Aaron Lot Stafford v Andrew Carrigy-Ryan and QBE Insurance (Australia) Ltd (ACN 003 191 035) - [2013] ACTSC 99

AARON LOT STAFFORD v ANDREW CARRIGY-RYAN AND QBE INSURANCE (AUSTRALIA) LTD (ACN 003 191 035)
[2013] ACTSC 99 (4 July 2013)

PERSONAL INJURY – motor vehicle accident – driver and passenger plaintiff intoxicated by alcohol – extent to which plaintiff was aware of driver's level of intoxication – whether defendants established special and exceptional circumstances such that no duty of care owed – contributory negligence – assessment – brain injury – extent of continuing disability – delayed complaint of injury to cervical spine – claim rejected

Civil Law (Wrongs) Act2002 (ACT), ss 47, 95-6

Cook v Cook (1986) 162 CLR 376
Gala v Preston (1991) 172 CLR 243
Imbree v McNeilly (2008) 236 CLR 510
Joslyn v Berryman (2003) 214 CLR 552
Miller v Miller (2011) 242 CLR 446

No. SC 592 of 2011

Judge: Acting Justice Sidis
Supreme Court of the ACT

Date: 4 July 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 592 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:
AARON LOT STAFFORD
Plaintiff

AND:
ANDREW CARRIGY-RYAN
First Defendant

QBE INSURANCE (AUSTRALIA) LTD
ACN 003 191 035

Second Defendant

ORDER

Judge:  Acting Justice Sidis
Date:  4 July 2013
Place:  Canberra

THE COURT ORDERS THAT:

The proceedings be adjourned for 28 days to allow the parties to communicate further with the court on the matter of out of pocket expenses, costs and any claims for interest.

Aaron Stafford was a passenger in a motor vehicle driven by Andrew Carrigy-Ryan on 25 October 2008 when the vehicle ran off the Corin Road and overturned several times. He claimed against Mr Carrigy-Ryan, the first defendant and QBE Insurance (Australia) Limited, the second defendant for loss and damage allegedly suffered as a result of the accident.

The defendants denied liability, claiming that the first defendant owed the plaintiff no duty of care. They admitted that, if there was a duty, it was breached. In the alternative the defendants claimed that there was fault and contributory negligence on the part of the plaintiff. These defences arose out of the fact that blood taken from the first defendant about two hours after the accident returned a reading of 0.155 grams of alcohol per 100 ml of blood.

The defendants relied on ss 47, 95 and 96 of the Civil Law (Wrongs) Act2002 (ACT) to assert that the plaintiff’s contributory negligence was at a level that warranted a finding that his claim was defeated.

BACKGROUND

The plaintiff was 25 years old at the time of the accident and 29 years old at the time of the hearing.

During the course of his childhood, he developed an interest he shared with his father in motor vehicles and their engines. In 2002 and 2003 he obtained Diplomas in motor vehicle engineering at TAFE. In 2005 he commenced an apprenticeship as an auto electrician. After he commenced his training he experienced back pain, the cause of which was diagnosed as Scheurermann’s disease. He accepted medical advice that he should discontinue this career path and his back pain ceased. He maintained, both before and after the accident, his interest in motor vehicles and their engines as a hobby.

The plaintiff suffered from migraine headaches in adolescence, a condition that resolved prior to the accident. He was in good health at the time of the accident.

In 2006 he enrolled in the degree course of Applied Science in Architecture at the University of Canberra. He was in the final semester of his final year of study towards this degree at the time of the accident.

Whilst studying in Canberra the plaintiff obtained part-time work with Fyshwick Building Supplies, a business that supplied hardware and building supplies. He met the first defendant in the course of this employment and they became friends.

Their social interaction included nights drinking at bars and clubs, and barbeques at the first defendant’s house with other friends. The first defendant lived with his girlfriend, Jodie Cochrane, who at the time of the accident was studying to qualify as a primary school teacher.

The plaintiff went to the first defendant’s house often and regularly stayed overnight there. One month prior to the accident the plaintiff went to the first defendant’s house and found that he had attempted suicide by cutting his wrists. The plaintiff took him to hospital for treatment.

At the time of the accident the plaintiff was in the early stages of a relationship with Leticia Tepichin, a resident of Mexico, who was studying in Canberra under a student visa.

Prior to the accident, the plaintiff’s sporting activities included water skiing, snow skiing, golf, exercise, go-kart racing and motor cycle riding. He was particularly proficient in snow skiing to the level of double black diamond ski runs.

THE ACCIDENT

On Friday, 24 October 2008 the plaintiff and the first defendant went together to a trade show at Kingston at the invitation of a supplier to Fyshwick Building Suppliers. They arrived between 5:30 and 6 pm and stayed for about two hours, perhaps longer. The plaintiff drove them to the function in his father’s 2001 Subaru Impreza WRX.

The plaintiff and the first defendant agreed that they were supplied, free of charge, with schooners of full strength of beer. They agreed that they each took turns to obtain the beers as the evening progressed.

They were both unsure of the precise number of beers they consumed. The plaintiff thought they each drank three to four beers at this function. The first defendant thought that they each drank six of them. The plaintiff told police that it was possible that the first defendant drank one more beer than him. The first defendant agreed that the number of drinks consumed could have been as low as four or as high as eight.

The first defendant’s attention was drawn to the statement of facts prepared by police that stated that he had four drinks. There was no evidence to establish that the first defendant was the source of the information contained in the statement of facts and he denied that he had ever seen the document. He was satisfied, however, that his recollection that they drank six beers each was accurate.

After the function they drove to the first defendant’s house. The plaintiff initially said that the first defendant drove the Subaru. He subsequently claimed that he could not remember who drove the car on this part of their journey. He could not explain his absence of memory of this detail. He denied it was because he consumed a substantial quantity of alcohol at this function.

At the first defendant’s house they showered and changed from their work clothing before attending a concert at the University of Canberra. The plaintiff said he drank one beer at the house. He did not remember if he ate food. He remembered that they were at the house for only about half an hour.

The first defendant said they each drank two beers at the house before going to the concert. He said that they had a meal. He said they each drank one beer in Ms Cochrane’s car en route to the concert.

Ms Cochrane was at the house when they arrived. She thought they arrived at about 6:30 pm but agreed that this could have been later. She did not remember if the plaintiff and the first defendant had food before going to the concert but thought that they probably did.

She said that they probably each drank three beers at the house. She said the refrigerator at the house was always well stocked with beer, particularly on a Friday afternoon.

Ms Cochrane did not drink alcohol at all on that evening. She drove the plaintiff and the first defendant to the concert and she drove them home at the end of the evening. She said they each drank one beer, she described as a “roadie”, on the way to the concert.

Recollections of the times of their arrival and departure were vague, but the consensus was that they arrived at the concert about 9 pm. Their estimates of the time spent at the concert varied between two and four hours. Ms Cochrane said the concert finished at 12 midnight and they left after finishing their drinks.

There was disagreement between the plaintiff and the first defendant concerning the amount of alcohol they consumed at the concert. The plaintiff agreed that they initially shared a “shout” while at the concert. He said he drank about three cans of rum and cola. He said he did not know what the first defendant was drinking because he did not stay with him for the whole of the evening. He spent time with other people, listened to the music and danced for a considerable period of the time they were at the concert.

The first defendant said they were in a shout “of sorts”. He estimated that they each had six to eight drinks while at the concert. He did not know what the plaintiff was drinking. He drank full strength beer.

Ms Cochrane said they each had about four drinks and perhaps more. She thought they were both drinking beer but conceded that it was possible that the plaintiff drank rum and cola from a can.

The plaintiff described in detail the path taken to and from the car park and the concert venue. This material indicated that the route was not direct and that it involved the negotiation of some staircases. In addition, the plaintiff said that after leaving the concert Ms Cochrane drove to the building housing his university accommodation. His room was on the third floor of the building. He said he and the first defendant went to the room to collect two 15 kilogram bar bells that the first defendant wished to borrow from him. He said that they negotiated without difficulty the several flights of stairs to and from the room, each carrying one of the bar bells on descent.

The first defendant did not remember going to the plaintiff’s room. He said it was possible that they carried free weights from the room but he did not remember doing so. He did not remember that there were weights at his house in the days after the accident.

He did not recall going to the plaintiff’s room after the concert, but did recall that a six-pack of beer was in the car. He said he believed that he and the plaintiff each drank one beer on the journey back to his house.

Ms Cochrane agreed that she drove to the building in which the plaintiff resided. She did not see them return with the weights. She said she saw no bar bells in the car after they returned or in the boot of the car at any stage. According to Ms Cochrane, they returned with a six pack of beer and they each drank one of these beers on the journey to the first defendant’s home.

All of the witnesses agreed that when they arrived Ms Cochrane went to bed.

The plaintiff said he drank one more beer at the house. He then noticed that the first defendant left the house and was sitting in the driver’s seat of the Subaru. He told the plaintiff that he wanted to go for a drive, he was not feeling well and he wanted to talk about some things.

The plaintiff said he tried to discourage him from driving. He suggested that they walk instead. The first defendant insisted on going for a drive. The plaintiff was concerned for the state of his mental health and decided to go with him.

The first defendant drove first to Lady Denman Drive on Lake Burley Griffin. He parked the car and he and the plaintiff walked across grass to the wall of the Scrivener Dam where they talked. They then returned to the car. The plaintiff denied that they drank more alcohol on this part of the journey.

The first defendant said that he remembered standing on the bridge at Scrivener Dam and that at that time he and the plaintiff were drinking Carlton Draught. His last memory before waking up at the Canberra Hospital was that he dropped an empty beer bottle from the bridge at Scrivener Dam.

The first defendant told the plaintiff he wanted to drive to the Stromlo Lookout which was a short detour on their return journey. They went there and looked at the view from within the car.

The first defendant then said that he wanted to show the plaintiff a recreational area in the Corin Forest. He was proud of some construction work he carried out there. The plaintiff said he told the first defendant he was tired and wanted to go to bed but the first defendant said it was not far and encouraged him to go. This part of the journey lasted for about 45 minutes. On arrival they stayed for a short period only because it was very cold. They then set off on the return journey with the first defendant driving and the plaintiff in the front passenger seat.

The plaintiff said that until this point of time the first defendant’s driving had not concerned him. As they descended from Corin Forest, the road was wet and it was foggy. The first defendant began to drive at a speed with which the plaintiff was not comfortable. The plaintiff said he repeatedly asked the first defendant to slow down. The first defendant said he knew the road well and told him not to worry.

The plaintiff asked the first defendant once more to slow down as he approached a sharp right hand corner, but the first defendant did not do so and he entered the corner at a speed that was too fast. The first defendant’s attempts to brake to slow his speed and enable the car to travel safely around the corner failed. The plaintiff described the following consequence:

The left-hand rear of the car just dropped over the edge of the road into a steep gutter or ditch, and that dragged the rest of the car into the ditch. The front passenger side, left-hand side of the vehicle impacted heavily into the embankment. The car rolled end for end once, and then a couple of times on its side, from the best of my recollection.

The car came to a rest with the driver’s side to the ground and the rear of the car facing the road.

The plaintiff said he exited the car through the broken rear window. He spoke to the first defendant who complained of a sore shoulder. The plaintiff went back into the car and helped him out. He realised that the first defendant needed hospital treatment. At about 2:30 am he telephoned Ms Cochrane who collected them from the site of the accident and took them to the Canberra Hospital.

LIABILITY AND CONTRIBUTORY NEGLIGENCE

The defence raised the issue of whether, in the circumstances in which the accident occurred, the first defendant owed the plaintiff a duty of care. If there was a duty, the first defendant admitted that it was breached and claimed that the plaintiff was guilty of contributory negligence.

These defences required consideration of the common law and required that ss 47, 95 and 96 of the Civil Law (Wrongs) Act be applied. These are:

47 Contributory negligence can defeat claim

In deciding the extent of a reduction of damages because of contributory negligence, a court may decide on a reduction of 100% if the court considers it is just and equitable to do so, with the result that the claim for damages is defeated.

95       Presumption of contributory negligence—injured person intoxicated
(1) Contributory negligence must be presumed if the injured person was intoxicated at the time of the accident and the defendant claims contributory negligence.
(2) The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that—
(a)       the intoxication did not contribute to the accident; or
(b)       the intoxication was not self-induced.
(3) If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person's share in the responsibility for the injury.
96Presumption of contributory negligence—injured person relying on intoxicated person

(1) Contributory negligence must be presumed if—
(a) the injured person—
(i) was at least 16 years old at the time of the accident; and
(ii) relied on the care and skill of a person (A) who was intoxicated at the time of the accident; and

(iii) knew, or ought to have known, that A was intoxicated; and
(b) the accident was caused by A's negligence; and
(c) the defendant claims contributory negligence by the injured person.
(2) The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that—
(a) the intoxication did not contribute to the accident; or
(b) the injured person could not reasonably be expected to have avoided the risk.
(3) If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person's share in the responsibility for the injury.
(4) For this section, a passenger in a motor vehicle is taken to rely on the care and skill of the driver.
(5) The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.

In order to deal with the defences raised it was necessary to decide whether the evidence of the plaintiff concerning the amount of alcohol consumed by him and the first defendant on the evening of 24 October 2008 was to be preferred to that of the first defendant and Ms Cochrane.

The first defendant appeared to have a reasonable recall of the events of the evening up to the point where he and the plaintiff were at the Scrivener Dam. He had no memory of the accident. He confirmed Ms Cochrane’s recollection that he and the plaintiff drank beer on the way to the University concert. His evidence concerning the visit to the plaintiff’s room at the University was inconsistent. He did not remember going there and did not remember taking weights from the plaintiff’s room but he said he did remember taking a six pack of beer. He remembered drinking beer on the return journey.

His explanation for his poor recall of the events of the latter part of the evening was that he was intoxicated.

I accepted that Ms Cochrane had difficulty in recalling some minor details but otherwise she gave her evidence in an open and direct fashion. She described the plaintiff and the first defendant when they returned from the Kingston function as coherent but smelling of beer. After the concert her observation was:

They [the plaintiff and the first defendant] were much more intoxicated by that point of the night. Both were pretty unsteady, much louder than usual and – yes. (Transcript 198.38)

When they arrived at the first defendant’s house:

I was kind of tired. By then they were quite drunk. I was happy for them to continue their own conversations so I went to bed and they went out into the back yard and were having chats.

At the time she collected them from the accident site, they both smelled of beer and from their behaviour it appeared to her that they were still intoxicated.

There was much that plaintiff remembered after the accident but did not remember at the time of the hearing.

Although he told the Australian Federal Police on 10 November 2008 that he limited the amount he drank at the Kingston function because he was driving and although he initially told the court that the first defendant drove from Kingston to his house, he maintained in cross examination that he did not remember which of them drove the Subaru on this part of the journey.

The plaintiff claimed that he did not remember that he told police that the first defendant possibly drank five beers at the Kingston function. He denied that it was likely that he also drank five beers there. He did not remember:

· if he drank beer in Ms Cochrane’s car en route to the concert;

· what drink he bought for the first defendant at the concert;

· anything of what the defendant drank at the concert; or

· whether the first defendant bought a drink for him at the concert, although it appeared that he accepted that they were in a shout during the evening.

He did not remember taking a six pack of beer from his room after the concert or drinking a beer on the return journey to the first defendant’s house. He was very certain, however, of his evidence that they took the weights from the room. He did not remember if he and the first defendant drank more beer when they were at the Scrivener Dam.

The plaintiff’s explanation for this failure of his memory appeared in the transcript as follows:

Mr Stafford, why are you being so evasive with these questions?---I am not being evasive with these questions. I am answering as honestly as I can recall. You will appreciate that some of my memories are a little foggy. Some I remember very clearly and some I only vaguely remember. I do apologise if these aren’t as clear as you would like.

The plaintiff found it equally difficult to recall how the first defendant came to be in possession of the keys to the Subaru and why he did not deny him permission to drive it. He said it was his practice to leave his keys on the key holder at the first defendant’s house but he did not remember if he did that on 24 October 2008. He did not see the keys in the ignition at the time he became aware that the first defendant was in the driver’s seat. He did not go to the driver’s side of the car to remove the keys. He spoke to the first defendant from the passenger side of the vehicle. He was “absolutely positive” that he did not speak to the first defendant about going for a drive and he had a:

… crystal clear recollection of the fact that I did not want to go for a drive. I know I would not have spoken to him about going for a drive.

The plaintiff denied that he discouraged the first defendant from going for a drive because he knew he was well affected by alcohol. His reasons, he said were:

The reason that I didn’t want to go for a drive was that I knew that we had been drinking. I wasn’t aware of the fact that he was over the limit, but I was aware of the fact that we had been drinking, it was late, I was tired, I wanted to sleep and I did not see any good reason for us to go for a drive.

The plaintiff agreed that he told police that his words of discouragement to the first defendant included the fact that they had a few drinks. He maintained, however, that he did not know how intoxicated the first defendant was and he did not believe that he was intoxicated beyond the limit prescribed by the law.

The plaintiff agreed that he voluntarily entered the car as a passenger at all stages of the journey. He remembered that when they were at the Dam, he asked the first defendant to allow him to drive. He said the first defendant refused to give him the keys to the car. He also told police that he tried to get the keys from the first defendant when they were at Corin Forest. He denied these attempts were made because he thought the first defendant was intoxicated beyond the legal limit. His reason was described as follows:

The reason I was trying to get the keys off him, as I recall, Mr Carrigy-Ryan was quite upset, and it was my parents’ car and I felt that it would be more appropriate that I was the one driving.

The plaintiff did agree that he was not comfortable with the first defendant continuing to drive for a number of reasons, one of which related to alcohol.

The plaintiff denied that his memory was affected by his own over consumption of alcohol during the course of the evening of 24 October 2008.

The plaintiff’s memory lapses had three consequences. I was concerned that he appeared to have detailed recall of those parts of the accident history that were self-serving but no recall at all of those parts that might be seen as prejudicial. The failure of his memory provided support for the proposition that he consumed a significant quantity of alcohol. Importantly, without an independent memory, the plaintiff was unable to challenge Ms Cochrane’s evidence of her observations of the condition of the plaintiff and the first defendant before they embarked on their ill-fated journey.

I paid no regard to the first defendant’s evidence concerning the latter stages of the evening. It was clear that his memory of events was affected by the extent to which he consumed alcohol.

Ms Cochrane consumed no alcohol. In contrast to the evasive nature of the plaintiff’s evidence, she was open and direct to the point where I had no reason to reject her recollection of events.

I concluded therefore that her evidence was to be preferred to that of the plaintiff. It established that, after they arrived at the first defendant’s house from the function at Kingston, the plaintiff and the first defendant consumed more alcohol than the plaintiff remembered; that the plaintiff and the first defendant were in a shout at the concert; thus the plaintiff was aware that they were likely to have consumed alcohol in similar quantities; and that they drank more alcohol on the return journey from the concert. Ms Cochrane’s evidence established that by the time they returned from the concert the plaintiff and the first defendant displayed clear signs of intoxication by alcohol.

I proceeded to determine the issues of duty, breach and contributory negligence on the basis of the following findings:

1. At the time the defendant proposed that they go for a drive, the plaintiff and the defendant were intoxicated by alcohol;

2. The plaintiff relied on the care and skill of the defendant;

3. The plaintiff knew or ought to have known that the defendant was intoxicated;

4. The accident was caused by the defendant’s negligence;

5. The plaintiff made no claim that intoxication did not contribute to the accident.

Duty of care – no duty?

In Joslyn v Berryman (2003) 214 CLR 552 at 563, McHugh J said (at 563; [29]):

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.

[emphasis added]

He cited the following from the reasons of Mason CJ, Deane, Gaudron and McHugh JJ in Gala v Preston (1991) 172 CLR 243 at 254:

… each 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.
[emphasis added]

Brennan J in Gala (at 270) said:

The true question must be whether the conduct of the plaintiff as a party to the offence — whether by common purpose, aiding, abetting, encouraging, counselling or procuring — so affects the relationship that no duty of care is owed to him by the defendant. It must be the plaintiff's participation in the offence which might affect the defendant's liability. A defendant does not avoid liability to an innocent plaintiff by showing that the negligence occurred in the course of the defendant's commission of a crime.

In Joslyn, McHugh J went on to question whether, having rejected the doctrine of proximity, the High Court would no longer follow the reasoning in Gala and Cook v Cook (1986) 162 CLR 376. He noted that the premise that a standard of care fluctuated with the sobriety of the driver was difficult for tribunals of fact to deal with but that these decisions, while they stood, were authorities for (at 564; [30]):

…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.
[emphasis added]

The High Court has since reconsidered the decisions in Cook and Gala.

In Imbree v McNeilly (2008) 236 CLR 510, the Court, in declining to follow Cook, dealt with the question of whether the standard of care varied according to the competence of the driver, in this case, an inexperienced driver. Gleeson CJ said (at 515; [7]):

It was not suggested in this case (or in Cook v Cook or in Nettleship v Weston) that the negligence of the driver consisted in undertaking the driving in the first place. There may be circumstances in which a person who takes control of a motor car is so lacking in competence that the act of taking control is itself negligent. Where that would leave an instructor, or supervisor, or other passenger, who directed or permitted the act is not the present problem. According to circumstances, it could mean that there is no duty of care, or voluntary assumption of risk, or a high degree of contributory negligence, or an absence of causation.

Gummow, Hayne and Kiefel JJ said (at 536; [82]):

The conclusion that a defendant owed a plaintiff no duty of care is open in a case like Joyce if, as Latham CJ said, ‘[i]n the case of the drunken driver, all standards of care are ignored [because the] drunken driver cannot even be expected to act sensibly’. And as indicated earlier in these reasons, it is that same idea which would underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver.
[emphasis added; original emphasis omitted]

In Miller v Miller (2011) 242 CLR 446, the High Court reconsidered and maintained the principles established in Gala. The plaintiff in Miller stole a car and allowed the defendant, who was intoxicated, to drive it. She was subsequently injured as a result of his negligent driving. The issue was whether the defendant owed her a duty of care when they were engaged in a joint illegal enterprise. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ summarised the position (at 470-1):

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.

65.Other members of the Court in Gala v Preston (Brennan, Dawson and Toohey JJ) analysed the matter in separate reasons in ways that differed in important respects from the reasoning adopted by the plurality. For Brennan J, the decisive point was that to admit a duty of care would destroy the ‘normative influence’ of the statutory provision which made the illegal use of a vehicle a crime. The destruction of ‘normative influence’ was said to occur where the effect of admitting a duty of care would be to ‘condone’ a breach of the criminal law. But introducing the notion of ‘condonation’ into the debate does not cast light upon the problem. Rather, it is important to observe the way in which Brennan J sought to identify when the admitting of a duty care may ‘condone’ a breach of the criminal law. It was said to depend on the ‘nature of the offence’.

[citations omitted]

The plurality in Miller referred to (at 473; [73]-[74]) a concept of “incongruity” in dealing with the question of why courts should not regulate the activities of wrongdoers by requiring the driver to exercise reasonable care for the safety of other road users and passengers, whether or not the passenger is complicit in the crime. The answer, they said (at 473; [73]), was whether it was:

... 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.

They concluded (at [74]) that careful consideration must be given to the purposes of a statute that has been contravened and that:

It will be by reference to the relevant statute, and identification of its purposes, that any incongruity, contrariety or lack of coherence denying the existence of a duty of care will be found.

These authorities confirm that in appropriate circumstances it may be open to a court to decide that the level of culpability of a plaintiff who travels in a vehicle with a driver whose capacity to drive is impaired by alcohol is such that it would be incongruous to permit that plaintiff to claim that the driver owes her or him a duty of care.

Dixon J in Joyce said that the onus was on the defendant to establish that special facts existed to displace the prima facie duty of care. In the same case, Latham CJ referred to situation where a drunken driver cannot even be expected to act sensibly. McHugh J in Joslyn said there needed to be an extreme case or facts that established special and exceptional circumstances.

It was necessary therefore to decide whether it could fairly be held that the facts and circumstances in this case were so special and exceptional that they were extreme and that it would be incongruous, having regard to legislation that provided that the first defendant, who committed a crime by driving while his capacity to do so was impaired by alcohol, to allow the plaintiff, who knowingly accompanied him, to claim that the first defendant owed the him a duty to drive carefully when he should not have been driving at all.

I concluded that this was not a case where special and exceptional circumstances existed that warranted a finding that the defendant owed the plaintiff no duty of care.

It was not a case where joint illegal conduct was involved. Although the defendant committed the crime of driving when intoxicated, the plaintiff committed no crime in accompanying him. The plaintiff’s uncontested evidence was that he felt obliged to go with the defendant because of his concern that the defendant’s mental health was such that he might commit an act of self harm.

Further, it was clear from the legislation that its purpose is not to deny in all cases the right to damages to passengers who are injured in an accident that occurs when the driver, to the knowledge of the passenger, is intoxicated. The legislation mandates that in such circumstances a level of contributory negligence be assessed but, unless the considerations referred to in s 47 of the Act apply, the passenger remains entitled to recover compensation.

In the absence of extreme or special circumstances, I decided that the first defendant owed the plaintiff a duty of care and that the extent of the plaintiff’s responsibility for the loss damage that he suffered in the accident was to be decided by reference to the principles of contributory negligence.

Contributory negligence

The findings of fact rendered it necessary that the plaintiff’s damages be reduced to take account of his contributory negligence.

For the reasons already expressed, I was not persuaded that this was a case where the plaintiff’s contributory negligence should be assessed at 100%.

I did not accept the plaintiff’s claim that he was unaware that the defendant’s capacity to drive was impaired by alcohol. By the time the decision to go for a drive was made, the plaintiff was well aware that the first defendant had been drinking alcohol over an extended period.

The defendants argued that I should reject the claim that the first defendant was upset or troubled. While Ms Cochrane noticed nothing to indicate that he was troubled, the plaintiff’s evidence of the conversation that took place at Scrivener Dam was not denied by the first defendant who said that he remembered the events of the evening to that point. I therefore accepted the plaintiff’s evidence that the first defendant disclosed his personal problems in the course of this conversation.

I did not however consider that the plaintiff’s concern for the first defendant’s mental health put him in a position where he could not reasonably have avoided the risk he faced as a passenger in the car driven by the intoxicated first defendant. There were alternatives available to the plaintiff. I did not accept that he could not have done more to prevent the first defendant from driving the vehicle.

In addition I did not accept that the plaintiff withdrew from the “enterprise” in which he and the first defendant were engaged at the time of the accident. He was content to remain as a passenger in the car driven by the first defendant for so long as he considered that he was exercising care and skill. The precise purpose of discouraging intoxicated persons from driving is that they cannot be relied upon to exercise the judgement necessary to ensure the safety of themselves, passengers or other road users. The plaintiff could not avoid responsibility by voluntarily placing himself in a situation of risk and claiming to have withdrawn from that situation at the point when the risk eventuated.

In ordinary circumstances, I would have held each of the plaintiff and the first defendant equally responsible for the plaintiff’s loss and damage. They were equally aware of the extent to which alcohol had been consumed and equally aware of the risk they were undertaking.

In this case, however, there was the added element that it was the first defendant who initiated the proposal to drive the Subaru. The plaintiff acted in response to the first defendant’s request when he was under the apprehension, in my view genuine but misplaced, that he should support his friend. I accepted that this mitigated the extent to which he should be held responsible.

I assessed the plaintiff’s contributory negligence at 35%.

INJURY

The plaintiff claimed extensive injury and disability as a result of the accident. His statement of particulars listed a head injury with short term amnesia, brain injury, post concussion syndrome, injuries to his neck and cervical spine, right shoulder, left shoulder and arm, lacerations and abrasions and psychological injury.

As a result of these injuries he claimed, in addition to general damages, diminution in his earning capacity and the need for past and future domestic assistance and medical care.

The plaintiff said that the left side of his body was thrown against the passenger side of the Subaru as it impacted with the embankment. He was lifted in and out of his seat repetitively as the car rolled with his head tucking into the roof of the car.

At the Canberra Hospital he was examined and discharged within hours. The triage notes recorded that he complained of left arm pain and multiple small lacerations to both arms. The notes recorded that there was no loss of consciousness. The registrar recorded that the plaintiff denied any neck or head pain. Examination, including examination of the cervical spine, revealed no injuries except for superficial abrasions to the right forearm.

Ms Cochrane drove the plaintiff to the defendant’s house where he changed and went to work at Fyshwick Building Suppliers, starting at around 7:30 am. He worked there until midday. He then went skydiving, as planned, at 3 pm. This was an event to celebrate the first defendant’s birthday. In the evening, he attended the first defendant’s birthday party, a gathering of 20 to 30 friends at which he and the first defendant consumed alcohol.

Thus, the first impression was that the plaintiff’s injuries resulting from the accident were minor. The plaintiff’s case was that this was an optimistic outlook.

He said that on 26 October 2008 he experienced feelings of lack of co-ordination and balance. His parents visited him two to three days later and he decided to return with them to the family home near Tathra. He was unable to complete the final year of his architecture studies.

On 29 October 2008 he consulted his general practitioner, Dr Nick Theris, at Tathra. He complained at that time of throbbing headaches, frustration with his symptoms and difficulty sleeping and concentrating.

Dr Theris reported that at this initial consultation the plaintiff told him that a head injury was diagnosed at the Canberra Hospital with suspected loss of consciousness and amnesia, limited to the immediate post accident period. No such diagnosis appeared in the hospital notes. Dr Theris ordered a cerebral CT scan that returned a normal result. He diagnosed past traumatic headache/migraine and prescribed medication. Dr Theris withdrew the plaintiff’s driving licence.

The plaintiff said that about three weeks after the accident he started to experience neck pain. Dr Theris recorded that the plaintiff complained of a two week history of neck pain on 3 February 2009. This would suggest the neck pain commenced in early January 2009 or more than two months after the accident. When Dr Theris examined the plaintiff in early February 2009, he noted a full range of neck movement with pain located in the lower cervical spine. Dr Theris prescribed anti-inflammatory medication and referred the plaintiff for physiotherapy and for review by Dr Colin Andrews, neurologist.

Dr Andrews, on 16 February 2009, noted the plaintiff’s complaint of chronic headache and symptoms that were suggestive of post traumatic migraine. He prescribed medication that he said the plaintiff should have for a minimum of three months. He recommended that the plaintiff rest and not resume studies or normal activity until the headaches resolved. Dr Andrews did not expect any long term sequelae as a result of the injury.

On 2 February 2009, Ms Julia Godresse, psychologist, certified that the plaintiff was unfit to resume his studies before the second semester of 2009. She reported in June 2009, after five consultations with the plaintiff, that there was improvement by April 2009 in his mood and level of anxiety, and that he could resume his studies. She did not propose further counselling.

In February 2009 Dr Theris referred the plaintiff to the Southern Area Brain Injury Service. He was admitted as an in-patient on two occasions. The first was between 16 and 20 February 2009 when he was assessed by Ms Emily Marchese, occupational therapist, Dr Jeremy Christley, consultant physician, and Dr Jim Huntley, senior psychologist.

Ms Marchese reported on 23 February 2009 that the plaintiff performed without deficit in functional cognitive screening although he complained of a headache at the conclusion of the assessment. He completed the functional activities without difficulty and completed activities of daily living independently. Ms Marchese observed the plaintiff performing activities involved in domestic and personal care, communication, shopping, road safety, sleep, rest and leisure. She said the plaintiff required assistance that was minimal with pain management, structuring his day and organising and attending appointments.

Dr Christley reviewed the plaintiff on 19 February 2009. At that stage his symptoms were of constant headache of fluctuating severity, fatigue, sleep disturbance, irritability and frustration. He was tender in the cervical and temporal musculature. His headaches and fatigue were eased by rest.

Dr Christley formed the opinion that the plaintiff suffered a mild traumatic brain injury complicated by a post concussion syndrome. He thought the headaches were related to the condition of his neck. He suggested that the plaintiff deal with his significant fatigue by pacing his activities and recommended neuropsychological assessment. He reassured the plaintiff that post concussion syndrome normally resolved within six months. Dr Christley authorised the return of the plaintiff’s driving licence.

Upon his discharge from the brain injury unit, the plaintiff returned to his parents’ home. He continued with symptoms of fatigue and lethargy. He said he slept for 15 hours, spending most of the day in bed and feeling exhausted on waking.

The plaintiff was re-admitted to the brain injury unit between 30 March and 3 April 2009. Dr Huntley undertook neuropsychological testing. He reported that the plaintiff performed well on cognitive testing, with scores in the superior or above average range in many areas, including memory and executive function. The areas of contextual visual reasoning and switching between two or more tasks were mildly affected. Dr Huntley described these as subtle impacts or mild changes that should improve over time. He concluded that the plaintiff recovered very well from a potentially serious accident.

The plaintiff returned to his architectural studies in the second semester of 2009 and completed the outstanding requirements for his degree. By arrangement with the University, most of this work was completed at his parents’ home where he continued to live. The plaintiff’s father drove the plaintiff to Canberra on the few occasions when it was necessary to attend the University for lectures.

The plaintiff said he completed his studies with difficulty because he continued to suffer from severe neck pain, lack of co-ordination and poor concentration. There was some improvement in his headaches but he continued to suffer from them.

On 10 September 2009 an MRI of the plaintiff’s cervical spine demonstrated a focal disc protrusion at C3/4.

In September 2009 the plaintiff transferred to Dr Catriona Arnold-Nott, general practitioner, because he did not feel that he was progressing under the care of Dr Theris. Dr Arnold-Nott referred him to Dr Justin Pik, neurosurgeon, for an opinion concerning his continued neck pain and ongoing headaches that, she said, were separate from his neck pain.

Dr Pik examined the plaintiff on 9 November 2009. He reported to Dr Arnold-Nott that the X-rays of the plaintiff’s cervical spine showed no evidence of fracture or dislocation and that the MRI showed a very mild right sided C3/4 disc bulge without evidence of spinal cord or nerve root impingement. Dr Pik concluded that the plaintiff displayed symptoms of mechanical neck pain. He encouraged the plaintiff to return to normal activity and use any non-surgical therapy he found helpful.

In October 2009, the plaintiff returned to Canberra and took up an appointment with Dowse Norwood Architects, as a casual student architect.

Ms Melissa Vincent, physiotherapist, reported in December 2009 that the plaintiff had no difficulty completing his hours and duties in that employment.

Dr Arnold-Nott referred the plaintiff to Dr Geoffrey Speldewinde, rehabilitation practitioner. His report of 24 November 2009 contrasted distinctly with Dr Pik’s reported findings on 9 November 2009 that the plaintiff had a good range of passive and active neck movements without pain and that sensory examination to light touch was normal. Dr Speldewinde reported reduced ranges of neck movement, with a particularly dramatic reduction in neck extension. He reported mild paravertebral tenderness in the cervical and cervico-thoracic areas. His diagnosis was of:

Severe bilateral cervicogenic headaches with bilateral C5/6 segmental dysfunction with a suggestion on the right of a C5 or C6 spinal nerve contusion with a sharp, stabbing pain radiating postero-laterally down the right arm to the elbow, and a pinching pain in the left C5/6 segment.

Dr Speldewinde set out a number of management options that included neck strengthening exercise, pain management counselling, medication and fine needle diagnostic cervical joint injections.

There was no further report from Dr Speldewinde concerning the outcome of his treatment but other materials indicated that three diagnostic injections were provided, the last of which aggravated the plaintiff’s condition. He referred the plaintiff to Dr Randolph Sparks, psychologist. The plaintiff said the treatment was helpful but there was no report from Dr Sparks.

Dr Speldewinde also referred the plaintiff to Ms Kirra Rankin, exercise physiologist. Ms Rankin treated the plaintiff between February and May 2010. Her report of 21 May 2010 recommended ten further rehabilitation sessions but it was unclear whether further treatment was provided. Ms Rankin reported that the treatment that she provided up to May 2010 resulted in significant improvements in ranges of movement, cervical spine strength and pain levels. There remained some restrictions and complaints of pain.

The plaintiff maintained contact with Ms Tepichin after she returned to Mexico. In late 2009 between Christmas and New Year, he travelled to Mexico City to visit her and her family. The journey involved a lengthy flight in three stages that the plaintiff found exhausting and it severely aggravated his neck pain and headaches. He described some difficulty in managing sight seeing activities while in Mexico. He said his libido was reduced because of his pain. The return journey was also painful and exhausting.

On his return the plaintiff continued to work with Dowse Norwood Architects. It appeared from Ms Tepichin’s evidence that she travelled to Australia shortly after the plaintiff returned from Mexico. She studied in Sydney and she and the plaintiff maintained their relationship through weekend contact in Sydney or in Canberra. Ms Tepichin said that the majority of the time she travelled to Canberra because the plaintiff suffered discomfort when travelling to Sydney.

In November 2010, Dr Roslyn Mozer of the Southern Area Brain Injury Service reviewed the plaintiff. She noted that he was working at least 40 hours per week, having completed his degree, his headaches were improving and his neck pain was better although both continued. He was receiving chiropractic treatment that was of assistance and his mood, memory and concentration were improved except when he was fatigued. He was independent in all self-care but at times he was too exhausted to clean and cook. Dr Mozer noted the plaintiff’s complaint of diminished libido. She suggested that he and his partner undertake counselling. There was no evidence that they did so.

Dr Mozer noted that the plaintiff was to be followed up in six months, earlier if necessary. There was no evidence that any further follow up was undertaken.

The chiropractor referred to was Mr Jason Barritt. He treated the plaintiff between July 2010 and November 2011. The plaintiff described this treatment as very effective and said it provided significant improvement in his condition.

In January 2011 the plaintiff established a business as a draftsman, registering the name “AS Design” for this purpose.

In March 2011 the plaintiff returned to study towards a masters degree in architecture. He said this further degree was a precondition to registration to practice in Australia as an architect. He completed the first semester of the course but was unable to continue because he was unable to manage full time employment and study.

In October 2011 the plaintiff travelled again to Mexico where he stayed for six weeks. He said he coped better on this occasion with travel and sight seeing activity but nevertheless he suffered some aggravation of his condition.

Mr Barritt provided three very lengthy reports dated November 2010, March 2011 and February 2013. In all they extended over 183 pages. They dealt in great detail with his multiple consultations with the plaintiff and contained reference to symptoms and restrictions of which the plaintiff made no mention in evidence. Aside from the fact that he claimed that his treatment had significantly improved the plaintiff’s condition, I found his reports to be of little assistance.

In November 2011 the plaintiff resigned from his position with Dowse Norwood. He and Ms Tepichin moved to Tathra to live at his parents’ home. The plaintiff worked during that period for Stafford Building Supplies. In September 2012 they moved to Melbourne where they continued to reside at the time of the hearing.

Medico-legal reports

Dr William Knox, psychiatrist, examined the plaintiff in May 2011. He diagnosed a post concussion syndrome and mild neurocognitive disorder. He said there was no gross physical or psychological abnormality and no evidence of any depression or anxiety condition. He thought there was a secondary attention deficit type of disorder. He referred the plaintiff to a Canberra psychiatrist for assessment and treatment. There was no evidence that this referral was acted upon. Dr Knox said the plaintiff was not fit to combine work and study. He thought it likely that the plaintiff’s condition would improve gradually but not completely over a period of years.

Dr Graeme Griffith, orthopaedic surgeon, examined the plaintiff in March 2012. Dr Griffith said that it was counter-intuitive and factually incorrect to suggest that there was no significant post concussion brain damage. This was because migraine sufferers did not suffer from the global mental dysfunction as was described by the plaintiff. He agreed, however, with Dr Reid’s conclusion that the plaintiff made an excellent neurocognitive recovery with no significant difficulties from that perspective affecting his work as an architect. He said this diagnosis, two years after the accident, was not surprising when the more florid symptoms had abated with treatment. Dr Griffith appeared to be unaware that Dr Huntley’s testing produced very similar results in March 2009, six months after the accident.

Dr Griffith did not make clear which of the conditions he diagnosed were resolved and which were continuing. I noted his reference to a focal disc protrusion at C5/6 of which there was no evidence. He said the plaintiff’s problems with mental function were largely resolved and the post concussion syndrome was gradually resolving to the point where, at the time of his examination, the plaintiff was able to return to the workforce.

He diagnosed a chronic adjustment syndrome. No other expert, treating or medico-legal who was qualified in psychology or psychiatry, diagnosed this condition and I therefore rejected this part of his opinion. He also diagnosed a chronic neuropathic pain state that again was unsupported by any treating or medico-legal diagnosis, and which I also rejected.

Dr Griffith expected further improvement in the plaintiff’s condition.

Dr Andrews was asked to comment on the opinions of Dr Pik, Dr Speldewinde and Dr Griffith. In his report of 5 February 2013 he disagreed with Dr Speldewinde and Dr Griffith. He said the bulge at C3/4 was minor and unlikely to be the cause of the plaintiff’s symptoms. He said there was nothing on the MRI scan to indicate problems at C6. There was “definitely no significant neural involvement of the cervical spinal cord or nerve roots.” He accepted the diagnosis of soft tissue injury, for which, he said, there was a good prognosis with residual disability in the nature of some ongoing neck pain requiring conservative treatment. He said the plaintiff was fit to study for his masters degree full time and that his mild traumatic head injury should have long since resolved. The C3/4 disc protrusion was like to degenerate but it might be a long time before it was productive of significant symptoms.

Dr Wayne Reid, consultant neuropsychologist, first examined the plaintiff in October 2010. He said a brief period of loss of consciousness without significant post traumatic amnesia were criteria that conventionally indicated head injury in the very mild range of severity. After testing the plaintiff, he reported that he made an excellent recovery with no significant problems with his work as a junior architect and that his prognosis was good. There were no cognitive problems except for some problems with concentration. There was slight weakness in retrieval of words from memory on testing verbal fluency and in the plaintiff’s general fund of information. He thought these weaknesses were unlikely to be related to the plaintiff’s brain injury. The results otherwise indicated that the plaintiff was of above average intellectual ability with no impairment in intellectual function and no deficits in memory or high level frontal executive functioning. Pyschologically, the plaintiff continued to experience depression that was not at a clinically significant level. He displayed a mild but significant degree of somatic over-concern that again was not of sufficient clinical significance to warrant a diagnosis of somatoform disorder.

When he examined the plaintiff in January 2013, Dr Reid reported that the plaintiff had improved slowly but progressively and that he was still experiencing some pain and intermittent headaches. He noted that the plaintiff said he was more alert and that he functioned better since he ceased taking Lyrica. Further testing showed no deterioration in intellectual function, which was still above average. There was no evidence of impairment, except in the speed in flexibility of thinking that Dr Reid suggested arose from the stress and anxiety of being timed. Dr Reid maintained his opinion that the plaintiff suffered a mild traumatic brain injury from which he made a good recovery, there was no evidence of disability or injury sufficient to impair his intellectual or cognitive functioning, and there was no consequence to the plaintiff’s social or leisure activities or to his capacity to work or complete his masters degree. No further treatment was required.

Dr Reid was satisfied that the plaintiff was open and honest in completing the tests he provided. He said there was no evidence that the plaintiff exaggerated his condition or that he underperformed. He accepted therefore the plaintiff’s report of minor symptoms affecting memory retrieval, concentration and focus on the task at hand, episodes of depression and some increase in irritability.

Dr David McGrath, specialist physician, examined the plaintiff in October 2010, when he noted the plaintiff’s complaints of symptoms that were worse in cold or wet weather. Dr McGrath identified a structural fault towards the base of the plaintiff’s skull but said that the plaintiff was able to demonstrate full painless movement of his neck. He identified a second structural fault in the upper part of the plaintiff’s spine. He noted that no treatment provided appeared to make any measurable difference to the plaintiff’s symptoms. He doubted the efficacy of the chiropractic treatment. He agreed with Dr Andrews that it was unlikely that the plaintiff suffered significant concussion or brain damage.

Dr McGrath examined the plaintiff a second time in January 2013. He said the plaintiff’s condition was slowly improving and that there had been no deterioration in his condition although he had no treatment since moving to Melbourne in September 2012. The plaintiff described a pattern of pain that was consistent with his symptoms of 2010 with reduced intensity and frequency. He noted that the plaintiff had returned to his usual activities without restriction.

Dr McGrath said the multiple physiotherapy and chiropractic treatments that the plaintiff received were inappropriate and unsuccessful. He disagreed with the intervention with spinal injections undertaken by Dr Speldewinde. He maintained that the biomechanical defects that he identified would produce some symptoms until they were corrected. He suggested that correction could be obtained if the plaintiff undertook a painless spinal exercise routine.

He disagreed with his diagnosis of a chronic neuropathic state. He said the plaintiff’s discontinuance of the nerve tablet Lyrica without deterioration in his symptoms provided definite evidence against any neuropathic state.

Dr McGrath agreed that a disc protrusion at C3/4 was consistent with the circumstances of the accident. He also said that small protrusions in the neck were a common occurrence and he would not accept more than that it was possible the protrusion noted in the plaintiff’s cervical spine was the result of trauma that occurred in the accident.

He accepted that the plaintiff was honest in his presentation and that he did not exaggerate or attempt to mislead him. He agreed that the biomechanical defect was capable of producing the symptoms described by the plaintiff but said it was not clear that this defect was ever produced by the accident.

ASSESSMENT

General damages

The brain injury

Medical opinion accepted that the plaintiff suffered a mild traumatic brain injury and post concussion syndrome that, for a period, caused his headaches.

The plaintiff claimed the brain injury caused continuing consequences to his personality, through fatigue and emotions of anger and volatility of mood. He pointed to the evidence of his parents and Ms Tepichin concerning these claimed changes in personality.

Medical opinion did not support the plaintiff’s claims of brain injury sufficient to result in ongoing disability.

Testing by Ms Marchese in February 2009 established that by that date, there was no deficit in the plaintiff’s functional capacity. The plaintiff undertook neuropsychological testing on three occasions. In March 2009, Dr Huntley reported minimal effects on testing. In his opinion the plaintiff would improve with time. Dr Reid tested the plaintiff in October 2010 and January 2013. The improvement anticipated by Dr Huntley appeared to have occurred and in Dr Reid’s opinion there were very mild deficits that were unlikely to be related to brain injury.

Dr Christley in February 2009 recommended that the plaintiff pace his activities and rest to allow for recovery. The plaintiff adopted this recommendation and by mid 2009 he was able to return to his studies and complete his undergraduate degree. By this stage the symptoms of which he complained appeared to be related to the claimed neck injury.

Only Dr Knox suggested there were ongoing consequences of the brain injury. He acknowledged that he performed no testing before forming his opinion. In the light of the uniformity of the test results obtained by Dr Huntley and Dr Reid, I preferred their conclusions that the very minor deficits elicited on testing were not accident related and did not prevent the plaintiff from returning to work as an architect or to usual activity.

In relation to the claimed brain injury, therefore, I find that the plaintiff suffered a mild traumatic brain injury the symptoms of which had substantially abated by mid 2009.

The neck injury

This part of the plaintiff’s claim resulted in differences in medical opinion concerning diagnosis and whether the injury, if any, was the result of the accident.

The neurologists, Dr Andrews and Dr Pik, agreed that the plaintiff’s symptoms were not the result of neural involvement of the cervical spinal cord or nerve roots. Dr McGrath pointed out that these opinions were confirmed when the plaintiff suffered no change in the level of his symptoms after ceasing his reliance on Lyrica.

No medical expert, treating or medico-legal, indicated that the plaintiff was not genuine in his complaints of neck symptoms. I accepted that these symptoms were the cause of the plaintiff’s symptoms of fatigue of volatility of mood. In the absence of injury causing sexual dysfunction, I accepted that the sexual difficulties of which the plaintiff complained were the result of the symptoms and fatigue resulting from the condition affecting the plaintiff’s neck.

Medical opinion suggested two causes for the plaintiff’s symptoms: soft tissue injury or the biomechanical defect identified by Dr McGrath.

The reports of those treating the plaintiff referred to continuing improvement in his condition. They included:

· Ms Vincent, who reported in December 2009 that he was working as a junior architect without difficulty;

· Ms Rankin, who reported in October 2010 that the plaintiff was significantly improved; and

· Dr Mozer in November 2010 and Mr Barritt up to November 2011 who both reported ongoing improvement.

The plaintiff has not sought treatment since he and Ms Tepichin moved to Melbourne in September 2012, aside from two treatments from Mr Barritt in early 2013 when he came to Canberra for other purposes.

This evidence suggested that the plaintiff continued to suffer from mild residual symptoms and that he held prospects of further improvement in his condition.

Dr McGrath accepted that the plaintiff’s condition in his neck and thoracic spine could account for some of his symptoms. He said their relationship to the accident was questionable and that the neck and shoulder pains probably did not relate to the accident because of the delay in the onset of symptoms.

Dr McGrath said a delay of one to two months in reporting symptoms of neck injury was “extraordinary” and that he had never seen a delay of this period documented. His experience was that symptoms manifested at the time of the injury or, at the latest, within 24 to 48 hours of injury. Nevertheless the plaintiff had recovered to the point where he was fully fit for work and for all his pre-injury activities.

Dr Griffith disagreed with Dr McGrath that the delayed onset in symptoms in the plaintiff’s neck indicated that they were unrelated to the accident. He said the immediate result of the accident was that the plaintiff suffered from a concussion syndrome that might have affected his comprehension of the temporal relationship between his symptoms and the accident. Dr Griffith thought the nature of the accident was consistent with very significant soft tissue injury to the plaintiff’s cervical spine.

Mr Barritt also disagreed with Dr McGrath concerning the delayed onset of symptoms in the plaintiff’s neck. He referred extensively to published papers that he said supported his opinion that the accident was the cause of the symptoms of which the plaintiff complained.

Mr Barritt was not medically qualified. The papers to which he referred were not made available to the court and therefore the qualifications of the persons expressing the opinions he relied upon were unknown. I therefore preferred the opinions of experienced practitioners with appropriate qualifications.

Dr McGrath suggested that the plaintiff’s symptoms were generated by the biomechanical defect that he identified. Dr Pik also referred to the likelihood of a mechanical defect as the source of the plaintiff’s symptoms. This diagnosis did not explain why the plaintiff did not suffer from symptoms of neck pain prior to the accident, when, according to the plaintiff and his parents, his activities included waterskiing, snow skiing, motor cycling and go-kart racing.

Dr Griffith’s opinion suggested that, in ordinary circumstances, he, like Dr McGrath, expected that the complaint of symptoms would follow immediately after, or within a short time after, an accident causing neck injury. There was logic in Dr Griffith’s proposition that there might be circumstances where a brain damaged person would fail to report symptoms of physical injury. I did not accept that those circumstances arose in this case. The evidence established that the plaintiff’s brain injury was mild. He was not prevented by the brain injury or the post concussion injury from working in the family business, Stafford Building Supplies, during December 2008 and January 2009 for up to 36 hours per week, a period during which no complaint of neck pain was recorded.

The result was that there was more than one cause for the symptoms affecting the plaintiff’s cervical spine. They included a soft tissue injury suffered in the accident, a biomechanical defect or some other undiagnosed strain or injury. The evidence pointed to these causes as possibilities only and I was unable to reach a firm conclusion on the precise cause of the plaintiff’s symptoms. I accepted the medical opinion that the delay in the development of symptoms was such that it was improbable that they were the result of injury suffered in the accident. I therefore rejected this part of the plaintiff’s claim.

I assessed the plaintiff’s general damages on the basis that he suffered a mild brain injury and post concussion syndrome from which he made a substantial recovery within 12 months of the accident and a total recovery by the date of the hearing. I awarded $40,000 for general damages.

Loss of income earning capacity

As already noted, the plaintiff worked in the family business in December 2008 and January 2009.

After completing his degree he obtained employment as a casual student architect with Dowse Norwood from October 2009 until November 2011. All reports suggested that he coped with this employment although at times long hours were involved.

He left this work to live with Ms Tepichin at his parents’ home in Tathra before moving to Melbourne in September 2012. It was not suggested that he resigned his employment with Dowse Norwood because he had difficulty in performing his duties.

By this stage the plaintiff had also established his own drafting service. He claimed that his income from this business was minimal.

While living with his parents, he worked in the family business. His duties included sales, deliveries and the manufacture and installation of windows and security doors.

After moving to Melbourne, the plaintiff obtained a position as a timber floor salesman. Initially he worked full time, undertaking the duties of an employee on temporary leave. His hours were reduced to 3.5 days per week on the return to duties of that employee.

This reduction in hours was accepted by the plaintiff as necessary to enable him to complete the preparation of a portfolio that was required to gain entry to the masters degree course offered at Melbourne University. The plaintiff agreed that he could have undertaken his masters degree at the University of Canberra, where he successfully completed one semester of the course in 2011. He said he chose to continue with the degree at Melbourne University because of the greater prestige it offered and because there were better career opportunities for Ms Tepichin in Melbourne.

The plaintiff’s parents and Ms Tepichin confirmed the plaintiff’s career aspirations to complete his masters degree and secure registration as an architect in Australia.

The plaintiff’s claim for past income loss was based on the difference between the income he received to the date of the hearing and that which he might have earned had he taken up an offer of employment as an architect in Dubai, completed his masters degree and registered as a fully qualified architect in January 2011.

There were some difficulties with this claim.

The value of the offer of work in Dubai was unclear. The letter of offer indicated that the income proposed was tax free but the plaintiff was required to meet the expenses of his airfare, accommodation and other living costs. The plaintiff claimed that the architect who made this offer also proposed to assist him in meeting these expenses although it was clear from the emailed offer that the value of the assistance he proposed to provide was to be offset against a debt that he owed to the plaintiff’s father or to Stafford Building Supplies.

In addition, there was no evidence that the offer was withdrawn or no longer available when the plaintiff graduated one year later than originally anticipated.

The plaintiff made no allowance in the amount claimed for past loss of income for the reduction in his income earning capacity if he had continued his studies towards a masters degree. The evidence of the plaintiff was that the work involved in studying for the degree required a significant commitment that limited the time available for income earning activity. Nor did he allow for the delay in completing a masters degree that would have resulted from his period of employment in Dubai.

I determined the claim for past income loss on the basis that the injuries suffered by the plaintiff delayed the completion of his undergraduate degree by one year and I allowed his loss of income during this year from October 2008 to October 2009, at the rate at which he was paid when he joined Dowse Norwood in 2009. I adopted the amount claimed in the statement of particulars of $30,080.33. From this sum I deducted $9,758.40 which I calculated to be the amount earned by the plaintiff from his employment by Stafford Building Supplies during this 12 month period so that the sum allowed was $20,321.93.

I also allowed a modest buffer of $15,000 to compensate for the compounding effect of a 12 month delay in completing the masters degree.

The total allowed for past income loss was therefore $35,321.93. Superannuation on this loss was allowed at 9% in the sum of $3,179.

The basis for the plaintiff’s claim for future income loss was difficult to comprehend. He claimed $126 per week, being the difference in the income of a timber flooring salesman and that of an architect. However, the plaintiff and his family all stated that he was intent on completing his masters degree for the purpose of obtaining registration as an architect and working in that profession.

I therefore considered that there was no basis for the claim that the plaintiff continued to suffer any loss of income earning capacity.

Domestic care

I accepted that the plaintiff required some assistance during the period of his recovery from the brain injury and the post concussion syndrome. I did not accept that he required assistance to the extent described by Mrs Stafford who appeared to have overlooked the fact that by December 2008 the plaintiff recovered to the point where he was able to work, at times for a full working week, for Stafford Building Supplies in tasks that involved significant physical activity.

I noted that for the first half of 2009 the plaintiff’s rehabilitation required that he rest and that therefore he required a moderate level of domestic assistance.

Doing the best I could with the unsatisfactory nature of the evidence concerning the plaintiff’s precise needs, I allowed an average of four hours per week of assistance at the rate of $20 per hour for 52 weeks, that is, until October 2009. It was clear that by October 2009, when the plaintiff returned to Canberra that he no longer required assistance with domestic care as a result of the brain injury.

The amount allowed was $4,160.

Out of pocket expenses

The claim for out of pocket expenses was problematic both because of the way in which the claim was presented and because of my determination that it had not been established that the plaintiff suffered an injury to his cervical spine in the accident.

Consistent with this determination, the amount allowed for medical expenses must be limited to those that related to treatment for the brain injury and post concussion syndrome.

It was not possible from the materials provided to calculate this amount. It will be necessary therefore for the parties to reconsider this aspect of the claim and, if possible, to agree on the amount to be allowed.

If agreement cannot be reached, the parties are to provide written submissions in support of the amount they claim should be allowed.

Within 28 days of publication of these reasons, the parties are to advise the court in writing of any agreement reached or, in the absence of agreement, they are to provide their written submissions.

There was no basis for an allowance for future out of pocket expenses.

ORDERS

The proceedings are adjourned for 28 days to allow the parties to communicate further with the court on the matter of out of pocket expenses, costs and any claims for interest.

I certify that the preceding one hundred and ninty-six (196) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate:
Date: 2013

Counsel for the plaintiff:  Mr G Stretton SC
Solicitor for the plaintiff:  Colquhoun Murphy Solicitors
Counsel for the first & second defendants:    Mr P J Nolan
Solicitor for the first & second defendants:   Moray & Agnew Solicitors
Date of hearing:  25-8 March 2013
Date of judgment:   4 July 2013

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Citations

Aaron Lot Stafford v Andrew Carrigy-Ryan and QBE Insurance (Australia) Ltd (ACN 003 191 035) [2013] ACTSC 99

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

1

Joslyn v Berryman [2003] HCA 34

San Sebastian Pty Ltd v The Minister [1986] HCA 68