Taylor v Hall

Credibility

1. There were three people in the vehicle when it crashed: the plaintiff, the defendant, who was driving, and Gregory O'Brien who was sitting in the back seat on the driver's side. Each gave evidence about the accident and the events leading up to it. It is no surprise that each version of events was different and that the credit of each witness is critical to the outcome of the case. In light of that, it is necessary to address the issue of credit before turning to the evidence of what led to the accident.

Plaintiff

1. The plaintiff was not an impressive witness and I found that her willingness and ability to give accurate or reliable evidence changed rapidly.
2. Overall, even though it was her case, the plaintiff showed little regard for the proceedings or the importance of giving truthful and frank evidence. On many occasions she simply refused to answer questions in cross-examination. On several occasions, apparently unwilling to continue, she simply left the room where her evidence was being given. That impetuosity alone is enough to undermine her overall credit; however, in addition, her evidence was, in many respects, inconsistent with objective evidence and, in important respects, was inconsistent with the evidence of Mr O'Brien. The consideration of those inconsistencies and the plaintiff's general demeanour in giving evidence lead me to conclude that I cannot rely on her evidence without some corroboration or unless it is uncontroversial.
3. Part of my reasoning in that respect is that Mr O'Brien, in stark contrast to the plaintiff, was an impressive witness. He frankly gave evidence with every appearance of attempting to be as truthful as his memory allowed. His recollection of events was clearly blurred by the passage of time. For that reason, I give greater weight to the statement he gave to the police later in the day of the accident where it conflicts with his oral testimony. However, generally, I accept his evidence over that of the plaintiff wherever there is a conflict between them.

Defendant

1. The defendant also impressed me as a witness. While he frankly admitted that he had initially lied to the police and subsequently to an insurance investigator about the accident, I accept that he did so to avoid getting into trouble. He did get into trouble though, being charged with dangerous driving offences. However, he pleaded guilty to those offences and was convicted and sentenced for the one offence.
2. Now, as he said in evidence, he had nothing to gain from his evidence and, indeed, nothing to lose.
3. Of the three eyewitnesses, Mr Hall's recollection of the events was the clearest and his version of events was the most likely. Although he was tested closely on his drug habit at the time of the accident, he maintained that his recollection was clear. His evidence supported that claim. I will summarise it in due course but note, for present purposes, that some of the inconsistencies between Mr O'Brien's evidence and Mr Hall's related to the time and location of the burnouts being undertaken by Mr Herbert. The fact that Mr Hall was a local and Mr O'Brien was not, and that Mr Hall was driving and Mr O'Brien was a passenger in the backseat make it more likely that Mr Hall would know the precise location of those events which took place on unlit regional backroads in the early hours of the morning. Mr O'Brien had never been on that road before the time of the accident whereas Mr Hall knew the roads well. In light of that, where there is any contest between the defendant's evidence and that of the plaintiff and between Mr Hall's evidence and Mr O'Brien's evidence, I give greater weight to Mr Hall's evidence.

Factual Background

1. In 2016 the plaintiff was living with her parents in Muswellbrook. That is a town in the upper Hunter Valley of New South Wales, about 120 kilometres northwest of Newcastle. She was originally from Condobolin in the central west of New South Wales.
2. On 4 April 2016 the plaintiff met up with a friend, Gregory O'Brien, who came from a town near Condobolin and was on his way to Queensland to look for work. Mr O'Brien gave evidence that he and the plaintiff went to a house in Muswellbrook and smoked crystal methamphetamine, or ice. They then drove in the plaintiff's car to the nearby town of Aberdeen, about a 20 minute drive north on the New England Highway.
3. In Aberdeen, the plaintiff and Mr O'Brien went to the house of Stephen Herbert, also known as Herbie. Daniel Hall, another friend of the plaintiff's, was there fixing the roof lining of his car.
4. At some point after driving to Aberdeen, the plaintiff realised that her car had run out of petrol. It was late in the evening and there was no petrol station open in Aberdeen. For that reason, Mr Herbert drove in his car to Muswellbrook to get some petrol for the plaintiff. While they were waiting for Mr Herbert to return, the plaintiff, Mr O'Brien and Mr Hall decided to drive to the showground in Aberdeen in Mr Hall's car. Mr O'Brien's evidence, which I accept, is that he and one of the others got out of Mr Hall's car and got into another car at the showground and smoked more ice. The plaintiff denied that she smoked ice there, but given Mr Hall's evidence that the plaintiff and Mr O'Brien got into another car at the showground, I find that she did.
5. The three then returned to Mr Herbert's house in Mr Hall's car having been stopped by police on the way and searched. There, they received a telephone call from Mr Herbert saying that he had broken down on the Kayuga Road just outside of Muswellbrook. One of the leaf springs had come loose. The three then travelled in Mr Hall's car to assist Mr Herbert. When they arrived, Mr Herbert was fixing his car with the help of two other men. There was another car parked on the roadside.
6. Once the car was fixed, the plaintiff returned to the front passenger seat of Mr Hall's car, Mr O'Brien got into the rear driver's side passenger seat and Mr Hall got into the driver's seat. Mr Herbert and one of the other two men got into Mr Herbert's car.
7. The cars then headed north along Kayuga Road towards Aberdeen.
8. There is some controversy about what happened on this journey.
9. The breakdown occurred on Kayuga Road just past the bridge that leads west out of Muswellbrook over the Hunter River and before the first road on the left, Wybong Road. It is an agreed fact that it was 6.38 kilometres from the intersection of Wybong Road and Kayuga Road to the turn off, on the right, onto Stair Street. About halfway between the breakdown point and Stair Street there is a road to the left, Castlerock Road. The speed limit was 80 km/h. Stair Street travels east from Kayuga Road for a short distance until it makes a T-intersection with a sealed road I will refer to as the Mine Access Road. After turning right onto the Mine Access Road, there is a large sweep in the road to the left and the road then continues in an easterly direction, crosses a small bridge over the Hunter River and continues to the New England Highway just south of Aberdeen.
10. The plaintiff said in her evidence in chief that she had no real recollection of the journey to the T-intersection between Stair Street and the Mine Access Road. [1] She said that, at that point, Mr Herbert was doing donuts. [2] Ms Taylor said that Mr Hall drove past Mr Herbert and started to go very fast. She said that she told Mr Hall to slow down several times. She said that she had called Mr Herbert's partner, Marie, and told her that Mr Hall would not slow down. She said that Marie told her to tell Mr Hall to slow down. Marie was not called to give evidence and I infer that her evidence would not have assisted the plaintiff.
11. The plaintiff said that Mr Hall moved his car to the left to let Mr Herbert go past and, at this point, Mr Hall lost control of the car and it left the road and crashed. She was taken in Mr Herbert's car to Mr Herbert's house and then to Scone Hospital.
12. In cross-examination, the plaintiff accepted that the cars had been travelling at over 100 km/h on Kayuga Road and had overtaken each other once or twice. When she was asked about whether she had in fact asked Mr Hall to slow down, she insisted that she had and said that Mr O'Brien had also asked him to slow down. [3] The plaintiff accepted that Mr Herbert had been doing donuts at the intersection of Castlerock Road and Kayuga Road and that, from the breakdown point to the location of the accident, Mr Hall was driving well in excess of the speed limit and in a manner she thought was dangerous and reckless.
13. At the hospital, the plaintiff told staff that she had been injured falling down the stairs. When she was confronted with the fact that her injuries were consistent with a car accident, she admitted that she had been involved in a car accident.
14. I accept the following submission by counsel for the defendant: "(51) As was put to the plaintiff in cross examination, the plaintiff's reluctance to disclose the true circumstances of her injury was inconsistent with her claim that she was an innocent victim of the dangerous driving of others. (52) The following evidence is compelling: 'Q. If you were an innocent victim in this accident because you had told the driver to slow down, why were you only prepared to admit that you were in a car accident when directly challenged about or confronted with your injuries? …….. Q. Well do you say you have no explanation? I'm asking you a very clear question. A. I have no explanation at this time. Q. Why were you not prepared to tell the medical staff at the hospital that you had been involved in a car accident? A. Your Honour, I have no explanation to answer that question.'" (Footnote omitted)
15. Mr O'Brien's evidence in chief was that Mr Herbert had been doing donuts at the T-intersection of Stair Street and that it was only after that that Mr Hall's driving became dangerous. However, he said that he did not ask Mr Hall to slow down and could not remember anyone else doing so.
16. His description of the accident was otherwise consistent with the plaintiff's; however, he frankly admitted that his recollection was not all that clear and that reading his police statement had helped him recall events. That statement was made on the morning of 5 April 2016, not long after the accident. The events were clear in his memory at that time and he made every effort to be accurate and complete in making it.
17. In that statement, referring to the journey before the turn into Stair Street, Mr O'Brien said: "After that, it turned into a bit of a rally. We started to get some speed on the way back. Herbie's ute did overtake us on two occasions at speed. ..."
18. Under cross-examination Mr O'Brien said that the cars had been travelling up to 140-150 km/h initially and, on Mine Access Road this increased up to 170 km/h.
19. The defendant's evidence was that, from the breakdown point, both he and Mr Herbert were driving at up to 150 km/h and that Herbie overtook him and then did burnouts at Castlerock Road. He described their driving as "racing". He said that, after the turn onto Mine Access Road, he was travelling up to 180 km/h with Mr Herbert close behind. Again, they were racing. Mr Hall said that his car was at full speed and Mr Herbert came up behind him travelling faster and was overtaking him. Mr Hall then lost control of the car and collided with two trees. He said that neither the plaintiff nor Mr O'Brien asked him to slow down at any point, rather, that everyone was laughing. [4] He said that he, had he been asked, he would have slowed down or stopped to let them out. [5] Mr Hall was not challenged on this aspect of his evidence.
20. On the basis of this evidence, I make the following findings about the critical period from the breakdown point on Kayuga Road until the accident on the Mine Access Road.
21. Shortly after leaving the breakdown point, the defendant accelerated his car and travelled at speeds well over the speed limit of 80 km/h and up to 150 km/h. Mr Herbert was driving at similar speeds and each of them engaged in a number of overtaking manoeuvres. The two vehicles were engaged in a contest of speed as they drove north along Kayuga road.
22. Mr Herbert reached the intersection of Kayuga Road and Castlerock Road first and performed a number of "donuts". The defendant's car drove at speed past Mr Herbert's car and Mr Herbert followed. Both vehicles then turned right off Kayuga Road onto Stair Street. Mr Herbert overtook Mr Hall again, and performed more donuts at around the point where Stair Street turned into Mine Access Road. Mr Hall again passed Mr Herbert and continued onto Mine Access Road, increasing his speed considerably at this point.
23. Mr Herbert again followed and came up close behind Mr Hall's car at about the time they crossed the bridge over the Hunter River. The cars were travelling at more than 170 km/h at this point. The defendant's car was going at its maximum speed.
24. The two cars travelled side by side for a number of seconds as Mr Herbert's car was overtaking the defendant's car. Up to this point, there had continued to be a contest of speed between the two vehicles which were both being driven in a furious and reckless manner and in a manner dangerous to the public, contrary to s 117 of the Road Transport Act 2013 (RTA Act).
25. As Mr Herbert's car was overtaking the defendant's car, the defendant lost control of his vehicle and it left the road and collided with a tree at the side of the road and then hit another tree.
26. At no time during the journey from the breakdown point to the point of the accident did either Mr O'Brien or the plaintiff ask the defendant to slow down, to change his manner of driving or stop to let either of them out. Indeed, both of them were laughing.

Duty of Care

1. The first legal issue to be resolved is whether the defendant owed a duty of care to the plaintiff. Ordinarily, as the driver of the motor vehicle in which the plaintiff was a passenger, the defendant would owe the plaintiff a duty of care. However, the law recognises that the illegal conduct of the plaintiff may deny the existence of any such duty: Miller v Miller (2011) 242 CLR 446.
2. In his further amended defence, the defendant denied that he owed the plaintiff a duty of care on the basis that, at the time of the accident, the plaintiff and defendant were engaged in a joint illegal enterprise. The particulars of that enterprise were given as: "4 … (a) Voluntarily participating in an illegal race between the defendant's vehicle and the vehicle driven by Steven Herbert on and about Dartbrook Mine Access Road contrary to s 115 Road Transport Act 2013. (b) Complicity in the dangerous driving of the defendant's vehicle contrary to section 52A(3)(c) Crimes Act 1900. (c) Complicity in the driving of a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public contrary to s.117 of the Road Transport Act 2013." (Emphasis in original) There was no reply filed.
3. The defendant argued [6] that, given the plaintiff was a willing participant in the manner in which the vehicle was being driven by the defendant, no duty of care was owed to her by the defendant. He argued that his conduct was contrary to both ss 115 and 117 of the RTA Act. He argued that the plaintiff's criminal liability for that conduct arose, not from a common purpose, but as a form of derivative liability from her willingness to be present in the vehicle that was driven in an illegal manner.
4. The plaintiff argued that there was no "race" within the meaning of s 115 of the RTA [7] , and that, in any event, she did not participate in any race. Secondly, she argues that the defence must fail because there is no crime of complicity in the Crimes Act 1900 (NSW) [8] and, as there was no common purpose, as in Miller v Miller, the principles explained in that case do not apply to the facts of this case.
5. Miller v Miller concerned the liability of a driver for the injuries suffered by a passenger in the car that had been stolen from outside a nightclub in Perth. Each of the occupants was involved in a joint illegal enterprise, namely, the illegal use of the car. The majority of the High Court framed the question to be determined as follows: "[16] … would it be incongruous for the law to proscribe the plaintiff's conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct? …"
6. In Miller v Miller, the conduct of the driver was seen to be that of the plaintiff because the driver was carrying out his part in the unlawful undertaking in which both plaintiff and defendant were engaged: [71]. The majority explained that determination of incongruity required a nuanced approach, having regard to the relevant statute and identification of its purpose: [74]; see also Bevan v Coolahan [2019] NSWCA 217 at [43], [53] (Leeming JA). Ultimately, the majority held that the driver owed a duty of care to the passenger because her involvement in the joint illegal enterprise ceased when she asked to be let out of the car.
7. It is clear that this case can be distinguished from Miller v Miller on a number of bases. First, here the use of the car itself was not illegal: it belonged to, and was driven by Mr Hall who was licensed to do so. Secondly, the purpose of the journey from Aberdeen to the break down point, and back, was not illegal. Thirdly, although the manner in which the car was driven became illegal (unquestionably at least under s 117 RTA), there is no allegation that that was either a joint enterprise in itself, or a probable consequence of any other illegal common purpose except, perhaps, the racing.
8. In spite of those differences, the principles concerning the impact of the illegal conduct of a plaintiff on the question of duty of care as explained in Miller v Miller are applicable and the approach to the issue here must be in accordance with that authority.
9. The first step in the analysis here is to determine whether the plaintiff's conduct was proscribed by statute, in particular, the RTA.
10. Section 115(1) of the RTA provides: (1) A person must not organise, promote or take part in - (a) any race between vehicles on a road, or (b) any attempt to break any vehicle speed record on a road, or (c) any trial of the speed of a vehicle on a road, or (d) any competitive trial designed to test the skill of any vehicle driver or the reliability or mechanical condition of any vehicle on a road, unless the written approval of the Commissioner of Police to the holding or making of the race, attempt or trial has been obtained.
11. Section 117 of the RTA provides: 117 Negligent, furious or reckless driving (1) A person must not drive a motor vehicle on a road negligently. … (2) A person must not drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public. … (3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following - (a) the nature, condition and use of the road on which the offence is alleged to have been committed, (b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road, (c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes). (4) In this section - grievous bodily harm includes any permanent or serious disfigurement.
12. The plaintiff argued that there was no "race" within the meaning of s 115(1) of the RTA because there was no starting point, no finishing line, no agreed or implied rules, no "win", no handicapping and no prize. [9] None of those things is a necessary element of a "race" that is proscribed by s 115(1). In Director of Public Prosecutions v Belani (2005) 64 NSWLR 319, Johnson J held at [52] that the phrase "take part in … any race between vehicles" ought to be given its ordinary meaning that can apply to an impromptu or unplanned race between vehicles as occurred in that case. There, the evidence of the police witnesses was that four vehicles were accelerating and jostling for position, changing lanes without indication, trying to get around one another and travelling at speeds well in excess of the stipulated speed limit: [13].
13. The ordinary meaning of a "race" is a contest of speed between two or more people or things. While a pre-arranged start and stop place, a prize and rules may be indicia of such a contest, they are not necessary to its existence. One of two people may, as here, simply start driving quickly. It will turn into a race when the second driver joins in, whether by speeding, jostling, overtaking, blocking and so forth. It may end when one car has reached maximum speed and the other is ahead or, as here, is still able to overtake. Of course, as also happened here, the race will be brought to a swift end when one car loses control and crashes into a tree.
14. There is no doubt that Mr Hall and Mr Herbert were taking part in a race. They were travelling at increasing speeds and overtaking each other. At the end, Mr Herbert's car was coming up to the rear of Mr Hall's car at great speed and overtook it.
15. The plaintiff was a willing participant in that race; she did not ask Mr Hall to slow down or to be let out. Rather, she and Mr O'Brien laughed. That conduct amounted to taking part in a race and was proscribed by s 115 of the RTA.
16. The purpose of the prohibition on taking part in a street race is undeniably to enhance public safety. Racing on a public road is an inherently dangerous activity. Drivers in a race necessarily do not take the care that would ordinarily be their duty to take. In those circumstances, to conclude that the driver in a race owed a duty of care to a willing participant in the race would not be consistent with the purpose of the RTA proscribing racing and, more pertinently, prescribing taking part in racing.
17. For those reasons, I conclude that the defendant did not owe the plaintiff a duty of care and the plaintiff's claim must fail.
18. On a strict view, my conclusion does not match perfectly with the defence as pleaded. The plaintiff's participation in a race was pleaded as a particular of an illegal joint enterprise rather than as a separate offence occurring at the same time. The difference in principle between the pleading and the conclusion that I have come to is that, on my view, the acts of the defendant were not attributable to the plaintiff in the same way that the acts of one party to a joint illegal enterprise are attributable to another party to that enterprise: see Il v The Queen (2017) 262 CLR 268 at [29]. For there to be a joint illegal enterprise, there must be some agreement, implied or express, to the commission of an offence. That was not the case finally argued by the defendant. As I have noted, he relied on willing participation in an offence, not agreement to it. The difference may be almost imperceptible, but it exists.
19. In spite of this, however, I consider that it was sufficiently clear that the defendant asserted that the plaintiff was taking part in a race contrary to s 115 of the RTA and that, as a result, the defendant did not owe her a duty of care. That is the conclusion I have arrived at, although for slightly different reasons to the argument developed by the defendant. As will be seen, the view I take of the plaintiff's involvement in the race means that her claim must fail in any event. Before I turn to consider that issue, I must deal briefly with the issue arising under the contravention by the defendant of s 117 of the RTA.
20. I do not accept that the plaintiff had any separate criminal liability under s 117 absent a joint illegal enterprise. Ordinarily, and absent some common purpose, only the driver can be responsible for contravention of s 117 (cf. Bevan at [98]).
21. The plaintiff argues that the defence in relation to s 117 of the RTA must fail because there is no offence of complicity in the Crimes Act 1900. However, complicity is a word used to describe a range of ways in which accessorial or derivative liability for offences may arise. One such way is aiding and abetting contrary to s 351B of the Crimes Act 1900.
22. It is a nice question whether liability for the offence of aiding and abetting would provide the incongruity required for there to be no duty of care. None of the cases I was referred to provides a neat answer to that question. The answer, in my view, arises from the fact that the purpose of prohibiting the aiding and abetting of an offence is the same as the purpose of the primary offence. Here, that would be public safety.
23. The offence of aiding and abetting requires, amongst other things, that a person intentionally encourage the commission of a particular offence: Giorgianni v R (1985) 156 CLR 473, 487 - 488 (Gibbs CJ), 500 (Wilson, Deane and Dawson JJ). Thus, the purpose of the prohibition is to prevent the occurrence of the principal offence and, by doing so, enhance the purpose of the prohibition of the conduct that amounts to that offence.
24. Accordingly, it is arguable that the active encouragement by a passenger to drive dangerously affects the relationship between that passenger and the driver so that a duty of care to the passenger would be inconsistent with the statutory prohibition of the encouragement. However, I do not accept that the plaintiff aided and abetted the offence of dangerous driving. The fact that the plaintiff laughed and did not ask the defendant to slow down or let her out does not establish to my satisfaction that she intentionally encouraged Mr Hall to take part in, or continue to take part in the race.
25. Against the possibility that my conclusion on duty of care is found to be wrong or, for that matter, beyond the scope of the pleadings, I will consider briefly the remaining issues in order to minimise the risk that there needs to be a new hearing: Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3]-[4]; In the matter of Jimmy's Recipe Pty Ltd (No 2) [2020] NSWSC 632.

Voluntary assumption of risk

1. The first of the remaining issues is the alternative defence that the plaintiff knowingly accepted the risk of continuing to be a passenger in Mr Hall's car once the race began. That defence engages s 140 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) which provides: (1) Except as provided by subsection (2), the defence of volenti non fit injuria is not available in proceedings for damages arising from a motor accident but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured person or deceased person was negligent in failing to take sufficient care for his or her own safety. (2) If a motor accident occurs while a motor vehicle is engaged in motor racing, the defence of volenti non fit injuria is available in proceedings for damages brought in respect of the death of or injury to: … (b) a passenger in the vehicle so engaged, other than a passenger who is less than 18 years of age or who otherwise lacked capacity to consent to be a voluntary passenger. (3) For the purposes of subsection (2), a motor vehicle is engaged in motor racing if it is participating in: (a) an organised motor sports event, or (b) an activity that is an offence under section 115 of the Road Transport Act 2013.
2. There was no issue that the plaintiff had the capacity to consent to be a voluntary passenger. Accordingly, my finding that there was a race between Mr Herbert and Mr Hall from the breakdown area to the Mine Access Road when Mr Hall lost control of the vehicle, means that the defence of volenti non fit injuria, or voluntary assumption of risk, is available.
3. In Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Tort Reports ¶81-874 (McClellan CJ at CI) held, at [85], that the defence requires proof of three matters: "1. That the plaintiff perceived the existence of the danger; 2. That he or she fully appreciated it; 3. That he or she freely and voluntarily agreed to accept the risk." See also Imbree v McNeilly (2008) 236 CLR 510 at [81] (Gummow, Hayne and Kiefel JJ).
4. The plaintiff's evidence was that she thought that Mr Hall's driving along the Mine Access Road became dangerous and reckless. [10] She said that she not only asked him to slow down more than once but also that she told Marie on the telephone about the driving and that Marie told her to tell him to slow down. I have rejected the latter part of that evidence; however, the fact that she gave it indicates that she was well aware of the danger involved in the manner of Mr Hall's driving and that she fully appreciated it.
5. That conclusion is fortified by the fact that the plaintiff told people at the hospital that she had been injured falling down the stairs and, when confronted with this in cross-examination admitted that she had no explanation for that. The inference I draw from it, is that she knew at the time that she had been involved in illegal driving.
6. I have found that the plaintiff willingly participated in the race between the two vehicles. The obvious conclusion to be drawn from that is that she freely and voluntarily agreed to accept the risk that was inherent to that race, namely, serious physical injury. For those reasons, the alternative defence must also succeed and the plaintiff's claim must be dismissed.
7. If I am wrong about that, I must determine whether any damages should be reduced by reason of the plaintiff's failure to take care for her own safety: s 140(1).

Failure to sufficiently take care for her own safety

1. The analysis of this question will depend on what alternative findings are made. For instance, if the correct finding was, contrary to my conclusion, that the plaintiff did ask Mr Hall to slow down, then, given that there was little else that she could reasonably do to take care for her own safety, her damages would not be reduced at all. However, if the correct finding was that, even though the plaintiff did not ask to be let out, she did not voluntarily accept the risk of injury because for example, she did not think that any risk would eventuate at all, the outcome would be different. In my view, that conclusion is not open on the evidence. Certainly, the plaintiff did not give evidence to that effect.
2. For that reason, I consider it necessary only to address the issue on the basis of my finding that the plaintiff did not ask Mr Hall to slow down (or for that matter, that she be let out of the car). On that basis, my assessment is that the plaintiff failed to take any step for the care of her safety and that this had a significant impact on the outcome. There was plenty of time for the plaintiff to complain about the speed at which the defendant was driving and, every opportunity for her to encourage him either to slow down, or to stop and let her out. The fact that she did not had the direct consequence that the speeding and recklessness continued. For that reason, I would reduce any damages to which the plaintiff may be entitled by 50%.

Non-economic loss

1. If my findings on liability are wrong, then the plaintiff is entitled to non-economic loss if her injuries exceed the 10% whole person impairment: s 131 of the MAC Act.
2. There is no dispute, and I accept on the evidence, that as a result of the accident the plaintiff suffered a significant fracture to her left elbow and her pelvis requiring surgery. The plaintiff also suffered an injury to her left shoulder. There is also now no dispute that her injuries exceeded the 10% threshold in s 131 of the MAC Act.
3. There were issues as to the plaintiff's current injuries and to what extent she has suffered any psychological injury, if at all.
4. The plaintiff herself gave very little evidence of her ongoing injuries and, indeed, told her general practitioner, Dr Graan [11] in December 2016 that she had considered returning to work at IGA where she had previously worked and conceded under cross-examination that she felt physically capable of performing that work.
5. The plaintiff's submissions relied, to a large extent, on the evidence of her mother. [12] I give that evidence no weight. There was a stark contrast between the picture of the plaintiff painted by her mother and the plaintiff's own evidence of her drug use as well as the objective evidence of her longstanding anti-social conduct. That conduct need only be examined briefly.
6. By the age of nine, the plaintiff was suspended from school for fighting. [13] There followed smoking, being disruptive in class and refusal to follow directions. By Year 8 the plaintiff was consistently absent from school [14] and by Year 10 she had already come to the attention of the Children's Court. [15]
7. By 2014 the plaintiff was a daily user of cannabis and was regularly using methamphetamine. She had reported depression and suicidal thoughts.
8. In January 2016, the plaintiff had deliberately injured an off duty police officer while driving. Her drug use and other offending continued after the accident and did not abate with the birth of her child in late 2019 or early 2020. Records from the NSW Department of Corrective Services [16] show that, in the period leading up to the hearing of this matter, the plaintiff was using drugs regularly and behaving so badly that her mother had kicked her out of home and refused to return her child to her for the safety of the child.
9. Further, the medical opinions relied on by the plaintiff suffer the difficulty that they are based on the history given by the plaintiff. That history has not been established, particularly given my view of the plaintiff's credibility, and I give those opinions little weight. However, I do accept that the plaintiff has a mild limitation of movement in her left elbow and suffers occasional pain in her hip. I accept that the plaintiff has a number of psychological conditions, including post-traumatic stress disorder and a depressive disorder. However, given that the diagnosis of these conditions was largely dependent on a history obtained from the plaintiff, I am not satisfied that they are significant disorders.
10. Given the continuity of the plaintiff's conduct, I do not accept that the accident materially contributed to her psychological state. That view is supported by the supplementary opinion of the expert witness, Dr George. [17]
11. In light of these conclusions, and having regard to the frank injuries suffered in the car accident, I consider that the appropriate amount for non-economic loss to be $140,000.

Domestic assistance

1. The plaintiff adduced no evidence to support this claim and I am not satisfied that there is, or ever has been, any basis for making it.

Economic loss

1. The plaintiff's claim for past economic loss is based on her evidence that she had made an application for a job in the mines prior to the accident and that she was unable to take up that opportunity because of the accident. In respect of future economic loss, the plaintiff claimed that she had an ambition to work in the mines like her parents and brother. In submissions she said (at [79]): " … on the balance of probabilities the Plaintiff would have accepted the offer of the traineeship that arrived within days of the accident or there would have been other opportunities to work in the mines and such opportunities would have been accepted. The plaintiff submits that the mine work would be such a cherished opportunity that it would have provided transformational impetuous to the Plaintiff. The loss of this opportunity can be described as "a sliding doors moment"."
2. This submission bears no relationship to the facts. First, in the five years since she had left school prior to the accident, the plaintiff had had one job, obtained through her brother. She abandoned that after a few weeks. Secondly, I do not accept the evidence that the plaintiff was offered any position in the mines because I do not believe she is a credible witness and there is no objective evidence to corroborate the claim. Thirdly, the plaintiff's significant and ongoing drug use is problematic in respect of working in the mines. [18] Fourthly, her ongoing record of driving infringements and loss of licence would also prove problematic to her prospects of obtaining employment, particularly driving trucks like her mother. Her licence has been suspended on five different occasions and she has been disqualified from driving on five occasions. Fifthly, I am not satisfied that any of the ongoing complaints the plaintiff suffers as a result of the accident diminished her capacity to work to any significant degree.
3. For those reasons, I am not satisfied that the plaintiff has suffered any past economic loss as a result of the accident and, having regard to s 126 of the MAC Act, I am not satisfied that, but for the accident, the plaintiff would have obtained the full time employment on which she bases her claim. However, given that there were frank injuries suffered as a result of the accident and that there are some ongoing consequences of those injuries, it is appropriate to award a small amount for future economic loss, including superannuation. I would assess that amount to be $50,000.

Out of pocket expenses

1. The parties' have agreed that past expenses have amounted to $27,358.35.
2. I am not satisfied that there is sufficient basis in the evidence to award anything for future expenses beyond a nominal amount of $5,000.
3. In total, taking into account the reduction for the plaintiff's failure to take sufficient care for her own safety, the damages I would have awarded the plaintiff are (rounded up) $112,000.

Conclusion

1. The plaintiff's claim must be dismissed. There will be a verdict for the defendant with costs.

Endnotes

1. Tcpt, 6 May 2020, p 74 (3-14).
2. A manoeuvre where the front tyres of a vehicle remain stationary and the rear of the car pivots around the front, leaving circular marks on the surface of the road. They are also known as burnouts or circle work.
3. Tcpt, 7 May 2020, p 199 (40).
4. Tcpt, 11 May 2020, p 349 (30) and p 371 (20-35).
5. Tcpt, 11 May 2020, p 349 (32-34) and p 371 (20-55).
6. Defence submissions, [109].
7. Plaintiff's submissions, [54].
8. Plaintiff's submissions, [59].
9. Plaintiff's submissions, [54].
10. Tcpt, 8 May 2020, p 260 (9-19).
11. Ex 16, p 356.
12. Tcpt, 8 May 2020, p 310 (3).
13. Ex 17, p 277.
14. Ex 17, pp 242-249.
15. Ex 16, p 405.
16. Ex 16, p 689ff.
17. Ex 3.
18. Tcpt, 7 May 2020, p 165 (15-27); Ex 16 pp538-541, 563-566 and 576. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2020