactive depression of the central nervous system and generally results in driving behaviours associated with increased drowsiness or sedation such as deviating from the lane or weaving behaviour in additional to slower reactions."
At paragraphs 28 and 29 of this report (Exhibit 8, pp 28 - 29), Dr Perl made the following observations about the defendant, which I note are consistent with the defendant's evidence at trial: "28. The Driver advised she used "hell of a lot" of drugs prior to the collision and 3-4 grams of methylamphetamine in the form of "ice" and 2 grams of cocaine is a much higher dose than the average recreational dose. This stated level of usage is consistent with her high methylamphetamine level and significant cocaine level. She also stated that she pulled over before the collision because she felt affected by the drugs. She also indicated to Police that the Claimant had asked her if she was okay. The Driver was seen to be driving at high speed, she veered from the road and hit the guard rail before overcorrecting and fish-tailing and then colliding with the fence. 29. Therefore, based on the blood results which are consistent with the heavy use of methylamphetamine and cocaine prior to the collision, based on her own subjective assessment that she felt affected and based on her manner of driving, I am of the opinion the Driver would have been very significantly impaired in her ability to drive. Given these factors she would have been in the acute stage of stimulation due to methylamphetamine and cocaine and she would most likely have been displaying the signs of acute intoxication due to these drugs. Typical signs and behaviours displayed by stimulant users in the acute stage after usage of moderate to high doses, include increased activity and alertness, talkativeness, restlessness, pupil dilation, increased sweating, a euphoric stage characterised by rapid speech, often jerky movements, high energy, tremors and increased agitation. These signs would have been available to the Claimant. In addition the manner of driving by the Driver should have also been noted by the Claimant. When she pulled over, the Driver states the Claimant asked her if she was alright, therefore, it appears he did consider there was something wrong."
Dr Perl formed the following opinion: "34. If the Claimant had used "ice" (methylamphetamine) prior to the collision then his cognitive and motor functions may have been impaired by the drug but this would depend on the dose used, when it was used and how often he uses it. If it is accepted that he asked the Driver if she was alright when she pulled over, then it is likely he was still in a position to consider that she may have been affected. Furthermore, if he did use methylamphetamine around the same time as the Driver (and she appeared to have been in the acute state of intoxication), then it is highly likely that he would have been asleep at the time of the collision (as indicated in his Claim Form and indicated to Dr Banks). Summary of Opinion 35. In summary, the Driver would have been impaired by the acute effects of methylamphetamine and cocaine at the time of the collision. My opinion is based on the admissions of the Driver, the manner of driving witnessed and the blood levels of the drugs in the Driver. Given her manner of driving she would not have had proper control of the vehicle. I would also expect her to have displayed obvious signs of intoxication when she left the hotel where she allegedly used drugs. The expected signs of intoxication and the manner of driving would have been available cues to the Claimant in assessing the Driver's ability to drive, especially if he did not use drugs as indicated by him." (Exhibit 8, p 30)
Dr Perl provided a second report dated 26 July 2018 (Exhibit 8, pp 41 - 50). At paragraphs 2 - 8, Dr Perl opined: "2. In Point 28, I noted the Driver advised she used a "hell of a lot" of drugs prior to the collision (she indicated to Police she used them around 3 hours prior to the collision), including 3-4 grams of "ice" (methylamphetamine) and 2 grams of cocaine. I also noted this alleged usage would be consistent with her blood concentrations of those drugs. Furthermore, the Driver admitted she pulled over because she felt affected by the drugs. 3. Therefore, given the Driver's alleged use of the drugs and her alleged subjective effects of intoxication (she indicated she could walk but she was talking "absolute crap" and she was in another world - effects which are consistent with excessive stimulant use), I would also expect the Driver to have displayed signs and symptoms prior to commencing to drive and during driving. These signs and symptoms would include increased activity and alertness/extreme wakefulness, a rapid flow of ideas with attention jumping from one thing to another as if in a manic state, talkativeness, rapid speech, inability to concentrate, agitation, jerky movements, pupil dilation, increased sweating, possible confusion, paranoia or hallucinations. 4. Not only would the Driver have displayed the signs and symptoms of intoxication due to methylamphetamine and cocaine, but her alleged manner of driving was also consistent with her degree of intoxication. Constable Matthew COLEFAX stated he was travelling on Henry Lawson Drive around 6 am when he saw the Driver travelling towards him. The vehicle driven by the Driver moved from the southbound lane into the northbound lane forcing him to take evasive action and then the Driver swerved back, fish-tailing across the kerb and crossing into a grassed reserve. The engine of the vehicle was heard to be revving harshly and the vehicle drifted sideways into a fence and collided with the property. The observed manner of driving by the Driver, is consistent with the expected impairing effects of stimulant drugs such as methylamphetamine and cocaine in the acute stage of intoxication when manner of driving is likely to include driving at an excessive speed, overtaking and aggressive and risk-taking behaviour. 5. Assuming the Driver used the drugs about 3 hours prior to the collision, the peak effects of the stimulant drugs methylamphetamine and cocaine would have occurred within the 1-2 hour prior to the collision and around the time of the collision and with the passage of time over the next 4 hours after the collision, I would expect these signs to significantly diminish and the Driver would progressively appear to get more drowsy, sedated (sleepy in appearance). 6. I also indicated the expected signs and symptoms relating to various concentrations of cocaine in Points 19 and 20 (page 7) of my previous report. Assuming she also used the cocaine around 3 hour prior to the collision, the effects of cocaine, which are very similar to those of methylamphetamine, would have increased the signs indicated above in Point 3 above. 7. I indicated in Point 27 of my previous report, that it is unlikely the Driver would have appeared affected or intoxicated due to her use of cannabis, given the alleged time of use and given the relative effects of the very significant methylamphetamine concentration combined with the effects of cocaine. The effects of the stimulants would have been far greater than any expected effects of cannabis. 8. As previously indicated, the signs and symptoms due to high dose methylamphetamine and cocaine use by the Driver would have been available to the Claimant. In addition the manner of driving by the Drive should have also been noted by the Claimant. When she allegedly pulled over due to her subjective feelings of intoxication, the Driver states the Claimant asked her if she was alright, therefore, it appears he did consider her state of intoxication."
Dr Perl was not required for cross-examination.

[21]

The plaintiff's submissions on liability

The plaintiff submitted that: 1. The defendant owed a duty of care to the plaintiff; 2. That there was a breach of that duty (s 5D Civil Liability Act 2002 (NSW)); 3. There is no basis for the defendant to rely upon the provisions of ss 5B(1)(a) and 5B(1)(b) Civil Liability Act to avoid liability; 4. That with regard to contributory negligence, the facts must be given effect to: 1. When the vehicle driven by the defendant stopped, the defendant told Constable McSweeney as follows: "I do remember at one stage I pulled over the car, Raad, my passenger has asked me if I was okay and I said "yes". 1. The plaintiff also relied upon the fact that the defendant drove the car from the Grandstand Hotel for approximately 10 minutes without accident before she stopped the car, thereby demonstrating that she was capable of driving the car. 2. That s 5R(1) of the Civil Liability Act applies, and that for the purposes of s 5R(2) the standard of care required of the plaintiff is "that of a reasonable person in the position of that person". Further, as to s 5B namely what risk the plaintiff knew or ought to have known and what a reasonable person in the plaintiff's position would have done by precautions, is dependent upon the evidence. 3. The Court must take into account the provisions of s 138 of the Motor Accidents Compensation Act 1999 (NSW). The principal issue is whether the plaintiff was aware or ought to have been aware that the defendant's ability to drive the vehicle was impaired as a consequence of the consumption of alcohol or another drug (s 138(2)(b)(ii)). The Court notes that the s 138 MACA refers to a plaintiff's awareness whereas the defence relating to contributory negligence refers to the plaintiff's knowledge, which is the test under s 5B Civil Liability Act. According to the Macquarie Dictionary definition of "knowledge", it is to be equated to "the state of being cognisant or aware, as of a fact or circumstance." 4. If, contrary to the above submissions the court considers that contributory negligence exists, the plaintiff submits that the maximum contribution by the plaintiff would be 10% having regard to the fact that: 1. the cause of the accident was the failure of the defendant to properly manage or control the vehicle so that it did not leave the road surface; 2. if the defendant's intoxication by drugs caused or substantially contributed to the accident, such conduct constitutes criminal conduct in breach of the rules aimed at road safety; 3. that the defendant was able to tell the police that she was "all right" and that she may have been affected not only by tiredness but also by drugs, but did not confess that she was not fit to drive when the plaintiff specifically asked her the question whether she was able to drive following her stopping the vehicle en route to the destination; 4. that the defendant's lawyers would be required to show unreasonable conduct by reference to the criteria in negligence contained in s 5B. However, the defendant revived herself and assured him that she was fit to drive; 5. that there is no evidence that the plaintiff was aware when he met the defendant at the hotel that other tiredness or drug consumption made her unable to drive; 6. that the risk that she would cause the vehicle to leave the roadway was not a risk which he knew or ought to have known under s 5B(1) and therefore he was entitled to treat the risk of injury from road collision as being insignificant within s 5B(1)(b); and 7. that he would be acting in accordance with the standard that a reasonable person in his position would have acted in accordance with s 5B(1)(c). The plaintiff was unable to determine the presence and extent of drugs in the defendant system, as revealed by the analysis certificate. The defendant had a greater capacity to be aware of such risks rather than the plaintiff. 1. In the plaintiff's submissions dated 3 December 2021, the plaintiff revised the contribution of the plaintiff to a maximum of 15%. The plaintiff submits that the defendant has a high level of fault resulting from the lack of skills in driving and also from the breaches of the statutory provisions prohibiting driving under the influence of drugs and alcohol and the criminal provisions regarding consumption of illegal drugs. The plaintiff submits that the defendant's failure was extreme. The plaintiff had "trusted the defendant to drive him the short distance of 20 minutes to where he would go fishing" (plaintiff's submissions, paragraph 27). 2. The plaintiff relies upon the fact that the defendant was tired and that her fault was greater because "she should not have misinformed the plaintiff when he made the specific enquiry of her on this subject. She knew the extent and cause of her tiredness (i.e. no sleep for a week, but there is no evidence that he was told or knew of this)" (plaintiff's submissions, paragraph 39) 3. The plaintiff submits that the drugs which "she admitted taking in his presence were all "uppers" (i.e. designed to increase alertness rather than induce sleep). The plaintiff was entitled to believe that her drug consumption would make her simply a more alert driver" (plaintiff's submissions, paragraph 42). 4. The plaintiff submits that the risk that the defendant would go off the road was "not a risk of which he knew or ought to have known under s 5B(1). He was entitled to treat the risk of injury from a road collision as being insignificant within section 5B(1)(b), and he would be acting in accordance with how a reasonable person in his position would have acted in accordance with section 5B(1)(c)" (plaintiff's submissions, paragraph 43). 5. As to the defendant's evidence relevant to liability, the plaintiff refers to several extracts of the evidence which have already been referred to and submits that there is no scientific evidence, nor blood test taken, to suggest that the plaintiff was under the influence of any drugs; the fact that "the plaintiff may have been glassy eyed and something coming from his mouth is also consistent with a number of injuries that he may have sustained including a head injury as a result of the motor vehicle accident" (plaintiff's submissions, paragraph 60). 6. The plaintiff submits that it was not a joint criminal enterprise, there was no complicity in the committing of the offences and the relevant statutory provisions are not applicable. 7. The plaintiff submits that the accident resulted not from drug related impairment but from the fact that the defendant was tired. The defendant said that she had not slept for a week and needed to sleep at the hotel.
The plaintiff initially relied upon the provisions of s 54 of the Civil Liability Act 2002 (NSW) which 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."
The plaintiff initially submitted, prior to the Court of Appeal's decision of Bevan v Coolahan [2019] NSWCA 217 and the second and third MAS referrals (in August 2018 and February 2021 respectively), that s 54(1) of the Civil Liability Act 2002 (NSW) prevails, overriding any common law principle of joint illegal enterprise; and that such section was a total answer to the claim of the defendant that the principles in Miller which operate to prevent a duty of care being owed by the defendant to the plaintiff. The plaintiff now abandons any such submissions concerning the operation of s 54 in relation to the current proceedings.

[23]

Plaintiff's credit

The plaintiff gave evidence through an interpreter. I am mindful of the warnings expounded by his Honour Ipp JA in the New South Wales Court of Appeal decision in Goodrich Aerospace Pty Limited v Arisic [2006] NSWCA 187 at [28]-[30] that issues such as demeanour should be given lesser weight, if at all, when compared to other conflicting objective evidence which the trial judge must consider.
The plaintiff gave evidence which the Court found was inconsistent with his other evidence. The plaintiff stated that he had "no experience" (T 74) with drugs. Exhibit 1 records that the plaintiff was convicted of having committed the following offences: 1. 5 December 2010 - Two counts of possessing prohibited drug (convicted 20 July 2011) 2. 4 July 2013 - Two counts of possessing prohibited drug (convicted 2 July 2015) 3. 25 October 2013 - Possessing prohibited drug and possession of equipment for administering prohibited drug (convicted 2 July 2015) 4. 5 November 2013 - Possessing prohibited drug (convicted 2 July 2015) 5. 8 December 2013 - Possessing prohibited drug and possess / attempt to prescribed restricted substance (convicted 2 July 2015)
Further, the plaintiff said that he was "never" convicted of possessing drugs in December of the preceding year to the hearing (T 47): "Q. You were in fact convicted of possessing drugs in December last year weren't you? A. INTERPRETER: Never. Q. I put it to you, that you were convicted of possessing a prohibited drug and fined $660 at the Bankstown Court, what do you say to that? A. I never been to that Court and I don't remember ‑ I never went at that time to the Court and I don't remember going to that Court."
According to Exhibit 1, which is the New South Wales Criminal Record, the plaintiff was fined on 1 December 2017 for possessing a prohibited drug at Bankstown Local Court. The plaintiff's criminal record records numerous convictions relating to possessing prohibited drug and of having equipment for administering prohibited drugs.
The plaintiff was unable to recollect whether he owned a motor vehicle. The evidence establishes that he had purchased the Ford only a few days before the accident, paying for it partly in cash and partly in drugs. Exhibit 14 which records motor vehicle registrations shows that the plaintiff has owned 26 vehicles since 1994.
In respect of the planitiff's driving licence, the plaintiff gave the following evidence: "Q. Before the accident and at the time of the accident, did you have a driver's licence? A. INTERPRETER: I had a full licence before the accident." (T 18)
The plaintiff's criminal record from 2001 records that he was convicted of driving on a road when his licence was cancelled. In 2005, he was convicted of driving a vehicle, "never having held a driving licence". The same offence was committed in August 2009 and October 2009. The plaintiff committed the offence of driving whilst disqualified from holding a licence on 7 November 2010, and again on 6 November 2011, 3 December 2011, 2 January 2013, 29 July 2013, 25 October 2013, 1 June 2016 and 17 September 2017.
The plaintiff has been convicted of the offence of driving a motor vehicle whilst disqualified from driving on 17 September 2017, and sentenced to six months imprisonment, suspended on him entering into a bond. The plaintiff was declared a habitual offender on the following dates: 1. 2 December 2009 at Bankstown Local Court; 2. 28 June 2011 at Burwood Local Court and disqualified for five years from driving; 3. 6 June 2012 at Bankstown Local Court; 4. 28 March 2013 at Fairfield Local Court; and 5. 27 May 2015 at Liverpool Local Court.
The habitual offender declarations were made in each case following numerous driving offences committed by the plaintiff as recorded in Exhibit 14.
The plaintiff had also been convicted of the offence of driving an uninsured and unregistered motor vehicle on 23 August 2009, 7 November 2010, 6 November 2011 and 29 July 2013 (when he was also convicted of driving with the illicit drug in his blood).
Where the plaintiff's evidence departs from documentary evidence, I prefer the documentary evidence, such as the NSW Police records, which evidence is unchallenged.
Not only does the plaintiff rely on his family members to refresh his memory, the plaintiff defers to the version of events given by the defendant, describing her version as being "probably truthful". As the plaintiff stated at T 73: "Q. In the course of the journey before the accident, the driver, I want to put to you, was so badly affected by the drugs that she'd taken, she pulled over. Do you remember this? A. INTERPRETER: If that's what she said she's probably truthful, but I don't remember."
The plaintiff gave evidence as to his relationship with the defendant, and to the fact that the defendant had driven the plaintiff and his wife on prior occasions for shopping and appointments (T 77 and 80). I accept that the plaintiff and the defendant were in a close relationship and the defendant's description of their relationship as one being akin to father and daughter as being accurate. This can be demonstrated by the plaintiff's use of the word "habubib", which the defendant said meant "darling girl" (T 226 - 227), when they stepped out of the vehicle shortly prior to the accident. It is clear that the plaintiff also has a certain level of trust in the defendant, as otherwise he would not have allowed the defendant to drive him and his wife on prior occasions, as well as on the morning of the accident. This trust extends to the plaintiff deferring to the defendant in her description of the events in question.
For the above reasons, the Court does not regard the plaintiff as a reliable witness.

[24]

Defendant's credit

The Court finds that the defendant was a credible witness in relation to her testimony. Although attacks were made on her credit, the Court is satisfied that she was truthful in her account of the events. It is obvious that the defendant and the plaintiff had an unusual relationship. The relationship appears to have developed because the plaintiff was able to supply the defendant's need for drugs at a time when she was drug dependent. The relationship developed to one of dependency, such that the defendant described the plaintiff as being akin to her father "I didn't have back then" (T 238) and a member of the family. There is no other suggested basis for such a relationship between a 21 year old girl and a 57 year old man (as at the date of the accident). The Court notes that the plaintiff claims that the defendant met his son at school, but there is no other evidence of any relationship between the plaintiff's son and the defendant.
The Court infers from the defendant's testimony that in the 11 years since the accident, the defendant has changed her lifestyle and that she is not now dependent upon drugs. She is now a mother of a child and relocated out of Sydney. The Court considered that she gave her evidence frankly and honestly, and that her previous lifestyle as a drug addict has changed since the accident. She said: "Q. Are you trying to, in effect, damage Mr Raad's case by giving false evidence here? A. No. I left his life style behind. I am a mother. I live with this accident. I went bankrupt over this accident. I lost my life over it. I copped his charges, now for him to be suing for his injuries? There is a lot more I could say but I wouldn't." (T 228)
The plaintiff submitted that the defendant was not a witness of credit because she had lied to the police. The defendant readily acknowledged that she told the police at the scene of the accident or immediately thereafter that she felt "okay" when she stopped the vehicle five minutes before the accident. The following cross-examination is recorded at T 229 - 230: "Q. Having got out of the car did you feel capable of getting to the place where you were going to drop him off? A. No, I didn't, or I wouldn't have gotten out of the car and leaned against the bonnet, I would have just kept driving. Q. But once you got out of the car, he asked you about whether you were okay to keep driving? A. Yes, and we just went over this question. Q. Please. When you got out of the car‑‑ A. Yes. Q. ‑‑and had a breather, is that right? A. You could say that. Q. He asked you whether you were okay to drive, didn't he? A. He said, "Honey bee, are you okay?" Q. You said that you were okay to drive. A. No, that's what I had said in my statement. I have just been over this with you. That's what I said in my statement. Him as the owner of the vehicle has a legal obligation to not allow me to drive knowing I am unlicensed or under the influence. Q. Who taught you that? Who taught you that one? A. I wanted to be a criminal defence lawyer until I destroyed my life."
The defendant acknowledged that this was not correct. However, she made such statements to protect the plaintiff arising from their relationship which existed at the time of the accident. The defendant considered that the bringing of the claim by the plaintiff was unjustified. The defendant said: "I considered your client family so no, I am not trying to jeopardise his case. But enough's enough" (T 231).
The defendant later said: "Q. What did you tell the investigator was said when you stopped the car and got out of the car? A. Exact same answer I just gave you. I don't remember what I had said to the NRMA investigator. Since I came up here I have tried this thing called honesty, Raad should try it. He might get a bit further. I looked up to him." (T 232)
Accordingly, the Court accepts that the motor vehicle accident occurred in a manner she described and followed the consumption of drugs by both herself and by the plaintiff. The defendant was not challenged in cross-examination concerning her drug taking with the plaintiff prior to the accident.
Since the plaintiff claims to have no memory of the accident or the events leading to the accident, the only evidence relating to the accident is that of the defendant and of Constable Colefax.

[26]

Factual findings

Accordingly, I make the following factual findings: 1. The defendant had known the plaintiff for some years prior to the accident (T 210 line 26) and he was like a father to her (T 238 line 14). As a consequence, the plaintiff had influence over the defendant. 2. The plaintiff had supplied the defendant with drugs for her drug habit over several years prior to the accident; 3. Prior to the accident, the defendant regularly used drugs with the plaintiff (T 211 - 212); 4. Prior to the accident, the defendant used to drive the plaintiff frequently to obtain drugs (T 215 line 15). Further, the defendant would drive the plaintiff because the plaintiff was disqualified from driving; 5. At the time of the accident, the defendant did not hold a driving licence as was known to the plaintiff (T 218 lines 36-41). The defendant had an expired learner's permit and did not hold a current driving licence. The defendant drove the plaintiff to avoid him being found to be driving whilst disqualified (T 214 - 215). 6. Prior to the accident, the plaintiff purchased the subject vehicle (which was involved in the accident) from Gregory Hayes at Birrong, "partly in cash and partly in ice" (T 218 line 2). 7. The plaintiff was the owner of the vehicle at the time of the accident and, at the time of the accident, satchels of methamphetamine (ice) were being carried in the car. 8. On 7 September 2011 the defendant checked into a room at the Grandstand Hotel at Warwick Farm (T 213 line 42). 9. The plaintiff joined the defendant in her room at the Grandstand Hotel early in the morning of 8 September 2011 (T 213 line 43). 10. The defendant had consumed ice, cocaine and marijuana in the hours before the accident (Exhibit 8, page 91). The defendant had not slept in about a week (T 213 line 1). 11. The plaintiff and the defendant smoked ice and had a couple of lines of cocaine together (T 214 line 7) for more than an hour (T 214 line 39) in the early morning on 8 September 2011 at the Grandstand hotel (T 214 line 25; see also Exhibit 18, page 8). 12. The plaintiff had obtained cocaine from a supplier at a property in close proximity to the Grandstand Hotel (T 213 line 12). 13. The plaintiff informed the defendant that he wanted to go to a boat shed at Revesby River to fish. The plaintiff needed the defendant to drive him as he had been disqualified from driving. 14. It is unclear from the defendant's oral evidence whether tiredness, per se, was conveyed to the plaintiff. However, it is clear from Dr Perl's second report that signs of the defendant's intoxication would have been "available" to the plaintiff prior to the commencement of their journey: see [104] of this judgment; see also paragraph 35 of Dr Perl's first report set out at [105] above and paragraph 8 of Dr Perl's second report set out at [106] above). 15. On many occasions prior to the accident, the defendant had driven the plaintiff because the plaintiff was disqualified from driving by agreement to avoid the plaintiff being exposed to a penalty for driving while disqualified. The defendant said "[i]t is just how it went. He had been disqualified for a while and it wasn't the first time. Any time I saw him, I drove, so he wouldn't get in trouble." (T 215 lines 3-4). 16. By a common understanding between the plaintiff and the defendant, on the morning of the accident, the defendant drove the Ford with the plaintiff as passenger on leaving the Grandstand Hotel for the reason that she and the plaintiff knew that the plaintiff was disqualified from driving and that if the plaintiff drove and was apprehended, he would be liable to severe penalty, whereas she believed she would suffer a lesser penalty because of driving without a licence (T 218 line 41). 17. Approximately five minutes before the accident, the defendant stopped the vehicle just after a set of traffic lights and got out of the vehicle and leant against the bonnet of the vehicle (T 219 line 4). 18. The plaintiff and the defendant entered into a discussion, the effect of which was that the defendant communicated to the plaintiff that she did not want to drive any further and should not be driving as she needed to go to sleep. The plaintiff asked the defendant if she was okay to drive and she responded "No, I am fucked". The plaintiff asked whether the defendant was okay and she responded "I shouldn't be driving, I really shouldn't be driving, I need to go to sleep" (T 219 lines 6-10). 19. The plaintiff urged the defendant to resume driving the car, stating: "Five more minutes Peta, we are nearly there" (T 219 lines 8-9). 20. At the point in time when the plaintiff was leaning against the bonnet of the car, the defendant's ability to stand up straight, talk and communicate was objectively drug affected (T 219 lines 22-39). 21. The subject accident occurred approximately five minutes after the defendant resumed driving (see page 126 of Exhibit 8). 22. There is no evidence that the plaintiff was asleep at the time of the accident; rather the evidence establishes that she was awake as she told the police: "I remember sliding and seeing the house ahead of me. I've screamed but I couldn't control the car. I remember sliding between the two trees. I don't know if I fell asleep or blacked out." (ERISP record of interview, p 90 of Exhibit 7(2)). 23. Immediately following the accident and whilst still in the car, the defendant found a few small satchels of ice and cocaine in the plaintiff's shirt pocket and over the floor of the car (T 219 line 50). 24. The defendant emptied the plaintiff's shirt pocket of the satchels and gathered those that were on the floor of the car and put them into her wallet so that the plaintiff did not get into trouble (T 220 lines 1-4). At T 238, the defendant said "I put [the drugs] in my wallet because I didn't want him to get in trouble. Like I said he was like a father back then". 25. The police later searched the defendant but only found the cocaine (which resulted in the charge and guilty plea of the defendant as referred to hereunder) (T 220 line 13). Both the ice and the cocaine which was present in the vehicle at the time of the accident were the property of the plaintiff (T 220 line 19). 26. At some point on the journey from the Grandstand Hotel to the accident site, the plaintiff consumed further ice in the presence of the defendant while the vehicle was being driven by the defendant (page 18 of Exhibit 8). 27. The defendant held no driving licence at the time of the accident. 28. At the time of the accident, the plaintiff had been disqualified from driving on several occasions prior to the accident and had been declared a habitual offender. 29. Arising out of the accident, the defendant was charged with and pleaded guilty to the following offences: 1. Drive whilst under the influence of alcohol or other drugs in breach of s 12(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW); 2. Licence expired less than two years before (first offence) in breach of s 25(1)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW); 3. Possessed prohibited drug in breach of s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

[27]

Had the plaintiff consumed drugs shortly before the accident?

The evidence establishes: 1. The plaintiff has been convicted on repeated occasions of possessing prohibited drugs (Exhibit 1) and warrants had been issued for drug detection at the plaintiff's residence. 2. The plaintiff obtained drugs from the supplier (T 213-214). 3. On many prior occasions, the plaintiff had consumed drugs with the defendant. 4. Several days prior to the accident, the plaintiff bought the Ford vehicle partly in cash and partly in drugs. 5. The plaintiff and defendant arrived separately at the hotel. The plaintiff drove his Ford vehicle to the hotel (T 214 lines 41-46). 6. At the hotel, the plaintiff supplied drugs to the defendant. 7. The plaintiff and the defendant consumed drugs whilst at the hotel. 8. The defendant consumed substantial quantities of drugs including methylamphetamine (in the form of "ice") to a near fatal range. 9. The plaintiff indicated to the defendant of his desire to go on a fishing trip in the early hours of 8 September 2011. 10. The plaintiff and the defendant shared an understanding that she would drive the plaintiff because of his disqualification from driver and/or holding a driver's licence. 11. The plaintiff was aware that the defendant held no current driving licence and that she had consumed a substantial quantity of drugs at the hotel. 12. The plaintiff and the defendant departed the hotel between 5:30am and 6:00am on 8 September 2011 in the plaintiff's Ford, which was driven by the defendant. 13. The plaintiff consumed more drugs whilst travelling in the Ford after leaving the hotel and prior to the accident (T 199). 14. Approximately five minutes before the accident, the defendant stopped the Ford and told the plaintiff that she was unable to drive further and that she was "fucked". The plaintiff asked the defendant if she was okay; the defendant answered "No." 15. The plaintiff, being aware or knowing of the defendant's unfitness to drive, urged her to resume driving, stating: "Habubib [meaning darling girl], five minutes we'll be at the boat shed." The defendant then resumed driving. 16. After the collision, the defendant removed drugs from the plaintiff's shirt pocket and from the floor of the Ford (T 220) and placed them in her wallet, to avoid the plaintiff being found with drugs. At T 238, the defendant said "I put [the drugs] in my wallet because I didn't want him to get in trouble. Like I said he was like a father back then" 17. Constable Colefax observed the defendant to be "quite manic", having "glassy eyed", "incoherent", "muttering", "repetitively making comments" and "stumbling about" (T 200). 18. Constable Colefax observed that the plaintiff was foaming at the mouth (T 199), had glazed eyes that were "sort of half opened" (T 199), which was "typical of persons who had taken drugs" (T 199). 19. The defendant informed Constable Colefax that the plaintiff had consumed ice (T 198).

[28]

The relationship between the plaintiff and the defendant

I make the following findings in relation to the plaintiff and the defendant's relationship 1. The plaintiff's relationship with the defendant was akin to a father and daughter relationship at the time of the accident. 2. The plaintiff and the defendant had "on many occasions" (T 211 lines 29 to 32) consumed drugs together, a couple of times a week and sometimes she would be with his company for a couple of days taking drugs (T 211 line 40). 3. In the early morning of the day of the accident, the defendant and the plaintiff had shared drugs, namely ice and cocaine, which had been obtained by the plaintiff from the supplier (T 214). 4. The defendant had smoked "a fair bit of ice, cocaine which [the plaintiff] had been supplied by [the supplier]" (T 213). 5. The defendant had frequently driven the plaintiff. 6. The plaintiff and the defendant had discussed the fact that the plaintiff had been disqualified from driving, and that the defendant was unlicensed to drive a motor vehicle. The defendant said "he was disqualified, I was on an expired learner's permit, it was less - I would get in less trouble than he would have gotten in drive so I drove" (T 214). 7. When the defendant was asked whether the plaintiff had asked her to drive, she responded by saying: "A. It is just how it went. He had been disqualified for a while and it wasn't the first time. Any time I saw him, I drove, so he wouldn't get in trouble. Q. So what you are saying to his Honour is this is not the first occasion when you had driven him in a motor vehicle before this accident? A. No. Q. What were the occasions prior to this evening when you drove him in a motor vehicle? A. I drove him to rock Dale [sic - Rockdale] quite frequently for drugs." (T 215) 1. Due to the nature of the relationship between the plaintiff and the defendant, the defendant formed the perception that she would get into lesser trouble than the plaintiff if either of them were to be caught driving a motor vehicle. 2. The plaintiff insisted that the defendant drive the Ford from the hotel. 3. The plaintiff was aware that the defendant did not hold a driving licence. 4. The plaintiff instructed the defendant to continue to drive when the defendant stopped the vehicle between the hotel and the accident site, when she had informed him that she was "fucked" and could no longer drive. 5. The plaintiff knew or ought to have known that the defendant was drug affected when she commenced to drive the Ford because he had consumed drugs with her in the two hours preceding the departure from the hotel. These circumstances may be taken into consideration: see Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [37]-[38] ("Joslyn").

[29]

Findings in answer to plaintiff's submissions

The plaintiff has submitted that the defendant told the police officer that she was fit to drive. In her evidence, the defendant stated that her statement to the police was not correct. She stated "No, It's not correct, but that's what I said" (T 224 line 48). The plaintiff's submissions ignore the defendant's evidence that she was unfit to drive despite her incorrect statement to the police officer. The Court issued a certificate under s 128 of the Evidence Act 1995 (NSW) in respect of the defendant's evidence.
The plaintiff submits that the defendant informed the plaintiff that she had only consumed "uppers" whilst at the hotel. There is no evidence to support this submission. The only reference to "uppers" in the evidence of the defendant was her responses to a question in examination in chief of her understanding of the drugs she consumed at the approximate period when the accident occurred (T 212).
The plaintiff submitted that the evidence established that the defendant was capable of driving "and had stopped and rested and then insisted to continue to drive and that the driving off the road was related not to the criminal enterprise but to her lack of sleep over a period of one week of which the plaintiff was unaware" (submissions, paragraph 19).
The Court finds, in answer to the plaintiff's submissions, that: 1. there is no evidence that the defendant "insisted" on resuming driving after the stop; 2. there is no evidence that the accident resulted solely from tiredness as distinct from the effect of drug consumption; 3. there is no evidence of any conversation between the plaintiff and the defendant at the hotel concerning whether the defendant was unfit to drive due to tiredness.
There is no evidence to suggest that the plaintiff's reckless driving resulted from tiredness; rather, the evidence of Dr Perl establishes that the drug consumption by the defendant would have resulted in erratic behaviour. Dr Perl's second report states at paragraph 5 that: "Assuming the Driver used the drugs about 3 hours prior to the collision, the peak effects of the stimulant drugs methylamphetamine and cocaine would have occurred within the 1-2 hour prior to the collision and around the time of the collision and with the passage of time over the next 4 hours after the collision, I would expect these signs to significantly diminish and the Driver would progressively appear to get more drowsy, sedated (sleepy in appearance)."
Based upon this evidence, the Court finds that the defendant's drug affectation is the most likely cause of the accident. There was no cross-examination of the defendant to suggest that her driving resulting in the accident was attributable only to her tiredness.

[31]

Joint illegal enterprise

The principle of joint criminal liability was explained in Huynh v The Queen [2013] HCA 6 at [37] ("Huynh"); such liability arises from the making of the agreement (tacit or express) and the offender's participation in its execution. A person participates in such enterprise by the person being present when the crime is committed: Huynh at [38].
The defence of joint illegal enterprise raises significant factual issues. In view of the potential consequences of a finding that a joint illegal enterprise has been established, the degree of satisfaction to reach a positive finding of the existence of such enterprise is higher than the normal civil standard of proof. The defendant pleaded guilty to the charges in paragraph 134 above. However, the plaintiff was not charged with any criminal offence arising from the circumstances of the accident.
The Court notes that in Quine v Keeraswat [2014] WADC 150, the trial judge considered the question of the standard of proof to be applied with respect to allegations of joint illegal enterprise. In the course of the decision, Herron DCJ observed at [64] - [65]: "64 The standard of proof is the balance of probabilities, having regard to the principles described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336: Austin v The Electricity Networks Corporation [2014] WASCA 89 [28]. 65 Those principles, however, do not affect the standard of proof and must be understood as explained by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane & Gaudron JJ 170 - 171. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."
His Honour concluded at [70]: "70 In summary, the defendant must prove on the balance of probabilities the plaintiff committed an offence of unlawful use of a motor vehicle contrary to s 371A of the Criminal Code and that the plaintiff and the defendant were together engaged in a joint illegal enterprise. In deciding whether a crime has been committed I should feel an actual persuasion of its occurrence and such a conclusion should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact: Briginshaw v Briginshaw (361 - 363, 368) (Dixon J). I should not draw an inference adverse to the plaintiff unless I accept that the circumstances give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, the plaintiff committed a criminal offence."
I respectfully adopt the observations of his Honour and will apply the same standard of proof to the joint illegal enterprise defence raised by the defendant in these proceedings.

[33]

Aiding and abetting

The defendant additionally submits that the plaintiff aided and abetted the commission of illegal acts. In Giorgianni v The Queen (1985) 156 CLR 473, Gibb CJ explained the principle of aiding and abetting as follows: "… No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient."
Although his Honour's observations related to a criminal proceeding, the same principles apply to the current defence. The defendant submits that the plaintiff knew or must have known of the conduct leading to each offence.
The following facts are relevant in establishing the aiding and abetting by the plaintiff of the defendant in the use of the vehicle: 1. The conduct of the plaintiff in urging the defendant to drive his vehicle when he knew or ought to have known that the defendant was under the influence of drugs (s 12(1)(a) Road Transport (Safety and Traffic Management) Act 1999 (NSW)); 2. The conduct of the plaintiff in allowing the defendant to drive the vehicle when he knew that the defendant was unlicensed (s 25(1)(a) Road Transport (Driver Licensing) Act 1998 (NSW)).
These offences constitute the aiding and abetting of an offence, contrary to s 351B of the Crimes Act 1900 (NSW) and, as well as s 19 of the Drug Misuse and Trafficking Act 1985 (NSW), where the offence involves the use of drugs.
The defendant relies upon the particulars set out in bold below in support of its defence of a joint illegal enterprise, and the Court's findings are set out under each of the particulars: 1. Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW) - "Possession of prohibited drugs" - This section provides that a person with a prohibited drug in his or her possession is guilty of an offence. "Physical possession" means de facto possession or exclusive physical control of the thing: see R v Rawcliffe [1977] 1 NSWLR 219 at 231. Further, exclusive control does not mean that several persons may not in concert have an exercise of exclusive possession: see Moors v Burke (1919) 26 CLR 265 at 271: 1. The plaintiff and the defendant jointly possessed and used prohibited drugs whilst together (supplied by the plaintiff) prior to the parties entering the vehicle. 2. The parties transported the prohibited drugs which were in their joint possession. 1. Section 12 of the Drug Misuse and Trafficking Act 1985 (NSW) - "Self-administration of prohibited drugs": 1. The plaintiff and the defendant used prohibited drugs in their possession at the hotel. 2. The plaintiff administered prohibited drugs to himself whilst travelling in the Ford. 1. Section 19 of the Drug Misuse and Trafficking Act 1985 (NSW) - "Aiding, abetting etc commission of offence in New South Wales": 1. The plaintiff aided and abetted the defendant to possess prohibited drug and to self-administer them. 1. Section 25 of the Drug Misuse and Trafficking Act 1985 (NSW) - "Supply of prohibited drugs": 1. The plaintiff supplied prohibited drugs to the defendant; 1. Section 12(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) - "Use or attempted use of a vehicle under the influence of alcohol or any other drug": 1. Contrary to s 351B of the Crimes Act 1900 (NSW), the plaintiff aided and abetted the defendant to drive the plaintiff's vehicle whilst she was under the influence of drugs when departing the hotel; and/or 2. Contrary to s 351B of the Crimes Act 1900 (NSW), the plaintiff aided and abetted the defendant to drive the plaintiff's vehicle (whilst the defendant was under the influence of drugs) following the defendant stopping the vehicle when she stated she was unfit to drive. 1. Section 42 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) - "Negligent, furious or reckless driving": 1. The defendant submits that the plaintiff aided and abetted the conduct of the defendant when she drove the vehicle negligently on a road. However, there is insufficient evidence to establish that the plaintiff aided and abetted the defendant to drive the vehicle negligently. 1. Section 25(1)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW) - "Driver must be licensed": 1. The plaintiff aided and abetted the defendant to drive his vehicle whilst she was knowingly unlicensed. 1. The plaintiff breached the provisions of s 25(1)(b) by permitting the defendant to drive a motor vehicle when the defendant held no licence to drive.
The Court finds that each offence for which the defendant pleaded guilty was aided and abetted by the plaintiff.

[34]

Legal principles: Joint illegal enterprise

The New South Wales Court of Appeal in Godbolt v Fittock [1964] NSWR 22 considered proceedings brought by an injured plaintiff who was a passenger in a vehicle which was being used for the purpose of stealing and disposing of cattle. The vehicle crashed allegedly due to the defendant's negligence causing injuries to the plaintiff. The Court of Appeal, following an exhaustive consideration of the principles, including the observations of an American appellate court which stated: "Our doors are open to both the virtuous and the villainous. We do not, however, lend our aid to the furtherance of an unlawful project, nor do we decide, as between two scoundrels, who cheated whom the more (Manning v Noa (1956) 77 Am LR 2d 955, at p. 957 - Michigan Supreme Court)", dismissed the plaintiff's claim for damages on the basis that the plaintiff was involved in a joint criminal enterprise.
Sugerman J, with Brereton J agreeing, said at 28: "In my opinion, when co-adventurers in a joint criminal venture of a nature comparable with that in question in the present appeal use a motor vehicle in the pursuit of their common purpose, damages are not recoverable by one, being a passenger, against another, being the driver, in respect of injuries suffered as a result of want of due care in driving on a journey which is directly connected with the execution of the criminal purpose. I use "directly" in a relative rather than in any absolute, sense. The question is one of the sufficiency of the connection to require a conclusion that it would be contrary to public policy that damages should be awarded for the injury or that the injury had its origin in a turpis causa."
Significantly, his Honour held at 29 that: "The question is not one of causation as between the specifically criminal ingredient in the circumstances and the injury, but one of public policy, operating in this instance in a disabling sense… by way of avoiding the encouragement to crime which would follow if the law lent its aid to the resolution of disputes of the present kind between its practitioners, and bent its powers to ensuring that one should receive compensation from another for injuries sustained by negligent acts and omissions in the course of activities directly connected with the execution of a joint criminal purpose."
Notably, the act of driving was not criminal in its purpose; rather, it was the enterprise involving criminality which was sufficient to disqualify the plaintiff from recovering damages.
In Smith v Jenkins (1970) 119 CLR 397; [1970] HCA 2, the High Court held that where a passenger was injured due to the negligence of the driver whilst the vehicle was being used unlawfully, no damages could be awarded because no duty of care arose. Barwick CJ said at 400; [2]: "In my opinion, the appellant, in the particular circumstances of the case, should succeed in this submission. But a question which has considerably exercised my mind is upon what basis ought the dismissal of the respondent's action be placed. The choice it seems to me is between a refusal of the law to erect a duty of care as between persons jointly participating in the performance of an act contrary to the provisions of a statute making their act a crime punishable by imprisonment and a refusal of the courts, upon grounds of public policy, to lend their assistance to the recovery of damages for breach in those circumstances of a duty of care owed by the one to the other, because of the criminally illegal nature of the act out of which the harm arose. I have come to the conclusion that the former is the proper basis. The duty of care, which is the prerequisite to success in an action of negligence to recover damages for personal injuries, is a duty which the law imposes upon a party by reason of his relationship to another in the circumstances of the case. No doubt considerations of public policy have their place in the decision in the particular case to impose or erect such a duty. But basically it is the relationship of the parties which gives rise to the duty. Here the respondent and the appellant, in my opinion, did not relevantly stand in the relationship of passenger and driver. Their relationship was that of joint participants in the very act, itself unlawful in the sense I have mentioned, out of which the mischief to the respondent arose. In my opinion, the law will not hold that a duty of care arose out of that relationship."
In Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438 an accident occurred as a result of the defendant's alleged negligence. The defendant driver was unlicensed as he was driving whilst disqualified and this fact was known to the plaintiff. A majority the plaintiff was held to be entitled to recover damages for differing reasons. Barwick CJ said at [38] of his reasons, in reference to the principle of joint illegal enterprise: "I have already indicated that the explanation of the principle was that the Court did not in point of public policy deny the plaintiff redress for breach of an acknowledged duty of care. The principle was to deny the existence of any relevant duty of care. That denial was itself an expression of public policy. That policy is that there shall be no civil rights between those committing an offence in respect of acts connected with that commission."
Mason J (as he then was) at [12] of his reasons said: "It is for these reasons that I consider the law to have been correctly stated by Jacobs J. in Progress & Properties Ltd. v. Craft. (1976) 135 CLR, at p 669. A plaintiff will fail when the joint illegal enterprise in which he and the defendant are engaged in such that the court cannot determine the particular standard of care to be observed. It matters not whether this in itself provides a complete answer to the plaintiff's claim or whether it leads in theory to the conclusion that the defendant owes no duty of care to the plaintiff because no standard of care can be determined in the particular case."
In Gala v Preston [1991] HCA 18; (1991) 172 CLR 243, a car was stolen and used for the purpose of committing a criminal offence of breaking and entering. Both the plaintiff and the defendant were involved, at different times, driving the vehicle before it collided and the plaintiff was injured. Both the plaintiff and defendant had pleaded guilty to and were convicted of unlawfully using a motor vehicle contrary to section 408A of the Criminal Code (Qld). On appeal to the High Court, it was held unanimously that a passenger who was criminally complicit in the illegal use of a vehicle could not recover damages for personal injury suffered in consequence of the driver's careless driving. At 254 the majority (Mason CJ, Deane, Gaudron and McHugh JJ) said at [25]-[27]: "25. So, in the present case, it is a matter of examining the relationship between the respondent and the first appellant with a view to ascertaining whether there was a relationship of proximity such as to give rise to a relevant duty of care on the part of the first appellant as driver of a motor vehicle to the respondent as his passenger… 26. When attention is given to the circumstances of the present case it is difficult to see how they can sustain a relationship of proximity which would generate a duty of care. The joint criminal activity involving the theft of the motor vehicle and its illegal use in the course of a spontaneously planned "joyride" or adventure gave rise to the only relevant relationship between the parties and constituted the whole context of the accident. That criminal activity was, of its nature, fraught with serious risks. The consumption by the participants, including the first appellant, of massive amounts of alcohol many hours prior to the accident would have "affected adversely the capacity of a driver to handle a motor vehicle competently"… 27. In this situation the parties are not in relationship of proximity to each other such that the first appellant, as the driver of the vehicle, had a relevant duty of care to the respondent, as a passenger in the vehicle. What was an appropriate standard of care to be expected of the first appellant as the driver of the vehicle? To conclude that he should have observed the ordinary standard of care to be expected of a competent driver would be to disregard the actual relationship between the parties as we have the described it."
In Joslyn, the High Court considered the instance in which a passenger was injured in a car accident. Both the driver and the passenger were severely intoxicated with alcohol. The Court held that the passenger ought to have been aware that the ability of the driver was impaired by alcohol consumption. Further, the relevant facts and circumstances were not confined to events immediately before the accident, but included the extended period of interaction between the plaintiff and the defendant. Both the appellant and the respondent had attended a party at a country town on a Saturday evening and consumed substantial quantities of alcohol on the evening before the accident. At 4:30am on the next day, the driver was seen to be very affected by alcohol. The driver and the passenger then used the vehicle after about three hours of sleep then used the vehicle to commute to obtain breakfast about 8:30am. On this journey, the car crashed. The trial judge found that the passenger had allowed the driver to drive the vehicle knowing of her alcohol consumption and that he is capable of taking her condition into account. The New South Wales Court of Appeal held that the facts were confined to the time when the defendant driver took over the driving of the vehicle. On appeal, the High Court found that the Court of Appeal had erred in so confining the temporal scope of the fact finding process. McHugh J said at [16], inter alia: "16 … But in principle, any fact or circumstance which a reasonable person would know or ought to know and which tends to suggest a foreseeable risk of injury in accepting a lift from an intoxicated driver, is relevant in determining whether the passenger was guilty of contributory negligence in accepting the lift."
Joslyn is relevant to the present circumstances in that it authorises this court to take into consideration the events that led up to the accident. This includes the fact that both the plaintiff and the defendant consumed drugs together at the hotel in the early hours of the morning prior to their departure in the plaintiff's Ford, which was driven by the defendant.
Joslyn is also relevant because analogous considerations arise concerning the existence or otherwise of a duty of care being owed by the drug affected defendant. At [29] - [30], McHugh J said: "29 What then of the issue of no breach of duty in cases where the passenger knows that the driver's ability is impaired by alcohol and suffers injury as the result of that impairment? Has it survived the judicial and legislative demise of the doctrine of volenti? While the reasoning of this Court in Cook v Cook and Gala v Preston stands, the answer must be: "Yes". The plea of no breach of duty - perhaps even a plea of no duty in an extreme case - is still open in the case of a passenger who accepts a lift with a driver known to the passenger to be seriously intoxicated. In Cook and Gala, this Court applied the now rejected doctrine of proximity to hold that in exceptional cases the content of the duty of care owed by a driver to a passenger varies in proportion to the passenger's knowledge of the driver's capacity to drive. In Cook, the Court held that, where the passenger has invited an inexperienced and unlicensed driver to drive, the standard of care "is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which [the driver] is placed." In so holding, the majority judgment relied on the no breach of duty statements contained in the judgments of Latham CJ and Dixon J in Joyce and the judgment of Webb J in Roggenkamp. In Gala, Mason CJ, Deane and Gaudron JJ and I held that no relevant duty of care was owed by a driver to a passenger in respect of the driving of a stolen car in circumstances where both parties had consumed large quantities of alcohol. We said: "[E]ach of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest. In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care." 30 Now that this Court has rejected the doctrine of proximity, it may be that it would no longer follow the reasoning in Cook and Gala. Moreover, the notion of a standard of care that fluctuates with the sobriety of the driver is one that tribunals of fact must have great difficulty in applying. While Cook and Gala stand, however, they are authorities for the proposition that, in special and exceptional circumstances, it would be unreasonable to fix the standard of care owed by the driver by reference to the ordinary standard of care owed by a driver to a passenger. In some cases, knowledge by a passenger that the driver's ability to drive is impaired by alcohol may transform the relationship between them into such a category." (Footnotes omitted)
In Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 ("Miller"), the plaintiff stole a motor vehicle then moved into another seat of the car and allowed the defendant to drive it. The plaintiff was aware that the defendant had been drinking and that he was probably unlicensed. The defendant began to drive the car dangerously and the plaintiff made a request that the driver slowdown and then she asked to be let out. The car continued and crashed causing the plaintiff injuries.
The High Court unanimously held that up to the time the plaintiff made the two requests to be let out of the car, the defendant owed the plaintiff no duty of care, because she was complicit in the illegal use of the vehicle. At [64] the majority decision of the Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said: "A duty of care arises from the "relations, juxtapositions, situations or conduct or activities in question. All aspects of the relations between the parties must be considered."
At [70]-[74] the majority decision of the Court considered "common threads in decided cases". At [73] the Court said: "73 Why should courts not regulate the activities of the wrongdoers by requiring of the driver that he or she exercise reasonable care for the safety of other road users and any passenger in the vehicle, whether or not the passenger is complicit in the crime? As explained at the outset of these reasons, the answer must lie in whether it is incongruous for the law to provide that the driver should not be using the vehicle at all and yet say that, if the driver and another jointly undertake the crime of using a vehicle illegally, the driver owes the confederate a duty to use it carefully when neither should be using it at all".
At [94]-[96] the Court said: "94 The incongruity identified stems immediately from the injured passenger's complicity, not only in the illegal use of the vehicle, but also in the driver's commission of the offence of driving dangerously. To conclude that the driver owed the passenger a duty to take reasonable care when driving would not be consistent with the purpose of the statute proscribing dangerous driving. 95 Does the conclusion of incongruity apply in every case of joint illegal use? Does the conclusion depend upon whether, in the particular case, the driver drove recklessly or dangerously and the passenger was complicit in that further offence? 96 In many cases in which an illegal user of a vehicle seeks to recover damages from a driver complicit in that crime, the passenger and the driver will also be complicit in a further offence proscribing driving in the manner which was a cause of the passenger's injury. But some cases may not be of that kind. An example may be where the driver of a stolen car, affected by alcohol, makes an error of judgment which causes an accident. In such a case, the fact that the vehicle was being used illegally would seem not to be immediately relevant to the liability of driver to passenger. Would it be inconsistent with the statutory purposes of the proscription of illegal use of a vehicle to hold that the driver owed the passenger a duty to drive with reasonable care? Should not the significance attached to the driver being affected by alcohol fall for consideration only as a question about contributory negligence?"
As to the question of whether the possibility of dangerous driving must first be considered, the Court said at [100]: "100 Whether one participant should be held to owe the other a duty to take reasonable care in the performance of the common purpose of using the car illegally cannot depend upon whether the possibility of reckless or dangerous driving eventuates. It would be absurd to hold that one owed the other a duty to take reasonable care unless and until he or she departed markedly from observing that standard of care".
I am satisfied that the plaintiff and the defendant engaged in joint illegal enterprises. The enterprise was threefold. The plaintiff knew or ought to have known that: 1. the plaintiff's Ford was to be used by the unlicensed defendant; 2. the plaintiff's Ford was being used to transport drugs; and 3. the driver was under the influence of drugs.
Further, given the findings of fact set out earlier in this judgment, the Court finds that it will be incongruous to recognise the existence of any duty of care owed by the defendant to the plaintiff. In contrast to the findings in The Nominal Defendant v Cooper [2017] NSWCA 280 ("Cooper"), I find that the circumstances resulting in the plaintiff's injuries (if any) arose out of special or exceptional circumstances (see McHugh J in Joslyn at [29]-[30]) such that no duty of care arose on the part of the defendant to the plaintiff. In Cooper, no joint illegal enterprise was advanced. The facts now before this Court readily constitute such conduct and remove it from the circumstances in Cooper.

[35]

Alternative defence - Negation of duty arising from tainted conduct

In the event that I have erred in upholding the joint illegal enterprise defence, I now consider the defendant's first alternative defence.
The defendant raises the submission that the conduct of the plaintiff was so tainted with illegality that no duty of care arose by the defendant because in the circumstances the defendant could not expect the plaintiff to drive sensibly. The defendant relies upon Miller v Miller at [64], which held: "64 Joyce concerned a gratuitous passenger accepting carriage in a vehicle driven by a person known by the passenger to be drunk. In Joyce, Dixon J offered three possible bases for concluding that the passenger's action should fail: no breach of duty, voluntary assumption of risk and contributory negligence (then a complete defence). Of them, Dixon J preferred the first form of analysis. As the plurality in Imbree said, the conclusion that a defendant owed the plaintiff no duty of care is open in a case like Joyce if the drunken driver cannot be expected to act sensibly (an idea that would also underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver). And as Windeyer J said in Smith v Jenkins, a conclusion that one illegal user owes no duty of care to a confederate "can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit injuria, or simply on the refusal of the courts to aid wrongdoers". But as is implicit in what was said in all three cases (Joyce, Smith v Jenkins and Imbree) the question whether A owes B a duty to take reasonable care is not to be answered by reference only to whether A was the driver of and B a passenger in a motor vehicle. A duty of care arises from the "relations, juxtapositions, situations or conduct or activities" in question. All aspects of the relations between the parties must be considered." [Footnotes omitted]
The evidence supports a finding that the plaintiff was well aware that the defendant was incapable of driving for three reasons: 1. The plaintiff knew that the defendant held only an expired learners permit; 2. The plaintiff knew that the defendant had consumed drugs over a period of two hours immediately before departing the hotel; 3. He expressly asked her whether she was fit to drive after the defendant stopped the car during the journey. She replied that she was not fit to drive.
In Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39 ("Joyce"), Latham CJ held: "13. If a person deliberately agrees to allow a blacksmith to mend his watch, it may well be said that he agrees to accept a low standard of skill. But even in such a case, the blacksmith is bound to act sensibly, though he is not subject to the responsibilities of a skilled watchmaker. In the case of the drunken driver, all standards of care are ignored. The drunken driver cannot even be expected to act sensibly. The other person simply "chances it." Accordingly, the case may be described as involving a dispensation from all standards of care, so that, as the learned trial judge decided, on the facts as found by him, there was no breach of duty by the defendant Kettle. But the facts of the case supposed will, if the passenger is in possession of his faculties, and the drunken state of the driver is obvious, also establish contributory negligence. There would be a lack of ordinary care for the plaintiff's own safety which brought about his injury. The same facts would also show that the plaintiff voluntarily encountered the risk which was obviously associated with the drunken condition of the driver. The maxim volenti non fit injuria would apply."
The New South Wales Court of Appeal in Cusack v Stayt [2000] NSWCA 244 ("Cusack") upheld a decision in which the trial judge found that the plaintiff, who had been injured by the conduct of the defendant in the driving of a motor vehicle, could not have had any reasonable basis for expecting that the defendant would drive in accordance with the ordinary standards of care.
The trial judge held that no duty of care was owed by the defendant to the plaintiff because the driver was affected by alcohol and marijuana. The Court considered the observations of the High Court of Australia in Cook v Cook [1986] HCA 73; (1986) 162 CLR 376, in which the High Court, considering an appeal where the injured passenger knew that the driver was unlicensed, said at [8]-[9]: "8. For our part, we accept that a relevant duty of care will arise under the common law of negligence only in a case where the requirement of a relationship of proximity between the plaintiff and the defendant is satisfied (see, generally, Jaensch v. Coffey [1984] HCA 52; (1984) 58 ALJR 426, at pp 428-429, 441-442; [1984] HCA 52; 54 ALR 417, at pp 419-421, 443-445; Sutherland Shire Council v. Heyman [1985] HCA 41; (1985) 59 ALJR 564, at pp 570, 579, 583, 594-595; [1985] HCA 41; 60 ALR 1, at pp 13-14, 29, 36, 53-56; Stevens v. Brodribb [1986] HCA 1; (1986) 60 ALJR 194, at pp 199, 208-209; [1986] HCA 1; 63 ALR 513, at pp 521-522, 536-538). As an overriding control of the test of reasonable foreseeability, that requirement of proximity of relationship can be traced to the judgments of Lord Esher M.R. and A.L. Smith L.J. in Le Lievre v. Gould (1893) 1 QB 491 (see Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562, at p 581). It constitutes the general determinant of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury to another. 9. A concomitant of the concern of the law of negligence to identify the categories, rather than the wilderness of single instances, of cases in which a duty of care will arise is that the measure for determining what constitutes reasonable care is an objective and impersonal one. It is "the standard of the reasonable man" (per Fullagar J., Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; (1961) 105 CLR 42, at p 56). That is to say, what is required is "the conduct that would be expected of a reasonably careful man in such circumstances" (per Windeyer J., Voli v. Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74, at p 89). The more detailed definition of the objective standard of care for the purposes of a particular category of case must necessarily depend upon the identification of the relationship of proximity which is the touchstone and control of the relevant category."
Their Honours thereafter referred to the observations of Latham CJ in Joyce.
In Cusack, Heydon JA observed at [20]: "20 The defendant was intoxicated and had used marijuana, as the plaintiff well knew (Black T1, 23B-C and 27E-H). The plaintiff thus knew before the defendant reached her vehicle that she was not fit to drive it, and that if she did there was a risk to her safety and the safety of others (Black T1, 25M-P)."
At [25] - [26], Heydon JA said: "25 None of the general principles commonly used in identifying the existence of a duty of care in relatively normal circumstances apply here. There was no special relationship between the parties or between the defendant and anyone else giving rise to any assumption of responsibility by the defendant for the plaintiff's safety. Their quarrelling had gone well beyond any stage when there was any consensual understanding between them about anything. There was no peculiar vulnerability in the plaintiff, rather it was the defendant who was vulnerable to the plaintiff's campaign of threats and violence. There was no actual reliance, and there could have been no reasonable reliance, by the plaintiff on the defendant to avoid injuring him. Indeed, he invited her to do so. While a sober driver in the defendant's position who had not been upset by the plaintiff might be said to be in a position of control, the defendant in her intoxicated and terrified condition was to the plaintiff's knowledge not in a position of control. 26 So far as the existence or extent of duties of care are to be controlled by policy considerations, there are none which favour the recognition of liability and some which point against it. To use the words of Toohey J in Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 at 291, the law: "... gives effect to the view seen as reflecting prevailing community standards of the person who is injured by participating in conduct which has been identified by the criminal law as inimical to society should not be entitled to a compensation the civil law ordinarily provides." It does not seem just that that section of the community which owns cars and pays premiums for compulsory third party insurance should have to bear the consequences of the plaintiff's conduct."
The above principles have been referred to: see for example Cockburn v Jacobsen [2017] ACTSC 380 at [145] and Reardon v Seselja [2021] ACTCA 4 at [17] (although Cusack was not referred to).
Whilst the Court notes that the principle considered, namely that the circumstances may negate the existence of a duty of care owed by a wrongdoer to another party (an "extreme case": see McHugh J in Joslyn at [29]-[30]), has not been developed, there is no reason why the principle should not be given effect to where the circumstances require its application. In Cook v Cook, Mason, Wilson, Deane and Dawson JJ observed at [10] - [11]: "10. 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 standardized 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. It would, to take an extreme example, affront the standards of the reasonable man of the law of negligence to define the duty of care which a mentally retarded and completely unqualified and inexperienced person owed to a professional pilot who had persuaded him or her to attempt to pilot an aircraft in which they were both travelling as being the skill and care that are reasonably to be expected of a qualified and experienced pilot. The point can also be illustrated by reference to a more mundane example which is closer to the circumstances of the present case, namely, that of a professional driving instructor and a pupil having his or her first driving lesson. It would be contrary to common sense and the concept of what is reasonable in the circumstances (considerations which are basic to the common law of negligence) to measure the content of the duty of each of such an instructor and such a pupil by the standard to be expected of the ordinary experienced, skilled and careful driver, with the result that the degree of skill required of each of them toward the other was the same. 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. The point may be illustrated by reference to the abovementioned example of a professional driving instructor and a pupil having his first lesson. In relation to other users of the highway, the duty of care of both instructor and pupil will ordinarily fall to be measured by the same objective standard since the relevant relationship will be the ordinary one between a driver and another user of the highway. As between themselves, however, it would be to state a half-truth to say that the relationship was, if the pupil was driving, that of driver and passenger. The special circumstances of such a case remove the relationship into a distinct category or class which, while possessing the requisite degree of proximity, could not rationally be seen as giving rise to a duty to drive with the skill reasonably to be expected of a competent and experienced driver. Indeed, it is the very absence of that skill which lies at the heart of the special relationship between the driving instructor and his pupil. In such a case, the standard of care which arises from the relationship of pupil and instructor is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which the pupil is placed. The standard of care remains an objective one. It is, however, adjusted to fit the special relationship under which it arises. 11. What has been written above accords with, and seems to us to flow from, general principle. It also accords with the clear trend of authority in this country to the effect that special and exceptional circumstances can transform the ordinary relationship of driver and passenger into a special one with the result that the hypothetical reasonable person of the law of negligence can no longer be credited with the degree of skill and experience that would otherwise be attributed to him or her. Thus, in Joyce's Case, Dixon J., having pointed out (at p.56) that a passenger comes into "a more particular relation with the driver of (a) car" which may vary, expressed (at p.59) his preference for the view that the position of the voluntary passenger depends (at p.57): "upon a relation which by accepting a place in the conveyance he sets up between himself and the person responsible for its management. For those who believe that negligence is not a general tort but depends on a duty arising from relations, juxtapositions, situations or conduct or activities, the duty of care thus arises. For those who take the contrary view, the standard of care is thus determined. But whatever be the theory, the principle applied to the case of the drunken driver's passenger is that the care he may expect corresponds with the relation he establishes. If he knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty." A similar view was expressed by Latham C.J. in Joyce's Case (at pp.45-46). This approach of Dixon J. and Latham C.J. was subsequently accepted by Webb J. in Roggenkamp v. Bennett [1950] HCA 23; (1950) 80 CLR 292, at p 303 and has been applied in subsequent cases in State Supreme Courts (see, e.g., Chang v. Chang (1973) 1 NSWLR 708, at p 713; and the extract from the judgment of Bray C.J. in the unreported case of Netherwood v. Sebastyan quoted by Sangster J. in Ranieri v. Ranieri (1973) 7 SASR 418, at p 429)."
Whilst the doctrine of proximity referred to in Cook has been disavowed (see Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59; see also McHugh J in Joslyn at [30]), the reasoning relating to a duty of care remain and are now regulated by the Civil Liability Act 2002 (NSW).
Applying the above principles, the Court considers that the conduct of the parties, which has already been referred to, was such as to negate the existence of a duty of care. It is arguable that either no duty of care ever existed because of the lack of the necessary relationship; or, if a relationship ever existed, it was negated by the circumstances.
I consider that the conduct of the plaintiff in supplying drugs to the defendant and consuming them with her, and then requiring her to drive the Ford, either upon leaving the hotel or after the defendant told Raad that she was unfit to do so mid-journey, transforms the usual relationship between a driver and a passenger of a motor vehicle to one in which no duty on the part of the defendant arose. The circumstances constitute an "extreme case" (see McHugh J in Joslyn at [29]-[30], quoted at [170] above). The conduct of the plaintiff is compounded by the fact that the plaintiff was aware that the defendant held no driving licence. The observations of Mahoney JA in Fabre v Arenales are pertinent where his Honour found at 318-319: "In my opinion Mr Arenales was driving the car as he did in order to escape from the police. To do this, he was driving fast and he drove in a manner which, he hoped, would enable him to escape from them, eg, by taking turns or corners which they could not take. I infer that the plaintiff was a party to what he was doing. Accepting Mr Stephens' evidence, she had been involved in a criminal offence on the premises in George St and invited Mr Arenales' assistance to escape from Mr Stephens. She was also a party to the attempt to escape from the police. When she entered the car she referred to the police. It is not necessary to seek to determine whether she consented in terms to the precise manoeuvres undertaken by Mr Arenales. It is, in my opinion, sufficient that she was a party to the attempt to escape from the police as he did. In those circumstances, she could not expect from him any more care than in fact he took. The ordinary relationship of a driver towards a passenger: ibid at 254; was transformed into one which lacked the relevant duty to take ordinary care in driving. What happened, namely, the car striking the pillar box and the wall, was the kind of thing apt to happen in such a venture. In my opinion, therefore, the judge's judgment for the defendants was correct."
Accordingly, the Court upholds the defence that the defendant owed no duty of care to the plaintiff because the plaintiff's awareness of her unfitness and inability to drive. It would be incongruous to recognise the existence of any duty of care owed by the defendant to the plaintiff since the circumstances surrounding the accident, including the consumption of drugs at the hotel, which forms part of the res gestae, were tainted with illegality and that, in those circumstances, the defendant could not be expected to act sensibly.
Alternatively, if a duty of care was ever owed by the defendant to the plaintiff, such duty was negated by the circumstances leading to the accident, namely the plaintiff's actual or imputed knowledge that the defendant was likely to have been drug affected from their joint consumption of drugs at the hotel; and the fact that the defendant held no driving licence as the plaintiff well knew.

[36]

Alternative defence - operation of s 5D(1)(b) of the Civil Liability Act 2002 (NSW)

In the event that I have erred in upholding the above defences, I now consider the defendant's second alternative defence.
The defendant submits that even if the relationship of the parties was not so tainted with illegality such as to exclude a duty of care, the defendant's liability as a driver should not extend to the entirely predictable consequences of the consumption of drugs by the defendant in the presence of the plaintiff before the plaintiff became a passenger in the vehicle (paragraph 56 of the defendant's submissions dated 21 August 2018). The defendant submits that as a matter of policy, the scope of the defendant's liability should not extend to the harm suffered by the plaintiff because the plaintiff knew or at the very least ought to have known that the defendant's ability to drive as an unlicensed driver and also drug impaired was likely to result in the defendant losing control of the vehicle. Such risk became clearly evident when the defendant stopped the vehicle but the plaintiff urged her to continue driving.
Accordingly, the defendant submits that consistently with Wallace v Kam (2013) 250 CLR 375, the Court should apply the policy reflected in s 5D(4) of the CLA to determine the scope of liability. Section 5D(4) provides: "(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
Section 5D(1) defines factual causation and scope of liability as following: "(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability")."
The plaintiff bears the onus of establishing both the requirements of s 5D(1)(a) and of s 5D(1)(b).
The defendant concedes that, for the purpose of this defence, s 5D(1)(a) is satisfied. However, the defendant submits that the Court should find that it is not appropriate that the scope of the defendant's liability extends to the harm allegedly caused to the plaintiff under s 5D(1)(b).
In determining the scope of liability in s 5D(1)(b), the Court must have regard to s 5D(4), which states: "(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
In Strong v Woolworths Ltd [2012] HCA 5, the High Court of Australia explained the difference between factual causation and the scope of liability as follows (at [18]-[19]): "18 The determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff's harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm. 19 The division of the causal determination under the statute into the distinct elements of factual causation and scope of liability is in line with the recommendations in the Final Report of the Committee convened to review the law of negligence ("the Ipp Report"). The authors of the Ipp Report acknowledged their debt to Professor Stapleton's analysis in this respect. The policy considerations that inform the judgment of whether legal responsibility should attach to the defendant's conduct are the subject of the discrete "scope of liability" inquiry. In a case such as the present, the scope of liability determination presents little difficulty. If the appellant can prove factual causation, it is not in contention that it is appropriate that the scope of Woolworths' liability extend to the harm that she suffered. In particular cases, the requirement to address scope of liability as a separate element may be thought to promote clearer articulation of the policy considerations that bear on the determination. Whether the statutory determination may produce a different conclusion to the conclusion yielded by the common law is not a question which is raised by the facts of this appeal."
Since the element of s 5D(1)(a) has been conceded by the defendant, there must now be the inquiry whether it is appropriate for the scope of liability be extended to the harm allegedly caused.
In contrast to the circumstances in Strong, the finding of factual causation (s 5D(1)(a)) by the defendant does not readily lead to the conclusion that it is appropriate for the scope of the defendant's liability to extend to the harm allegedly caused to the plaintiff (s 5D(1)(b)), for the reasons which follow. In the present case, there is a requirement for the Court to "address scope of liability as a separate element" which "may be thought to promote clearer articulation of the policy considerations that bear on the determination" (Strong at [19]). This is a normative consideration. At [14] of the decision of the High Court in Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19, the Court considered the scope of s 5D(1) and said, inter alia: "14 … A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party."
At [23] the Court said: "23 In a novel case, however, s 5D(4) makes it incumbent on a court answering the normative question posed by s 5D(1)(b) explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to "the purposes and policy of the relevant part of the law". Language of "directness", "reality", "effectiveness" or "proximity" will rarely be adequate to that task. Resort to "common sense" will ordinarily be of limited utility unless the perceptions or experience informing the sense that is common can be unpacked and explained." (Footnote omitted)
The Court stated the interrelationship between the common law and the legislation as follows at [26]: "26 Within that limiting principle of the common law, the scope of liability for the consequences of negligence is often coextensive with the content of the duty of the negligent party that has been breached. That is because the policy of the law in imposing the duty on the negligent party will ordinarily be furthered by holding the negligent party liable for all harm that occurs in fact if that harm would not have occurred but for breach of that duty and if the harm was of a kind the risk of which it was the duty of the negligent party to use reasonable care and skill to avoid. However, the scope of liability in negligence is not always so coextensive: "[t]he scope of liability for negligence finds its genesis but not its exhaustive definition in the formulation of the duty of care". That is in part because the elements of duty and causation of damage in the wrong of negligence serve different functions (the former imposing a forward-looking rule of conduct; the latter imposing a backward-looking attribution of responsibility for breach of the rule) with the result that the policy considerations informing each may be different. It is in part because the policy considerations that inform the imposition of a particular duty, or a particular aspect of a duty, may operate to deny liability for particular harm that is caused by a particular breach of that duty." (Footnotes omitted)
I set out the plaintiff's submissions on s 5D in its entirety: "There is no real dispute on the defendant's behalf that if there was a duty of care the defendant's negligence involved breach of that duty of care and resulted factually in the plaintiff being injured. There is no reasonable basis for the defendant to succeed under either limb of the causation provisions in section 5D of the Civil Liability Act 2002 (NSW)." (Plaintiff's submissions, 3 December 2021 at paragraph 23)
This submission overlooks the fact that the onus of proof rests on the plaintiff to establish that it is appropriate to extend the scope of liability to the harm suffered by the plaintiff. In Wallace v Kam at [23], the High Court referred to a Court's task as being "the identification and articulation of an evaluative judgment by reference to "the purposes and policy of the relevant part of the law"".
The defendant submits the following in relation to s 5D(1)(b) (having conceded s 5D(1)(a)): "54. In the present case the Defendant firstly invokes the same factors as earlier set out in respect of the illegal activity in which the parties were engaged, to support the conclusion that the scope of the Defendant's liability should not extend to the damages claimed by the Plaintiff in this case. 55. The purpose and policy of the legislation is to prevent those drivers who are clearly affected by the drugs they have consumed from driving the vehicle. In doing so they pose a heightened risk of being involved in an accident arising from their inability to control their vehicle, combined with the risk-taking behaviour that accompanies the consumption of such drugs. 56. The Defendant submits that even if the relationship between the parties was not so tainted with illegality to exclude a duty of care, the scope of the Defendant's liability as the driver should not extend to the entirely predictable consequences of the extensive quantity of illegal drugs consumed by the Defendant in the presence of the Plaintiff before he accompanied her as a passenger in the vehicle. 57. As a matter of policy, the scope of the Defendant's liability to the Plaintiff should not extend to the harm he suffered. 58. He knew or at the very least ought to have known that her ability to manage the vehicle as an unlicensed driver was severely impaired and likely to result in her losing control of the vehicle. 59. Even if he could not come to any reliable conclusion about the matter before she stopped the vehicle, it must have been obvious to him, once she alighted from the vehicle shortly before the accident, yet it was the Plaintiff who insisted on the Defendant continuing to drive."
Leaving aside any wrongdoing on the part of the plaintiff, the Court is satisfied that, having accepted that the defendant was negligent in the driving of the vehicle, it would be contrary to policy to find that the scope of the defendant's liability extended to the plaintiff's alleged harm for the reason that the plaintiff's vehicle was driven by the defendant when he knew or ought to have known that the defendant was drug affected, was unlicensed and was urged to drive by the plaintiff when the defendant indicated that she was unfit to drive. Given these factors, it is not appropriate and contrary to public policy to extend the scope of liability when the plaintiff voluntarily became a passenger in full knowledge of the defendant's condition.
The Court's conclusion is reinforced by the fact that shortly before the accident occurred, the plaintiff had been engaged in illegal conduct in drug supply to the defendant, consumption of drugs with the defendant and the plaintiff's own drug consumption within the vehicle prior to the accident. It was the plaintiff's illegal conduct which initiated the train of events which led to the accident. In these circumstances, it will be contrary to policy for the Court to enable the plaintiff to be recompensed for any alleged injury.
Accordingly, this defence is upheld because s 5D(1)(b) has not been proved by the plaintiff on the balance of probabilities.

[37]

Alternative defence - Contributory negligence

The defendant relies on the particular of contributory negligence as set out above that the defendant was unlicensed and had consumed drugs shortly before the defendant commenced to drive the plaintiff's vehicle.
In the Third Further Amended Defence, the defendant has pleaded the provisions of ss 5R, 5S and 49 of the Civil Liability Act 2002 (NSW). I set these provisions out in full as follows: "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. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. 49 Effect of intoxication on duty and standard of care (1) The following principles apply in connection with the effect that a person's intoxication has on the duty and standard of care that the person is owed - (a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person's capacity to exercise reasonable care and skill is impaired as a result of being intoxicated, (b) a person is not owed a duty of care merely because the person is intoxicated, (c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person. (2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision."
The defendant also pleaded s 138 of the Motor Accidents Compensation Act 1999 (NSW), which 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."
In the event that the Court should be found to have erred in its application of the principles in relation to the above defences, the Court provides its findings concerning contributory negligence alleged by the defendant.
The assessment of contributory negligence is governed by Part 1A, Div 8 of the CLA (see ss 3B(1)(e), 3B(1)(e1) and (2)(a)) in which, relevantly, ss 5R and 5S are found.
Section 5R of the CLA requires the Court, when considering whether the plaintiff has contributed to his injuries, to apply the same principles in determining whether the defendant was negligent resulting in harm to the plaintiff. The standard to be applied to the conduct of the plaintiff is that of a reasonable person in the position of that person (s 5R(2)(a)) and the matter must be determined on the basis of what the plaintiff knew or ought to have known at the time (s 5R(2)(b)).
The Court finds that, applying the provisions of s 5R(2) of the CLA, the plaintiff's conduct falls within s 138(2)(b) Motor Accidents Compensation Act 1999 (NSW) because: 1. The plaintiff was a voluntary passenger in the vehicle and initiated the journey by allowing the defendant to drive his vehicle, with whom he shared drugs with earlier over a period of two hours. 2. The plaintiff permitted the defendant to drive his vehicle knowing she was unlicensed and that she had consumed drugs immediately prior to driving; 3. The plaintiff was aware, or ought to have been aware, of the defendant's impairment to drive the vehicle at the beginning of the journey in consequence of the defendant's consumption of drugs with the plaintiff. 4. After the defendant stopped the vehicle indicating to the plaintiff that she could no longer drive, the plaintiff urged her to resume driving knowing she was not in a fit state to do so. At this point in time, not only should the plaintiff had been aware or ought to have been aware, he knew of her impairment to resume driving. 5. There is no basis to suggest that the plaintiff could not reasonably be expected to have declined to become a passenger in the motor vehicle when the defendant resumed driving. In this regard, I make the following alternative findings: 1. If I accept the plaintiff's submission that the plaintiff was never in the hotel and did not consume drugs on the night of the accident, the plaintiff would have had the opportunity to observe the defendant's fitness to drive prior to the commencement of the journey. Further, if I accept Mr Jobson's submission that the plaintiff had no reason to doubt the defendant's fitness to drive the motor vehicle prior to the commencement of the journey, the plaintiff was made acutely aware of the defendant's unfitness to drive after the defendant stopped the vehicle. The plaintiff could have declined to become a passenger at that point in time, but instead urged the defendant to resume driving. 2. As I have found in my fact findings above, the plaintiff supplied drugs to the defendant and, further plied her with drugs and consumed drugs with her over a two hour period in the hotel room. The ability of the defendant to drive the car safely, irrespective of her tiredness, must have been impaired. The plaintiff must have known, or at least ought to have been aware, of the risks of travelling in a vehicle being driven by the defendant. The plaintiff went on to permit the defendant to drive his vehicle and continued to consume drugs whilst travelling in the vehicle. Despite the defendant having clearly conveyed to the plaintiff that she could no longer drive and that she was "fucked", the plaintiff urged her to continue driving. There is nothing in this scenario which could suggest that the plaintiff could not reasonably be expected to have declined to become a passenger in the motor vehicle.
The Court is accordingly required to form its own assessment of contributory negligence which it considers appropriate in the circumstances. In doing so it must be guided by the principles referred to by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494. In summary, the court must undertake a comparison of culpability, that is assessing the degree of departure from the standard of care of a reasonable man, and of the importance of such acts in causing the damage.
In Joslyn, McHugh J at [35] - [38] said, inter alia: "35 … But otherwise the plaintiff is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused the plaintiff's injury or damage. No exception should or could in principle be made in the case of the passenger accepting a lift from an intoxicated driver. 36 It is true that the reasoning in some decisions concerned with a passenger accepting a lift with an intoxicated driver appears to suggest that this class of case, like those concerned with children, is another exception to the general rule that the test for contributory negligence is an objective test. But, in principle, intoxicated drivers cannot be an exception to the general rule. Cases like Banovic v Perkovic, Nominal Defendant v Saunders and McPherson v Whitfield cannot be followed in so far as they hold or suggest that a passenger is guilty of contributory negligence in accepting a lift from an intoxicated driver only if the passenger knew, or was aware of signs indicating, that the driver was intoxicated. In my view, the law on this subject was correctly stated by Cooper J in Morton v Knight and by Clarke JA in McGuire v Government Insurance Office (NSW). 37 The issue in a case like the present is not whether the passenger ought reasonably to have known of the driver's intoxication from the facts and circumstances known to the passenger. The relevant facts and circumstances include those which a reasonable person could have known by observation, inquiry or otherwise. In cases of contributory negligence outside the field of intoxicated passengers and drivers, the courts take into account as a matter of course those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care. In Morton, Cooper J relied, correctly in my opinion, on the reasoning in the judgments of this Court in O'Neill v Chisholm and held that the relevant facts and circumstances included those which a reasonable person would have ascertained. The test applied by all members of the Court in O'Neill, including Walsh and Gibbs JJ who found no contributory negligence, was whether the passenger ought to have realised that alcohol had impaired the driver's capacity to drive. 38 Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition - if there could be such a person - would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person - a sober person - would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication." (Footnotes omitted)
The whole conduct of each negligent party must be subjected to comparative examination. In the present circumstances, the plaintiff knew of the consumption of drugs by himself and of the defendant at the hotel and the fact that the defendant was unlicensed. The plaintiff willingly entered the Ford and allowed the defendant to drive from the hotel. As Dr Perl set out at paragraph 8 of her second report, signs of the defendant's intoxication were available to the plaintiff prior to their journey. Further, when the defendant stopped the vehicle during the journey, he was sufficiently aware of her condition because he asked her the question, "Are you okay, habubib?" He then urged her to continue to drive despite her condition. Accordingly, I find that the plaintiff was aware of the impaired state of the defendant, yet he participated in the journey.
Any submission that the plaintiff was impaired to the extent that he could not understand any inability of the defendant to drive is, in these circumstances, rejected. Further, I apply the observations of McHugh J in Joslyn at [39] when his Honour said: "39. … a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained. … Similarly, the fact that the passenger's intoxicated condition prevents him or her from perceiving the risks attendant on driving with an intoxicated driver does not absolve the passenger from complying with the standard of care required of an ordinary reasonable person…"
Whilst the plaintiff asserts that the accident resulted from the defendant's tiredness, which was something beyond his knowledge, there is no evidence that the defendant's tiredness is the dominant cause of the accident. The evidence of Dr Perl establishes that the defendant had consumed methylamphetamine to a potentially fatal range (paragraph 8 of Dr Perl's report) and that a "run" of drugs is usually followed by a period of marked withdrawal "during which there is extreme fatigue, exhaustion, sleepiness and depression". On the balance of probabilities, the accident resulted from the effects of drugs supplied by the plaintiff and consumed by the defendant.

[38]

Assessment of contributory negligence

In Williams v Government Insurance Office of New South Wales (1995) 21 MVR 148, the New South Wales Court of Appeal by majority found that a plaintiff who sustained injuries in a motor vehicle as a passenger, knowing that the driver had consumed alcohol and held only a learner's permit, should have damages reduced by 80% for contributory negligence. Both the driver and the appellant were affected by alcohol.
In Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell [2013] NSWCA 219 ("Green"), the Court of Appeal held an apportionment of 80% contribution by an injured passenger should not be set aside. Although the primary cause of the damage was the carelessness of the driver, the Court of Appeal examined the culpability of the injured plaintiff as follows: "However this submission is attended by two separate difficulties. First, it elides causation and culpability. Culpability is the measure of departure from an appropriate standard of care and may be viewed separately from the causal link between carelessness and harm. Secondly, the comparison between the culpability of the driver and that an injured plaintiff is problematic and highly fact specific.… An apportionment which is "just and equitable" requires the weighing of the culpability of each plaintiff as against that of the negligent driver and an assessment of the causative contribution of the lack of care of each."
Section 138(4) of the MACA requires the Court to state its reasons for determining the percentage of contributory negligence. Applying the principles in Green, the Court is required to assessment "an apportionment which is "just and equitable"", which "requires the weighing of the culpability of each plaintiff as against that of the negligent driver and an assessment of the causative contribution of the lack of care of each".
The test for contributory negligence is an objective test. In Nominal Defendant v Meakes [2012] NSWCA 66, Sackville AJA (with whom McColl JA agreed) observed at [79] - [80]: "79 The common law and the enacted law of contributory negligence apply to an award of damages in respect of a motor accident, subject to presently irrelevant exceptions: MAC Act, s 138(1). 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: s 138(3); Law Reform (Miscellaneous Provisions) Act 1965, s 9(1)(b). The Court must state its reasons for determining a particular percentage: s 138(4). The enacted law of contributory negligence includes s 5R of the Civil Liability Act 2002 ("CL Act"). 80 The test of contributory negligence is objective: the question is whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Joslyn v Berryman [2003] HCA 34; 214 CLR 552, at 564-566 [32], [34], [38], per McHugh J; CL Act, s 5R(2). Once contributory negligence is found, the apportionment as between a plaintiff and defendant: "of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, at 532-535, per curiam."
The Court considers that the culpability of the plaintiff was high. In addition to his knowledge that the plaintiff had consumed drugs over a substantial period; had supplied her with drugs in the hours before her driving; and knew that she had no licence to drive, the plaintiff was negligent to a high degree in travelling in the vehicle as a passenger knowing all the circumstances; the plaintiff urged the defendant to resume driving after the defendant stopped the car and informed him that she was incapable of driving.
The plaintiff initiated the idea of embarking on a fishing trip and asked the defendant to accompany him on such trip. The plaintiff was aware of the unlicensed status of the defendant, and the fact that she had consumed drugs. Nevertheless, the plaintiff voluntarily became a passenger in the vehicle, thereby assuming the risk that the defendant might drive negligently.
In the circumstances the court notes the defendant's claim that contributory negligence should be 100%. However, such claim ignores the fact that the defendant was in part to blame for the accident, as she was the driver albeit unqualified to drive and under the influence of drugs. The Court finds that the following considerations warrant apportionment of 70% contributory negligence on the part of the plaintiff: 1. The plaintiff knew that the defendant did not have a driver's licence; 2. The plaintiff allowed the unlicensed driver to drive his vehicle; 3. The plaintiff was aware or ought to have aware that the defendant was intoxicated by drugs; 4. The defendant had made it plain to the plaintiff that she was not capable of driving after stopping the plaintiff's vehicle during the journey; 5. The plaintiff urged the defendant to continue to drive after it was conveyed to him that she was under an impairment to drive.

Raad v Cossey

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Cases Cited (59)