Bevan v Coolahan

[2018] NSWDC 410

District Court

New South Wales

Medium Neutral Citation:	Bevan v Coolahan [2018] NSWDC 410
Hearing dates:	5, 6, 7 and 10 October 2016; 27, 28, 29 and 30 November 2017; 1, 4 and 5 December 2017; 6 March 2018; 18 and 24 April 2018; 2 May 2018 (written submissions)
Date of orders:	31 August 2018
Decision date:	31 August 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendants. (2) Plaintiff pay defendants’ costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT – motor vehicle accident – plaintiff’s injuries as a passenger suffered while travelling for the purpose of buying and injecting drugs prohibited under s 10 Drug Misuse and Trafficking Act 1985 (NSW) – whether the plaintiff was, in terms of the common law defence of joint illegal enterprise, a party to any criminal conduct – impact of failure to plead s 54 Civil Liability Act 2002 (NSW) – contributory negligence – judgment for the defendant
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3A, 3B, 5R, 5S, 54 and Part IA, Div 8 Civil Procedure Act 2005 (NSW), ss 14 and 56 Criminal Code (WA), s 8 Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 11, 12, 19 and 25 Evidence Act 1995 (NSW), ss 41, 128 and 135 Motor Accidents Compensation Act 1999 (NSW), s 138 Road Transport Act 2013 (NSW), ss 111 and 112 Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 31.10 and 31.28
Cases Cited:	ACCC v Air New Zealand Ltd (No 5) (2012) 301 ALR 352 Australian Postal Commission v Hayes (1989) 23 FCR 320 BHP Pty Co Ltd v Mason (1996) 67 SASR 456 Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (No 1) [2017] NSWSC 1371 Captain v Wosomo [2017] 1 Qd R 222 Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 3) [2017] FCA 60 Cook v Cook (1986) 162 CLR 376 Crescent Funds Management (Aust) Ltd v Crescent Capital Partners Management Pty Ltd [2017] FCAFC 2 Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Ltd (2015) 326 ALR 556 Foong v Ghaly [2017] NSWDC 303 Gala v Preston (1991) 172 CLR 243 Ghunaim v Bart [2004] NSWCA 28 Glover v Australian Ultra Concrete Floors [2003] NSWCA 80 Godbolt v Fittock (1963) 63 SR (NSW) 617 Goodsell v Murphy (2002) 36 MVR 408 Hall v Van der Poel [2009] NSWCA 436 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 Harrison v Melhem (2008) 72 NSWLR 380 Holland v Tarlinton (New South Wales Court of Appeal, 18 December 1989, Kirby P, Meagher JA, Hope A-JA) Hunter v Transport Accident Commission 2005 VSCA 1 Ingot Capital Investments Pty Ltd v Macquarie Capital Markets Limited [2004] NSWSC 40 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206 Jackson v Harrison (1978) 138 CLR 438 Jones v Bradley [2003] NSWCA 81 Jones v Dunkel (1959) 101 CLR 298 Kingham v Cole (2002) 76 ALD 389 Latimer v Day [2015] NSWSC 11 Let’s Go Adventures Pty Ltd v Barrett [2018] NSWCA 243 Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 McCracken v Smith [2013] EWHC 3620 QB McGuinness v Kellog Co of GB Ltd [1988] 2 All ER 902 McPherson v Whitfield [1996] 1 Qd R 474 Merhi v Ford Motor Company of Australia Ltd [2014] VSCA 328 Miller v Galderisi [2009] NSWCA 353 Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 Mundy v GIO of New South Wales (Supreme Court of New South Wales, Spender AJ, 5 June 1995) Naylor v Preston Area Health Authority [1987] 1 WLR 958 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 Oliveri v Administrative Appeals Tribunal (1997) 50 ALD 190 Osland v R (1998) 197 CLR 316 Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204 Quine v Keerasawat [2014] WADC 150 Rashid v Munir & Ors [2018] EWHC 1258 Re Applicant and Deputy Commissioner of Taxation (1995) 41 ALD 683 Robbins v Harbord (1994) 62 SASR 229 Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474 Vale v Eggins (2006) 46 MVR 514 Watson v Meyer [2013] NSWCA 243 Wells v Council of City of Orange (No 2) [2017] NSWSC 510 Wills v Bell & Ors [2002] QCA 419 Woodcroft-Brown v Timbercorp Securities Ltd (in liq) [2011] VSC 427 Yates v Jones (1990) Aust Torts Reports 81-009 Yip v Zreika (2001) 35 MVR 305
Texts Cited:	Australian Law Reform Commission, Uniform Evidence Law (ALRC 102) Dietrich, J., “Papers from the Tort Law Academic Workshop: Teaching torts in the age of statutes and globalisation” (2010) 18 TLJ 141 Goudkamp, J., “The Defence of Joint Illegal Enterprise” (2010) 34 Melbourne University Law Review 425 Kwai, I., “What he did on his Summer Break: exposed a worldwide security flaw”, New York Times, 30 January 2018
Category:	Principal judgment
Parties:	Plaintiff: Chloe Bevan First Defendant: Jake David Coolahan Second Defendant: Kurt John O’Connell
Representation:	Counsel: Plaintiff: Mr M Maxwell Defendant: Mr J Poulos QC / Mr B Wilson   Solicitors: Plaintiff: Gerard Malouf & Partners Defendant: Gillis Delaney Lawyers
File Number(s):	2013/369938
Publication restriction:	None

Judgment

The proceedings before the court

1. The plaintiff brings proceedings for damages arising from the circumstances of her injury in a motor vehicle accident at Wallsend in the State of New South Wales in the early hours of the morning (at about 3.37am) on 9 August 2013. The first defendant was the driver and the second defendant the owner of the vehicle in question. The basis upon which the proceedings are defended is set out in more detail below.

A series of adjournments

2. The hearing of these proceedings has been complicated by a series of adjournments, some of which arose from the plaintiff’s urgent surgery after the hearing had commenced, and others of which arose as a result of issues in the litigation. These delays had a significant impact upon the hearing.

3. First, after completing her evidence on 6 October 2016, the plaintiff collapsed in the street in pain and was taken to hospital. A CT of her thoracic spine showed a fractured L2 pedicle screw and L3 screw lucenty. Her admission to hospital for further surgery required the hearing to stand over part heard for more than a year.

4. The plaintiff’s state of distress during her evidence in October 2016 was immediately understandable in light of her deteriorating health. The likelihood of the plaintiff having “new” medical problems (T 1) had been the subject of a report dated 29 September 2016 referring to the plaintiff having a perineural cyst, which was shown to the court before the case was even opened. Counsel for the plaintiff explained these new medical problems as follows:

“MAXWELL: I also have a problem at this stage which I should indicate to your Honour. The plaintiff in this case has a significant back injury and it's just come to our attention this morning in fact that a recent ultrasound has shown some new problems in the back. There's apparently a perineural cyst, they describe them as post-surgical changes. Perhaps I should hand you a copy of this document.

HER HONOUR: Have you seen this? What's your position?

POULOS: I have. It doesn't worry me.

HER HONOUR: You have or you haven't?

POULOS: I have.

HER HONOUR: Is it a problem for you?

MAXWELL: It may not worry Mr Poulos but it worries the plaintiff because the prospect is that there's some further investigation required and some deterioration in the back. She's got noticeable lumps on her back now from the cysts and this has only just been - has only just come to my attention. There has been an ongoing problem for the last couple of months with her back and a deterioration and she's now suggesting that she would like it properly investigated.

HER HONOUR: You're asking for an adjournment aren't you?

MAXWELL: Well there's that, yes, probably. I'm not sure I have those instructions.

HER HONOUR: That's what I really meant when I said that.

MAXWELL: I don't have those instructions yet. This only came to light this morning.

HER HONOUR: Well what do you want me to do about it? You either want an adjournment or you don't.

MAXWELL: I've asked her for instructions. We're just getting some instructions now.

HER HONOUR: The thing is that this is dated when, 29 September. Well I don't know anything about perineural cysts.

POULOS: Let me just put the defendant's position. There's no doubt this girl had a severe injury, an orthopaedic injury which will create need for – which created a need for surgery and the situation is clearly set out in the medical reports my learned friend has served on us. The old saying in medicine is you don't treat X-ray pictures and this is an X-ray picture unexplained and we are here today to conduct this case on the basis of liability, and liability is very much in issue.

…

POULOS: There's a copy of the amended defence.

HER HONOUR: Would you mind making copies? Before she goes, would you just hand to her your green sheet documents, your chronology, your statement of issues and your schedule of damages? In relation to this back problem, we'll deal with it - the thing is this. If liability is the hot issue, we'll just do as much as we can and if it's necessary for there to be some further evidence in relation to this problem then we'll sort it out.

MAXWELL: I'm happy with that. There's no application to adjourn, I can tell you.

HER HONOUR: Well in that case let's just get on with it. If it turns out that some doctor says look this is really serious, then what we'll do is that portion of the evidence can be adjourned. I mean that's what the Court of Appeal said in that recent appeal from my colleague Judge Gibb, that she'd done the right thing in hearing the rest of the case but just giving them I think it was a three month adjournment.” (T 1 – 3)

5. Unfortunately, as the plaintiff’s subsequent admission to hospital for further surgery demonstrated, both counsels’ hopes that the hearing would be able to proceed were as misplaced as the parties’ three-day estimate (which I note was common to both parties, and was confirmed by Mr Poulos QC at T 2). The plaintiff’s surgery occurred on 9 October 2016; the hearing was adjourned part-heard the following week, and then stood over on a series of occasions to monitor the plaintiff’s progress. It was not until 17 February 2017 that the proceedings were even able to take a hearing date. Even then, the proceedings could only be listed for hearing on 27 November 2017.

6. Once again, the proceedings were given a three- to four-day estimate, to enable the hearing of the remainder of the evidence. Once again, this was an underestimate.

7. There were other problems. During the period of time between the setting down of the hearing date and the hearing date, an application was brought by the defendants for the hearing of separate proceedings commenced by Ms Davey, who was another passenger in the motor vehicle accident, in 2016 at the same time. The lateness of this application meant that it would almost certainly result in the vacating of the adjourned hearing date, a position considered undesirable by either party, and the application was abandoned. Additional expert evidence was served by the defendants, and the admissibility of this evidence created further difficulties when the hearing resumed.

8. The November 2017 hearing had to be adjourned again, as the time estimate referred to in paragraph 6 above was wholly inadequate. The evidence took a further eight days, following which there was a second adjournment, to March 2018, for submissions, the lateness of which was due to counsels’ unavailability.

9. The hearing of submissions could then not be completed in March 2018 because of fresh evidence, in the form of social media documentation showing the plaintiff conducting a transaction for the sale of the drug ecstasy on social media early in 2018. The plaintiff had previously denied such activities. The defendants sought leave to reopen their case. Leave was granted and Exhibits L and 22 were admitted by consent. The plaintiff also sought leave to rely upon certain reports not served by the defendants despite not having “served back” these reports. Further submissions were required.

10. As a result of all of these delays, judgment could not be reserved until 2 May 2018, when the plaintiff provided her final Reply Submissions.

11. These delays, individually and in combination, due to circumstances beyond the control of case management, have made the task of determining the issues more difficult than usual.

12. However, the real difficulty has been the parties’ failure to identify the issues at the outset by compliance with the Standard Orders for Hearing requiring that the issues in the case be delineated in the Schedule of Issues. Significant evidentiary and legal issues raised by both parties in the submissions were neither set out in the Statement of Issues nor identified during the trial. In particular, submissions on liability by the plaintiff underwent a series of changes and variations, and it was unclear which of these variations were relied upon and which (if any) were withdrawn. The delays caused by the plaintiff’s health issues, inaccurate time estimates and the application to reopen the case in March 2018 have merely exacerbated these difficulties.

The circumstances of the accident

13. The plaintiff, the first defendant, the second defendant and a third person (Cara-Lee Davey), were friends of approximately the same age and who had the same interests. They all lived close to each other, and at times with each other. A significant bond between them was that they purchased and shared illegal drugs on what I have found to be a regular basis.

14. The accident the subject of this litigation occurred following the last in a series of transactions for the obtaining (including obtaining by purchase on one occasion) and ingesting of drugs over the night and early morning of 8 – 9 August 2013. The plaintiff, the two defendants and Ms Davey had participated over several hours in the taking of drugs. They left Ms Davey’s residence in the second defendant’s car, under the influence of cannabis and crystal methamphetamine, for the purpose of driving first to the plaintiff’s residence to obtain an item to be exchanged for more drugs and then to the home of a drug dealer to obtain more drugs. Although it appears that the intention of the group was to return to Ms Davey’s residence to continue taking drugs, the group stopped near the Bunnings car park at Glendale, where they ingested more drugs before returning to her home to continue taking the drugs they had not yet consumed.

15. At about this time the first defendant began asking the second defendant to be allowed to drive the motor vehicle. The second defendant permitted him to do so and the first defendant immediately began to have difficulties controlling the vehicle. There is conflicting evidence as to whether one or all of the passengers (T 29) called for him to slow down. The plaintiff stated the first defendant was speeding, but the critical speed as measured by the police (Exhibit 17) suggests that other factors, rather than speed, were the reason for loss of control of the vehicle.

16. As the first defendant drove the second defendant’s vehicle west along Tillie Street, travelling around the sweeping bend onto Sandgate Road, Wallsend, he overcorrected and collided with a telegraph pole opposite the Matilda petrol station.

17. The plaintiff was wearing a seatbelt but had put her legs across the seat where the second defendant was sitting. She told the court that this was because he was not wearing a seatbelt. She was thrown partially out of the vehicle and suffered serious injuries.

The pleadings

18. The pleadings are of particular importance to the issues in this case, given the unusual nature of the defence and the failure of the parties to identify the issues in dispute at the outset of the proceedings.

19. The amended defence filed on 30 June 2014 pleads (at paragraph 5) that the defendants:

“…deny that they owed the plaintiff a duty of care as the plaintiff and the first and second defendants were engaged in a joint illegal enterprise, namely the purchasing or ingesting or possession of a prohibited drug under s.10 Drug Misuse and Trafficking Act and further that the plaintiff had in her possession an item of equipment, namely an Ice Pipe, which is used for the administration of the prohibited drug”.

20. There pleading of contributory negligence is made on the following bases:

“(a) Travelling in a vehicle driven by the first defendant when the plaintiff knew she should not be travelling in the vehicle as the first defendant was on his Red CP-1 Provisional Licence.

(b) Travelling in a vehicle where she knew the first defendant had consumed at least five cones of ice in a period which commenced approximately four hours prior to the accident.

(c) Travelling in a vehicle where she knew or ought to have known the driver was affected by illegal drugs.

(d) Failure to wear a seatbelt whilst travelling in the vehicle.

(e) Sitting in the vehicle with her legs across the rear seat of the vehicle.

(f) Sitting in the vehicle with her legs across another passenger who was not wearing a seatbelt.

(g) Failing to direct the first defendant driver to stop the vehicle when the first defendant driver was driving in an unsafe manner.”

The issues in the case

21. The issues in the case were not appreciated by the parties until well into final submissions. As a result, some of the matters addressed by the parties in the course of the hearing or in submissions (for example, the plaintiff’s submissions concerning statutory defences and whether there would be an application to amend the defence) were asserted by the defendants to be misconceived. Other issues, such as reliance by the plaintiff on occupational therapy reports which were not tendered by the defendants, were not raised during the hearing at all, and were only made during submissions.

22. Doing the best I can, in terms of distilling the issues from the final submissions, these are as follows:

1. Whether the plaintiff was, in terms of the common law defence (not s 54 Civil Liability Act 2002 (NSW) (“the Act”)) of joint illegal enterprise, a party to any criminal conduct, let alone a joint illegal enterprise in criminal law.

2. Whether the principles enunciated by the High Court in Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 extend beyond the use of a vehicle for an illegal enterprise (Godbolt v Fittock (1963) 63 SR (NSW) 617) to offences committed where the use of a vehicle is not necessarily a feature of the criminal offence (Jackson v Harrison (1978) 138 CLR 438).

3. Whether the defendants’ denial of duty of care on the basis pleaded (namely joint illegal enterprise) is made out on the facts of the case, having regard to the particulars provided.

4. Whether the defendants are entitled to rely upon the common law principles in relation to joint illegal enterprise, or whether s 54 of the Act covers the field in regulating the common law defence of illegality in New South Wales.

5. Whether, in the absence of any pleading of the relevant statutory provision in the Act, the defendants are entitled to plead or rely upon s 54 and/or the common law defence (r 14.14(2) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); Watson v Meyer [2013] NSWCA 243 at [77] – [83]; Hall v Van der Poel [2009] NSWCA 436; Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204).

6. Whether the plaintiff may be taken to have waived any objection to the requirement to plead s 54 (Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206).

7. Whether, if the defendants are entitled to rely upon s 54, the plaintiff’s illegal conduct materially contributed to her injuries (s 54(2)(b)) and whether the conduct of the first and/or second defendant is material (s 54(2)).

1. Whether, if the defendants are entitled to rely upon the common law, the plaintiff was a party to a joint illegal enterprise.

2. Whether any of the particulars of contributory negligence are made out.

3. The plaintiff’s claims for damages, including past and future economic loss, gratuitous care, out-of-pocket expenses and non-economic loss, all of which are the subject of dispute. This included, particularly in relation to economic loss and gratuitous care, the credit of the plaintiff as a witness.

4. Whether the plaintiff was entitled to rely upon reports served by the defendants but not “served back” by the plaintiff.

The circumstances leading to the motor vehicle accident

23. I make three preliminary observations as to the evidence of the plaintiff and of the witnesses generally:

1. Apart from the plaintiff’s mother and grandmother, all the other witnesses (including those called by the defendant) were contemporaries of the plaintiff, who is now 23 years of age, and all participated in the regular taking of drugs. There was a history of angry disputes between some of them, and they behaved accordingly in court (for example, the plaintiff’s current partner had a confrontation with the second defendant during a recess in the hearing and the plaintiff had a series of confrontations with Mr Poulos QC). I consider it necessary to show a degree of flexibility and understanding of such conduct.

2. Admissions were made in the course of their evidence as to the sale and use of drugs. All of that evidence is the subject of certificates under s 128 Evidence Act 1995 (NSW). I have not made any value judgment of any witness by reason of participation in such activities.

3. As noted above, the plaintiff became ill shortly after giving evidence on 6 October 2016, and the medical evidence suggests she must have been in considerable pain while giving her evidence over the first three days of the hearing. I have treated the evidence she gave immediately prior to entering hospital for emergency surgery with a great deal of caution, on the basis that she was not at her best at this time, in that she was in increasing pain and distress.

24. There are, however, other issues to which the credit of the witnesses is relevant, namely the truthfulness of their answers, particularly in relation to the plaintiff, who denied any significant drug use in her examination in chief and portrayed herself as a person with a strong work ethic who was in regular employment. The credit of the second defendant (and in particular his evidence concerning the plaintiff’s drug-related activities) was the subject of strong attack.

25. In my findings as to the credit of witnesses, I have made observations as to their credit, but those findings are not based on the observations set out above. The fact that a witness takes drugs, or behaves foolishly in the course of proceedings for the reasons set out above, would have only peripheral relevance to such findings.

The plaintiff’s evidence

26. The plaintiff commenced her examination in chief with a resolute denial of any drink or drug problems. She said that she had only consumed alcohol “a couple of times” and “didn’t really ever like to drink” (T 16) and that her experience with drugs was “the same with the alcohol, just sort of, you know, around a big group of people or at a party, yeah” (T 16).

27. This was not a good start to evidence of the events on the day in question, which consisted of descriptions of the plaintiff and her friends travelling around in the second defendant’s car over an extended period looking for and consuming drugs, and then going in search of more.

28. The plaintiff said that on the night of the accident, the first and second defendants had turned up at her home between 5.00 and 6.00pm. She described the defendants as “just friends” (T 17). She got into the second defendant’s motor vehicle (which the second defendant was driving) and they drove to Mount Sugarloaf where “Kurt got out this little bag that he had which contained drugs in it” (T 17). She said that “then Kurt started smoking this thing that he called a pipe” (T 17) and he passed it to her and said “Would you like some?”, and then “just gave it to me and yeah, just put it in my face and I was like, “oh okay”, and then I just had two little tokes on it, like two little puffs of it, yeah”. She said that this was all that she consumed (T 18). The first defendant then had some drugs, although the plaintiff then corrected this to say he had smoked “cigarettes” (T 18), qualifying this by adding that she “didn’t really pay attention to what he was doing” as she was “on my phone and stuff” (T 18).

29. They all sat in the car and talked for about half an hour after they had completed smoking the drugs, and at that stage began smoking cigarettes. For the last 30 minutes that they were on Mount Sugarloaf they were “just smoking cigarettes and talking to each other, yeah” (T 19). She said that Kurt “seemed fine to me” as they drove off to Ms Davey’s home at Shortland. It took approximately 30 to 40 minutes to get there and when they arrived, they were “all sitting in the lounge room together, just watching TV, smoking cigarettes and yeah” (T 20-21).

30. The plaintiff described what happened next as follows:

“A. And then Cara-Lee had some cannabis in her possession and she said she was going to share that out through the group and that’s what she did.

Q. How was that--

A. It was only a small amount, yeah.

Q. How was that done?

A. She chopped, she chopped it with tobacco and then shared it around, yeah.

Q. How much of that did you have?

A. Only two small amounts, yeah, in the--

Q. You described those as cones, do you?

A. Yeah, yeah.

Q. How long after you arrived at Cara-Lee’s place was it that you did that?

A. It was pretty much straight away, yeah.

Q. Did you notice--

A. As soon as we got there, it was in like probably 15, 20 minutes that, yeah.

Q. Did you notice if Jake or Kurt had any cannabis?

A. Yes. We all had some but I didn’t notice. Like I wasn’t paying any attention to how much they had or anything like that. I just, yeah. I seen, I seen them both at least have one, yeah. Or two, yeah.

Q. Did you then just stay at Cara-Lee’s place?

A. Yeah, yeah.

Q. For how long?

A. Hours and hours. We were just hanging out there for the night, yeah.

Q. What was happening then as you were hanging out, as you say?A. We were just sitting in the lounge room, watching TV, and smoking cigarettes and yeah, not doing much really and just talking and, yeah.” (T 20.3-.39)

31. The plaintiff described how she left Ms Davey’s home as follows:

“Q. At some stage, did you leave Cara-Lee’s place?

A. Yes.

Q. Do you recall what time that was?

A. It was roughly about 2 in the morning, say, yeah.

Q. Where did you go to?

A. We went to my parents’ place.

Q. Why did you go there?

A. I had to get some clothes because I was in my pyjamas and stuff, yeah.

Q. Who was with you on that trip?

A. Kurt O’Connell, Jake Coolahan, and Cara-Lee Davey.

Q. Who was driving at that time?

A. Kurt O’Connell.

Q. Did you notice anything usual about Kurt’s driving at that time?

A. No, he was fine.

Q. Did you notice anything unusual about Jake at that time?

A. No, I think we were all pretty okay. It had been hours and hours since we’d had anything. We were fine, yeah.” (T 21.41-22.14)

32. She then described how they came to visit the premises at Argenton where the drug dealer lived:

“Q. Well then from your place where did you go?

A. Kurt decided to go to Argenton to get smokes.

…

Q. So you wanted to get a packet of cigarettes from the service station.

A. Yeah.

MAXWELL

Q. When you went - I'm just diverting, when you back to your place did you pick up anything else apart from your clothes?

A. No, I was looking for my - Cara-Lee wanted to borrow my Navman, I was looking for that, but I just got my clothes and that was it, yeah.

HER HONOUR

Q. She wanted to buy your what?

MAXWELL: Navman.

WITNESS: My Navman.

MAXWELL

Q. So you arrived at the 7-Eleven at Argenton.

A. Yeah, yep.

Q. And did you remain in the car or what did you do?

A. No, me, Kurt O'Connell and Cara-Lee Davey got out and we went into the service station together and bought smokes, yeah.

Q. What happened to Jake?

A. Jake said, “I'll be back; I'm going to Crystal's(?).”

Q. And--

A. And he just took off out of the car while we were at the service station, yeah.

…” (T 22.16-23.23)

33. The plaintiff said she did not know who the person “Crystal” who lived there was. She described how when they got back into the car she sat in the back left passenger seat while Kurt sat in the driver’s seat. There was a conversation between the first and second defendants after they left the service station at Argenton as follows:

“Q. And where did you go from there?

A. We were going back to Cara-Lee's house.

Q. So after you'd been travelling for a period of time was the car stopped?

A. Yes.

Q. Did you hear a conversation before the car was stopped?

A. Yes.

Q. And can you relate that conversation and between who it was?

A. Yes. Yes. Between Jake Coolahan and Kurt O'Connell.

Q. Who spoke first?

A. Jake Coolahan.

Q. And what did he say?

A. He said, he said, “Can I drive?” I think that's all he said, yeah, just “Can I drive?”

Q. To?

A. To Kurt O'Connell, yeah.

Q. And what did Kurt say?

A. Kurt said, “Yes.”

Q. So--

A. Very casually, yeah.

Q. What happened then?

A. And then, so yeah, we pulled over, and then Kurt O'Connell got out of the driver's seat and Jake Coolahan got into the driver's seat and proceeded to drive from there.

Q. So at that time did you notice anything unusual about--

A. Not at all.

Q. --Jake?

A. No. Not at all.

Q. So do you recall where it was that the car stopped?

A. Yes, I do.

Q. Where was it?

A. It was just on Lake Road. I know the exact spot, I can't ever get it out of my mind. Yeah.

Q. So where did Kurt go when Jake took over the driving?

A. He jumped into where Jake was sitting, yeah.” (T 25.5-26.2)

34. The plaintiff said that she was wearing a seatbelt but that the second defendant, who was now sitting in the back seat beside her, was not (T 26). She said that the first defendant was “driving fine, at first”, but about three minutes later he began speeding up at the end of Longworth Avenue and began driving erratically between Longworth Avenue and Cameron Street, where the plaintiff told him to “slow the fuck down” (T 29).

35. The plaintiff described the circumstances in which Ms Davey told the first defendant to slow down:

“A. And then he kept speeding up and coming in around - sorry, I'll just refer to the map. Cameron Street's there. Come round the corner on Cameron Street and Tillie he sped up to the next corner; Cara-Lee told him to slow down. We both knew the area very well. And as he come around the corner going fast, I think he was trying to do a burnout, I don't know what he was doing, but he was driving erratically, and as he come around the corner, the car like flung sideways and like, and like went up and over the medium(as said) strip and it looked like we were going to crash directly head‑on into the service station or into the, the gate or the fence there. And as we swung my legs – ‘cause I had my legs resting on a little thing in the back. My legs flung over Kurt and I seen him and those people and I prayed for my life. And then by the time I'd looked up I'd seen Jake Coolahan grab the steering wheel like that and just straight into the telegraph pole.

Q. So when you say “grab the steering wheel like that”, you're turning--

A. He like--

Q. You're turning--

A. --overcorrected.

Q. Please, you're turning it to the left.

A. Turning it to the left, yes, sorry. Yeah. And then we crashed into the telegraph pole. And then I just broke(as said).” (T 29.47-30.19)

36. The plaintiff described the vehicle’s speed as follows:

“Q. Did you see what speed the vehicle was doing at any time?

A. Yes, I looked at the speedometer and from my vision, what I could see as a backseat left passenger, he was going between 65 and 70 ks.

Q. And do you recall when that was in relation to the accident?

A. Yep, just on the corner, right, right just - if I could point to you(as said) on the map, Tillie Street, sorry. It was literally like on the L of that Tillie Street; it was just on the corner, like he was going very fast.

Q. So just as he came into Tillie Street--

A. Just as he came into Tillie Street.

Q. --is that what you're saying?

A. Yes.

Q. Is that when you said what you said?

A. Yeah, that's, that's when I said what I said. Sorry about the foul language.

Q. So did you see what the car hit?

A. Yes, I did. Yeah, I was fully awake, I've seen everything that happened.

Q. What did it hit?

A. It hit a telegraph pole.

Q. In relation to the service station on one side where was the telegraph pole?

A. The service station is on the right hand side, and the telegraph pole is on the left hand side.

Q. What happened to you at that stage? When it hit the telegraph pole?

A. I felt my body just snap, crunch. I was, I was completely paralysed, couldn't move my legs, I had no feeling in my legs.” (T 31.28-32.8)

37. The plaintiff was assisted from the car by the first defendant, and an ambulance arrived about 10 to 15 minutes later (T 32).

The plaintiff’s cross-examination

38. In cross-examination the plaintiff said that she consumed two pipes of ice, as did the first defendant, and that the second defendant had consumed three to four pipes (T 91). Her description of her presence in the vehicle and the amount of ice she smoked was challenged on the basis of a text message she sent at 4.39pm on 7 August which said:

“Can you get me any Dingas?” (Exhibit 1)

39. She received a reply in the negative at 4.54pm and a follow-up from the person from whom she requested the “Dingas” at 8.59pm as follows:

“What are you chasin [sic] Chloe”

To which she replied:

“Ice or gear” (Exhibit 1)

40. When the reply “I’ll see how much” was texted, she replied “Ok i [sic] only wanna pay 80 or 90” (Exhibit 1). At 9.16pm she complained that “No one is replyin” and in response to an enquiry as to when she wanted this drug (at 9.54pm) she replied “Should come chill with me and Kurtyboy [a reference to the second defendant]”. The reply came “Come get me from Edgy Inited servo” to which Chloe responds “I’ll ask him” (Exhibit 1). The next message is one of regret “Chloe I don’t know were [sic] to start to say how sorry I am”, sent at 2.13pm on 9 August, apparently in response to knowledge of the plaintiff’s accident.

41. On 11 August 2013 the plaintiff responded to this by saying:

“You owe me and Kurt $100 for that ice I gotta give you that navman and you gotta get my little brother’s iPod back or ill be telling me [sic] dad what happened and he can go round and see your grandpa that clear?!!!” [Grammar corrected] (Exhibit 1)

42. This was replied to at 9.12pm on 11 August as follows:

“Yes Chloe that’s clear I will get the iPod for [illegible] no worries and yeah I can do that either on Tuesday if not Wednesday if that’s all right.”

43. The plaintiff replied on 11 August 2013 at 11.24pm:

“I just can’t believe youse [sic] went back and smoked mine and Kurt’s ice when we were in hospital ha ha ha lowie [sic] act.” (Exhibit 1)

44. This series of text messages is consistent with the plaintiff’s description of having gone to her home to pick up a Navman and some clothes and not an iPod (which she already had with her) (T 106-107). The group stopped at the 7-Eleven at Argenton to obtain cigarettes and the second defendant then went to the home of Crystal, returning with the intention of travelling to Ms Davey’s house.

45. However, the plaintiff’s reference to having ice in her possession at the time of her accident - which appears to be the only inference that can be drawn from her complaint about it having been smoked by others - was denied by her in her evidence (T 100-105), when the text messages were put to her one by one. Her responses were essentially that she could not remember:

“Q. Can you explain why you would have written a text message saying, “You owe me and Kurt $100”?

A. No, I can’t explain that. I just said it made my memory worse when you said that. I was remembering the whole thing about messaging Jake until you said that because I don’t understand it. I can’t remember. This is three years ago.” (T 101.39-.44)

46. She also denied sending certain of the messages:

“Q. Let me read it out as being transcribed. “You owe me and Kurt $100 for that ice I gotta give you.” Now that’s what it says in the message. “For that ice I gotta give you.”

A. That message has not come from me. That message has not come from me.” (T 102.43-.47)

47. She also disputed the contents of the message:

“Q. Did you send that message?

A. I don’t think so because I really never got that Navman that night. I am telling you the truth. I never got the Navman. You keep saying it and I never got it.” (T 103.23-.26)

48. When asked who could have sent it on her iPhone, she replied:

“Q. Who do you say sent it?

A. I don’t know. That’s why I asked - look, and I understand you don’t – I don’t ‑ you don’t have to give me that permission but I’m just saying. I know I sent him a message about the iPod. I know that for a fact. I told you that when you started to talk about it. ..(not transcribable).. I haven’t done anything wrong. I’m a victim.” (T 103.42-.47)

49. The plaintiff eventually came to admit sending these messages:

“Q. I want to put it to you that Jake responded to that message and you wrote back, “Okay, thank you. Any change you can drop it tomorrow or the next day?”

A. I sent that message about the iPod, yes I did. I did send that message.

Q. Did you send this message on the same day at 11.24?

“I just can’t believe youse went back and smoked mine and Kurt’s ice when we were in hospital. Ha, ha, ha, lowie act (as said).”

A. Yes, I might have said that because I was pretty annoyed at the fact that he had taken my iPod, done that with it, and then I hadn’t even got my iPod back and he hadn’t contacted me about it or anything. Yes, I was pretty angry, yes.

Q. You might have seen that thing I read out was “Kurt and mine ice.”

A. Yes.

Q. So you had ice in your possession that you considered to be yours?

A. No, I never. I said after the fact, after the accident, a couple of days later I was really angry. I still hadn’t seen my little brother’s iPod. So therefore, like, I just claimed ownership of it. I never, ever had any ice in my possession that was mine. I’ve told you over and over. I have never on that night, the night before, never ever had any ice that was in possession. Not mine, none of it.

Q. Yet you use the word “Kurt and mine ice.”

A. Yes, and I told you why three times now.

Q. Why?

A. Because I was angry. It was two days later. I hadn’t seen my little brother’s iPod. I was cranky. I took ownership of it because that’s what he took to do with it. You’ve got to understand where I’m coming from.

Q. What happened to yours and Kurt’s ice?

A. Pardon?

Q. What happened to it?

A. To what?

Q. The ice that Kurt--

A. I have never had any ice. I have told you that several times.

Q We’re going around and around in circles.

A. You can say it over and over. But I’m going to keep on denying it.” (T 103.42-104.42)

50. I note that the same pattern of initial denial, and then admission, also occurred in relation to the social media message the subject of the application for leave to reopen (Exhibits L and 22).

51. The plaintiff was asked about the sums of money she referred to in the text messages as follows:

“Q. How much ice was in the bag?

A. I honestly wouldn't have a clue.

Q. Well you used‑‑

A. I, I wouldn't know. I didn't see it at all. I never even laid my eyes on that big, never.

Q. In the text message you use the amount $100. You remember that?

A. Yeah.

Q. What did that represent?

A. A hundred dollars worth.

Q. How much is that?

A. A really small amount.

Q. When you put your fingers together, are you able to say how it would be measured in the market?

A. No well‑‑

Q. What would you call it? A cone or‑‑

A. The thing - like whenever I've seen it and someone's get it and they - it's a hundred dollars worth, it's always like just this little tiny thing. It's‑‑

Q. What shape?

A. Sort of looks like - I don't know if you're familiar with like crystals. It looks like a bit - like a clear quartz crystal.

Q. And is there a measurement? If you go to a dealer and say, “I want some ice,” do they quote the amount that you'll get for a certain amount of dollars?

A. I think it - I think it's called a point or something.

Q. A point?

A. Yeah.

Q. And how much is a point in terms of quantity?

A. I wouldn’t know.

Q. How much does it cost?

A. Cost - well it's a hundred dollars. That's what I said, I think that's what it is, is a point yeah.

Q. So how many‑‑

A. I, I - I'm not really, I don't know much about it.

Q. Well you're doing very well so far. A hundred dollars would buy you a point.

A. Yeah.

Q. How many smokes would a point produce?

A. I wouldn't know. I've never gone out and bought one. I wouldn't - how would I know that? I wouldn't.

Q. I would suggest that you know that because you bought it frequently.

A. I haven't bought it frequently. That's a lie, I have never ever in my life, no.

Q. Is there a difference in the amount that you can get for a hundred dollars compared say to marijuana, a hundred dollars worth of cannabis, how much would you get for that?

A. I assume you'd get quite a bit because the $20 of cannabis is bigger than the - like from the $20 of cannabis is bigger from the hundred, of the other stuff. I mean I don't know.

Q. Is there a standard measurement of buying cannabis?

A. Yes. I know that like you buy $20 worth or you buy $50 worth or more but yeah.

Q. How much do you get for $20?

A. Only a small amount, yeah.” (T 109.4-110.23)

52. The plaintiff said that persons buying drugs would receive a discount for buying more (T 110-111) but said she knew little about buying drugs and “had only ever bought cannabis once” (T 111).

53. The plaintiff’s explanation as to how the figures “80 or 90” appear in the text message were as follows:

“Q. You know in that screenshot we showed you where an answer was given, “Okay, I only want to pay 80 or 90”‑‑

A. Yeah.

Q. ‑‑was that you seeking a discount then?

A. No, that was just - I, I don't know. Like I said, this must've been for someone else. I didn't have any money. So it was probably whoever said, “I'll only pay 80 or 90,” and then that's what I've said to Jake.

Q. Well it doesn't say anything about somebody else. It just says, “I only want to pay 80 or 90.”

A. Yes I understand that but it's not - it was never for me.

Q. It doesn’t say, “My customer wants to pay 80 or 90 or my friend”‑‑

A. I would never write that‑‑

Q. ‑‑“wants to pay 80 or 90.”

A. ‑‑my - I wasn't like a drug dealer. What the hell. No. You just make that sound so wrong. I was hanging around the wrong crowd of people. Therefore I could get the wrong types of things. If someone asked me for something, I would help them get it because I was hanging around a bad crowd. That's all that this is, like.

Q. And when you say “if somebody asked me for something,” you mean drugs?

A. Yes.

Q. And you knew that the people that you hung around with could get it?

A. Kurt, Cara-Lee, Matty, yes.

Q. So how long had that arrangements - that system been in place of the people‑‑

A. Like I said, I - after my 18th birthday I was probably hanging around them a lot and that's when that all come about.” (T 111.30-112.13)

54. The plaintiff is aware that the second defendant was going to swap the iPod she provided for ice (T 126) but said that it was his decision to do so, not hers (T 157). She was aware at all relevant times that taking drugs was illegal (T 59, 64 and elsewhere). Although initially claiming she did not know that smoking ice could affect people’s behaviour (T 65 and 95), she agreed that a drug-affected person probably should not be driving a motor vehicle:

“A. Yes, I understand that, yes.

Q. You agree with that, do you?

A. Yes, I do.

Q. Just let’s take an assumption here, a hypothetical. Do you know what I’m talking about?

A. No, sorry, I don’t understand.

Q. Just imagine if, right? You’ve been at Mount Sugarloaf for a period of time of some hours or maybe less - we don’t know - during which time someone has been smoking drugs, he gets back into the car. Right? Would you agree that a prudent sensible thing to do would be to say, “Well, I don’t know what effect this is going to have on him. Maybe I ought to call it a night.”

A. I never thought that Kurt would ever put me in danger whilst driving, though.

Q. You were prepared to take the risk?

A. Well, it wasn’t really a risk. I never felt uncomfortable with Kurt driving ever.” (T 66.10-.29)

55. Although the plaintiff dismissed the risk, she had allowed herself to be driven around for some hours by two persons in succession, each whom she had observed taking drugs (T 164) in circumstances where she knew that this was dangerous, where the second of these persons was a young (and likely inexperienced) driver, and all were tired because it was the early hours of the morning.

56. The plaintiff’s case is that she was not the person who suggested leaving Ms Davey’s home to obtain an item of value in order to swap it for more ice (T 431), although she admitted she did know that in participating in the obtaining of this illegal product and using it, she was involved in the purchase and use of an illicit drug (T 431). However, the plaintiff denied knowing that using such a drug is the kind of activity which, if prosecuted, could lead to a conviction and possible gaol sentence (T 431).

The plaintiff’s credit as a witness

57. The principal difficulty with the plaintiff’s evidence was her obvious dishonesty about the nature and extent of her drug use. The following is an example:

“Q. Did you buy drugs?

A. No, I never.

Q. Never bought any grass for example?

A. Never. I might have put a little bit of cannabis when I was a teenager, but like maybe once or twice, but it's not something -

Q. The impression that you're seeking to give her Honour is that you smoked ice for the first time on the evening before your accident?

A. No. I said it was actually the second time that I ever tried it, yes.

Q. When was the first time you ever tried it?

A. It was also with the same people.

Q. When was the first time?

A. About like a month before that. It, it was like around the same time actually.

Q. What were the circumstances in which you tried ice on that first occasion?

A. I didn't really know what it was. Someone just gave it to me and I tried it. Peer pressure, that happens when you're a teenager.

Q. What effect did it have on you?

A. Just made me feel awake, from what I remember.

Q. Was Cara-Lee with you when that happened?

A. I can't remember.

Q. To your knowledge Cara-Lee smoked ice before the accident didn't she?

A. I'm not even sure.

Q. You're not sure? How long have you know Cara-Lee for?

A. I've known Cara-Lee for a long time, since high school, but I don't go asking her, like that sort of stuff.” (T 54.11-.44)

58. The issue of her honesty is central to the defence of joint illegal enterprise and to quantum.

59. Some of the questions put to the plaintiff may seem unduly invasive, to a person relying only on the transcript. In particular, the plaintiff responded with outrage to cross-examination as to whether she had ever sold drugs for money or purchased drugs using sex, and left the courtroom:

“Q. Have you ever sold drugs for money, or money's worth?

A. No.

Q. Now I'm going to ask you a question. Did you ever sell sex for the purposes of obtaining drugs?

MAXWELL: I object.

WITNESS: Excuse me, that's Kurt O'Connell.

HER HONOUR: Wait a moment, thank you, thank you.

MAXWELL: I object to that.

WITNESS: This is a fucking joke. That is disgusting. You might want to ask Kurt O'Connell. He's the one that goes on Grindr and sells his dick for money. That is a fucking disgusting thing to say to someone.

HER HONOUR: For the benefit for the transcript I can record that the plaintiff has left the room.” (T 452.5-.25

60. The question about the plaintiff selling herself for the purchase of drugs was objected to on the basis that it was put to inflame her and was irrelevant, but I allowed it (T 426.5 – 427.28). Similar questions were put to the second defendant, Kurt O’Connell.

61. Appellate courts have been critical of judges who permit what they consider to be unnecessary or inflammatory cross-examination. In Let’s Go Adventures Pty Ltd v Barrett [2018] NSWCA 243 at [74] and [122] – [126], the Court of Appeal was critical of the first instance court’s refusal to reject a question put to a witness that he was a liar which, the Court of Appeal held, was the reason for his being uncommunicative or evasive in his subsequent answers. (The plaintiff and another diver had been on the defendant’s boat to go diving when the other diver, unbeknownst to the plaintiff, struck his head on the boat and asked an employee of the defendant if he could abort the dive, which was refused. This other diver was then saved by the plaintiff in circumstances where both suffered injury. It was put to the witness whose role was to supervise the divers going into the water that he lied by denying that this diver had asked him to abort the dive.) The Court of Appeal held that such questions should not have been permitted because of their unfairness, in that it could have been another employee on the boat who refused to let the injured diver get on board, and because this unfairness meant that the witness’s ability to give evidence subsequently was compromised, in that his unsatisfactory answers should be seen in this light.

62. In the present case, the grounds for regarding such a question as unfair are probably even clearer. The plaintiff suffered serious injuries, had a significant pre-existing psychiatric history and was so distressed that on this occasion she ran out of the courtroom, where she could be heard screaming in the corridor. Unlike counsel in Let’s Go Adventures Pty Ltd v Barrett, who simply objected in the usual way and when some of the cross-examination put allegations of lying did not object at all, Mr Maxwell objected immediately and firmly, on the basis that these questions were put to inflame the plaintiff. What is more, on more than one occasion when the plaintiff was being cross-examined, she accused Mr Poulos QC of being unfair to her and trying to upset her. Mr Poulos QC’s explanation that he was calling two witnesses was less clear than the circumstances in Let’s Go Adventures Pty Ltd v Barrett, where the evidence of the other diver and of the plaintiff were already before the court at the time of the ruling, and the injured diver (who had subsequently died) could not be cross-examined on the statement served by the defendant.

63. There are, however, significant differences. In Let’s Go Adventures Pty Ltd v Barrett, the court’s findings were made on the basis of the cross-examination, which the court considered meant that the documentary evidence did not need to be consulted (at [126]). In the present case, however, the plaintiff’s mobile phone records (Exhibit 1) clearly indicated her leading role in the purchase and consumption of drugs on the night in question. The plaintiff and her friends were on their third trip for the purpose of obtaining drugs, where the origin for the collateral for the purchase of the drugs had been obtained in less than honest circumstances. In addition, part of the attack on the second defendant’s credit was that he had sold himself for sex on Grindr, and was not to be regarded as a witness of credit because of his own drug-taking and sexual conduct.

64. Section 41 Evidence Act 1995 (NSW) gives the court power to disallow improper questions asked in cross-examination. The circumstances in which a witness may be asked about sexual conduct should be a subject of particular caution, because sexual activity is rarely if ever relevant to issues before the court. I also note that this is not a right restricted to criminal proceedings; as the Australian Law Reform Commission (“ALRC”) notes in its report Uniform Evidence Law (ALRC 102) at [5.107] and again at [5.118], “a witness in a negligence or a civil assault matter may be as vulnerable to attack in cross-examination as a victim of a crime.”

65. However, in this case, the plaintiff’s evidence to the court denying even her use of drugs (other than on the handful of occasions she acknowledged in her examination in chief), let alone their sale, is an important part of her presentation of herself as a young woman with a long working career ahead of her as well as respectable pre-accident employment, and no drug issues whatsoever.

66. For a trial judge, to rule out this kind of evidence during a trial, runs the risk that evidence from the defendants’ witnesses on this topic would consequently not be able to be given. If the plaintiff had in fact been not merely using but selling drugs in circumstances of the kind foreshadowed by Mr Poulos QC, to refuse to permit the plaintiff to be cross-examined about these transactions would be to prevent the defendants from being able to put their case or to lead the evidence put in his later application to reopen. The ALRC concluded (at [5.115]) that a question should not be disallowable merely because it challenges the truth of the witness’ statement or raises a distasteful or private topic. This case is a relevant example.

67. In addition, the dangers of judges taking too strict a course in rejecting questions in cross-examination should not be understated. The complaint of judicial partiality is even easier to make out where there has been judicial intervention, as opposed to allowing a trial to run its course and permitting counsel to conduct their cross-examination as they see fit, as many of the decisions on this issue confirm.

68. Further, when such questions are asked in the course of a trial where the trial judge has yet to form a concluded view, a trial judge who rules out a question of this kind runs the risk of doing so in circumstances where this in fact amounts to prejudgment. It is sometimes the case that what is being put to the witness is in fact truly the case, and the challenge to the evidence is without substance. In such circumstances, it is easy to be wise after the event and to say that a particular question should not have been put. In the present case, if questions about the plaintiff’s drug-dealing activities had not been permitted, a false picture of the plaintiff would have been painted. I note that Mr Maxwell in fact put to the second defendant that he was lying about the plaintiff selling and using drugs, and that Mr Poulos QC specifically referred to this cross-examination in his application to reopen, as well as to the plaintiff’s failure to give further evidence about the social media posts the subject of that application.

69. The task of the trial judge, in determining the evidence to accept, involves the establishment of a balance in terms of s 41, to ensure that all proper admissible evidence is given. In Rashid v Munir & Ors [2018] EWHC 1258 Turner J, hearing an appeal from Judge Davey QC, concurred with the first instance judge’s finding that the evidence was “a festival of mendacity” (at [1]). Turner J added (at [19]):

“Attempting to establish the common but unstated intention of a group of individuals all giving honest but conflicting evidence is difficult enough. Where, as here, each witness is attempting to outdo the other in a rich display of competitive dishonesty the task of the judge is unenviable.”

70. In the present case, the “competitive dishonesty” of the plaintiff and certain of the witnesses she called was such that I was satisfied that questions about the nature and extent of the plaintiff’s drug dealing activities should be put, including questions about how she paid for her drugs.

71. The plaintiff was, as a consequence, asked the following additional questions:

“Q. Was there a time when Georgia Madden saw you performing a transaction where you offered oral sex for money to buy drugs?

A. No.”

Q. Did you ever conduct yourself in such a manner before your accident as to offer people sex for the purposes of obtaining drugs?

A. No.” (T 428.1-.7).

72. The plaintiff’s attempts to minimise her drug-related activities on the night in question are not only at odds with her own text messages but the evidence of the other two occupants in the car who gave evidence as well as the other occupant of Ms Davey’s house.

Cara-Lee Davey

73. Before commencing a summary of Ms Davey’s evidence, I note that she provided a statement to the NRMA investigator on 22 October 2013, where she described the relevant events as follows:

“8) I was had been at home the night before and I was asleep on the lounge room. I received a several phone calls from Chloe Bevan and Kurt O’Connell about 11pm. My flat mate woke me up and I answered the phone to Chloe. She asked me what I was doing and they wanted to come. Kurt O’Connell and Jake Coolahan wanted to come over with Brent Knight. I have known them all since 2009 when I worked at Hungry Jack’s, Glendale.

9) Chloe, Jake, Kurt and Brent drove to my house in Kurt’s car. Kurt owned a Blue Commodore. We were watching television for a while and we smoked a couple of pipes on ice. Ice is very similar to speed but just a more intense version. I saw everyone have a cone. I also saw Jake have a cone as well. I didn’t want to do it at first but I joined in because everyone else was doing it. It made my heart pump really fast. It made my vision go a bit weird and I was seeing coloured dots. I also Chloe have a cone of it as well. She may have had four. Everyone had at least four cones.

10) About 2.30am the next morning we left my house. I went with Kurt, Jake and Chloe. Brent was asleep. We got into Kurt’s car and he was driving perfectly fine. I was in the front passenger’s seat and Chloe was behind me and Jake was behind Kurt on the left. We drove to Cameron Park to pick up Chloe’s I-Pod. Cameron Park is about 15 minutes from here.

11) We drove to a house somewhere in Edgeworth to swap the I-Pod for more drugs, more Ice. Jake went into the house and returned a short time later with some more Ice.”

74. She described the circumstances in which the second defendant was asked by the first defendant if he could drive the car and the second defendant said “he would think about it”. She knew that the first defendant had only “red plates” and was not meant to drive after 11.00pm (paragraph 15). She described the circumstances of the accident.

75. Ms Davey’s evidence needs to be viewed with caution, in part because she asserted her memory was now a lot worse because of her head injury (T 285), her acknowledgment that relevant facts were kept from the police because of fear of prosecution in relation to drugs (T 286) and her acknowledgment that if she did have difficulty recalling the events the subject of inquiry by the NRMA investigator, she could have done so but did not do so (T 308). Even with those reservations in mind, Ms Davey’s evidence contains significant concessions, such as the fact that she was an habitual marijuana user before the accident (T 285), however, she denied frequent use of other drugs, and she described the plaintiff as similarly being a habitual user of marijuana at the time (T 303). Like the plaintiff, she acknowledged that she knew that it was illegal to drive a car with illicit substances in the bloodstream (T 299) as well as dangerous to get into a car with a driver who was affected by the use of illicit drugs (T 302). She knew that if she herself was participating in drug use, it would be illegal (T 302), as would have been the intention to return to her home for the purpose of ingesting more drugs.

76. Mr Poulos QC draws my attention to Ms Davey’s apparent acknowledgment (T 286) that it was important for her case to try and minimise the amount of drugs that might have been used while she was present in the company of Chloe, Jake and Kurt (T 286.38). I do not think that Ms Davey made that concession. However, it is evident from the information that was provided to the police concerning the accident that all of those present, including the plaintiff and Ms Davey, were careful not to tell the police anything other than absolutely necessary in relation to the circumstances of the accident. I am satisfied that this was because they were aware that they were engaging in an illegal activity, namely purchasing and using drugs. Her evidence must be viewed with caution on the issues in dispute as to liability.

The evidence of Ms Davey

77. Ms Davey, whose evidence commences at T 270, gave evidence in the first tranche of these proceedings, on 7 October 2016. She was the fourth passenger in the motor vehicle with the plaintiff and the two defendants, and, as is noted in the defendants’ written submissions at paragraph 17, is bringing a claim for damages. An application by the defendants for those proceedings to be heard at the same time as these proceedings, brought when these proceedings were part heard, was withdrawn.

78. Ms Davey was on her couch asleep at approximately 11:00pm when the plaintiff, the defendants and another person named Brent Knight came to her front door. Ms Davey’s roommate, Ms Georgia Madden, let them in. Ms Madden said:

“Throughout the night, I’d had a couple of, like, marijuana cones and so did the girls but the boys didn’t, to my knowledge.” (T 272)

79. Ms Madden thought they had participated in this activity approximately an hour after arriving at her home and they remained watching television and participating in the taking of drugs until about 4:00am when Ms Madden and Mr Knight remained in the home while she, the plaintiff and the two defendants got into the car (T 273). She did not observe any other drugs being taken.

80. The reason for leaving the house was “to get Chloe’s iPod from her house at Cameron Park” (T 274). She described the reason for this as follows:

“Q. Did you know why that was so?

A. She wanted to play apps on the iPod, to my knowledge. I’ve hit my head in the car accident, so just a little bit of the memories are a bit fuzzy but just as I’m saying to my knowledge.” (T 274)

81. They drove to the plaintiff’s home and she returned with her iPod in her hand, as well as a pair of pyjamas (T 275). She was asked what happened next and replied:

“A. We got back in the car and we started driving until Lake Road, Glendale, Argy area, and then at that time Jake has gotten out of the car and gone into another house and then got back in the house, and that’s when he has asked to start driving the car.” (T 275)

82. They stopped at the home of the first defendant so that he could obtain a change of clothes (T 275) and it was following this that he asked the second defendant if he could drive his car. The first and second defendants changed seats in the car. Ms Davey described what happened as follows:

“Q. What happened then?

A. That’s when we’ve started driving back to my house in Shortland and yeah, we’ve come all the way to where we’ve crashed until anything has gone wrong.

Q. So from where the car stopped until where the accident happened, are you able to give an indication of distance approximately?

A. I can give you a time distance. It takes about five, ten minutes to get there, probably five minutes at that time of night, but I couldn’t give you kilometres, sorry.

Q. So from the time that Jake started driving until there, how was he driving?

A. He was driving very fine, or otherwise I would have said something. There was nothing wrong with his driving. He wasn’t impaired, wasn’t doing anything silly.

Q. Did you notice anything unusual about Jake prior to him driving the car?

A. No, or I would not have got in the car, stayed in the car.

Q. What happened then leading up to the accident?

A. Just before we’ve crashed, sorry?

Q. Yes.

A. We’ve come to a T intersection and he has come round that corner and gone a little bit sideways. I’ve told him coming up to the corner to be aware of it because I live around the area and know after it has been raining, it’s really slippery.

Q. What words did you use precisely? Can you remember?

A. Not precisely sorry but it would have been something along the lines of ”Watch this corner it’s slippery in the wet”.

Q. Did anyone else say anything at that time?

A. Not at that time but it wasn’t shortly after until Chloe said something.

Q. Do you recall what she said?

A. Yeah she told him to like slow, to slow down.

Q. Do you remember her words?

A. I don’t mean to swear but I’m pretty sure she said “Slow the fuck down”.

Q. How long before the accident was it that she said those words?

A. It was when we hit the first T intersection and the other corner which we actually crashed on is five seconds away, if that. It was when we’ve come around sideways that she said something.

Q. Then what happened?

A. We have come round the other corner which is going that way and we’ve - Jake has over-corrected coming round the corner and gone up onto the median strip and then over-corrected again and we’ve slammed straight into the telegraph pole.

Q. What happened then?

A. I then waited for the smoke to clear out of the car, sorry, and jumped out of the car and Chloe was screaming for some help and I attended to her in the back seat.

Q. Where was she?

A. She was seated right behind me, back left-hand passenger. Sorry keep going?

Q. Yes.

A. And then I, yeah, attended to her, I opened the door up and told her that she should sit in the car like she was a little bit scared and wanted to get out of the car and I’ve walked her over to the gutter which is two metres away and just like sat her or laid her down. And then after that Jake was still sitting in the car for a little bit, like he’s jumped out and Kurt was knocked out in the back seat and I quickly checked on Kurt but then Jake got him out of the car in the long run and I called the ambulance straight after.” (T 276-278)

83. Ms Davey was taken to the hospital but said:

“A. I wasn’t in there for long, probably ten minutes while I got checked out. I was really scared and just wanted to get out of there.” (T 281)

84. Ms Davey made a statement to the police which is Exhibit D:

“4. About 3:15am on the 4th August 2013 I was in a vehicle, a blue Commodore owned by Kurt O’Connell. Also in the car was Chloe Bevan, Kurt and “Maddy”. “Maddy” was driving.

5. I was seated in the front passenger seat. Chloe was in rear seat behind me. Kurt was in the rear seat behind the driver.

6. We had just left Kurt’s at Holmesville and were heading to my house at Shortland to get an iPod of Chloe’s. As far as I know, no one had been drinking or taking any drugs during the evening.

9. [sic] As we were coming down Tilly St, Wallsend, the road bends to the right. It was damp but not raining. I drive this bend regularly and know it is a “tighter” corner than it looks. I said to Maddy “watch this corner”.

10. [sic] We went round the corner. The vehicle is rear end sho [sic] out to the left and the front went to the right. The car went half onto the median strip. “Maddy” tried to correct the skid.

11. [sic] The car then went to the left and collided with a telegraph pole. Then there was a lot of smoke.

12. [sic] Chloe screamed. I got out of the car and tended to her. “Maddy” got out of the car and helped Kurt.

13. I got Chloe out and laid her on the ground. I tended to her. The ambulance got there about five minutes later.

14. The ambulance took me to hospital.

Cara-Lee Davey

09/08/2013”

85. Ms Davey’s statement that no one had been drinking or taking any drugs during the evening is false on her own admissions (T 272, 273 and 296) and she in fact consumed cannabis prior to the accident. Her evidence to the court concerning consumption of marijuana is contradicted by her statement to NRMA investigators dated 22 October 2013, namely that ice was consumed.

86. She was cross-examined about this by Mr Poulos QC at T 287:

“Q. Your statement you said, “I remember we were watching television a while and we smoked a couple of pipes of ice,” and you went on to say, “Ice is very similar to speed but just a more intense version.” Was that your understanding as of October 2013 and before?

A. Yes, that’s what I’ve been told by other people. It’s a very epidemic, unfortunately bad in our society and it’s very well known about.

Q. According to this statement you smoked it yourself. According to this statement. Would you now agree that that’s the case?

A. No.

Q. I want to suggest to you, you know precisely what the effect of smoking ice and methamphetamines is, don’t you?

A. I’ve seen it affect people but not personally.

Q. You’ve never personally smoked it?

A. No. My parents would disown me.

Q. You went on to say:

“I saw everyone have a cone. I also saw Jake have a cone as well. I didn’t want to do it at first but I joined in because everyone else was doing it.”

This is what it says in the statement, you can rest assured that I’m--

A. Yeah.”

87. Even the evidence that Ms Davey gave in chief concerning the reason for the plaintiff wanting to obtain her iPod (namely to play music) was contradicted by this statement:

“Q. You said you got into Kurt’s car and was driving perfectly fine:

“I was in the front passenger seat and Chloe was behind me and Jake was behind me,”

And so on. In the paragraph 10 answer:

“We drove to Cameron Park to pick up Chloe’s iPod. Cameron Park is about 15 minutes from here. We then drove to a house somewhere in Edgeworth to swap the iPod for more drugs, more ice.”

Right. That’s what it says, doesn’t it?

A. Yes.

Q. “Jake went into the house and returned a short time later with some more ice.” That’s what it says, doesn’t it?

A. Yes.

Q. That’s what happened, isn’t it?

A. As I said, to my knowledge I don’t believe that’s what happened. I - it was - this was two months going after the accident and I had hit my head very hard in the accident; I still suffer from cognitive signs. I was scared into being told things that I shouldn’t have been saying. I just--

Q. Who scared you?

A. Chloe’s dad.

Q. Chloe’s dad wasn’t there on the day this statement was taken, was he?

A. That doesn’t mean he doesn’t scare me when he’s not around.

Q. This is, I would suggest to you, a very thin excuse for your inconsistent versions?

A. That’s your opinion.

Q. There’s not an indication anywhere in this statement, I want to suggest to you, that you were suffering from any disability or a head injury that caused you to change your evidence in such a material particular as you did or as you have, I beg your pardon.

A. So? Yeah, you’ve asked me that question.

Q. Let me put this to you: you never told the investigator when he was listening to you talking about this event, you never told him that you had a bad injury?

A. I didn’t know at that point. I--

Q. You didn’t know what?

A. I didn’t know I had a head injury. I had back problems. I had fibromyalgia. I didn’t know any of this. I was left in the blur, in so much pain, and didn’t have any treatment for six plus months. I only found out last week I have a brain injury and in an email of all things.” (T 288-289)

88. Ms Davey was asked about her evidence concerning the iPod at T 291:

“Q. You parked at Bunnings for about five minutes and that’s where you had another pipe of ice. You all had another pipe of ice because I suggest to you, that’s what Jake went in to buy using the iPod, is that right?

A. I don’t know. I can’t say that’s right or wrong.

Q. Did it seem a bit strange to you to drive 15 minutes out to Cameron Park to get an iPod to listen to some music?

A. Not when it came to Chloe.

Q. You had music at your place, didn’t you?

A. No, actually I did. I had no internet, no nothing at that place. I had Foxtel, that’s about it.

Q. But there is a Foxtel channel that has got music on it, isn’t there?

A. I don’t think I had the music channel. I had the premium one which is just, like, a couple of channels.

Q. Look, it must be fairly obvious to you I don’t accept the story about going to get the iPod for some music. I’m going to suggest to you that the whole group had a problem about getting more ice, so the iPod was going to be used as either the price for or something to be left there so that you could get ice.

A. I’m sorry, was that a question?

Q. Yes, that’s what I’m suggesting to you. The whole purpose of getting the iPod was to go to a place where there was a person called Crystal. Can you remember Crystal’s name being mentioned?

A. No.”

89. Although Ms Davey denied that she knew either of the defendants was affected by drugs in the lead up to the accident (T 296-297), she had observed them using drugs over a period totalling nearly six hours and was aware that it was illegal to drive a car with illicit substances such as cannabis, speed or ice in the bloodstream (T 299). She admitted she knew it would be dangerous to get into a car with a driver who was likely to be affected by illicit drugs (T 302).

90. Ms Davey continued to deny that the plaintiff, the defendants and herself were using ice (T 297 lines 14-15). She acknowledged, however, that all of the persons at her place, including the men, smoked cannabis (T 298) and that the process went on for “a while because there were so many people” (T 298 line 25).

91. Ms Davey’s answers to questions in cross-examination were at times implausible (for example, T 302 line 24-25). She responded to a number of questions by saying she did not remember, adding words such as “this is three years ago now” (T 302 line 33). She acknowledged that the plaintiff was a habitual user of marijuana but was more cautious in relation to the plaintiff’s ingestion of ecstasy (T 303). She acknowledged that the contents of Exhibit 1 constituted a request to purchase drugs and disagreed with the plaintiff’s statement that she (Ms Davey) was “really into all of that stuff” (T 77 line 31; T 304 lines 5-27).

92. Ms Davey was also asked about whether or not the plaintiff had lost her job, to which she replied “this is three years ago. I can’t even remember what she was doing” (T 305). A subpoena to Hungry Jack’s issued after Ms Davey gave evidence revealed that both the plaintiff and Ms Davey had been sacked for coming to work affected by drugs. While none of this material was put to Ms Davey, I must be cautious in relation to making any findings as to her credibility in this regard.

93. I should also take into account Ms Davey’s very frank admission about her state of mind at the time of giving evidence:

“Q. Is it possible that the reliability of your evidence has been very heavily affected by these prescription drugs that you’re taking?

A. I think the whole accident and leading up to it I just, yeah, I really don’t feel like what I’m saying is proper, that’s why every time I say to my knowledge and that’s why I keep saying it a lot; it is so hard, I have memory loss. So hard to remember things, especially little conversations that happened three years ago. I’ve had to worry about my health and condition. I’m definitely not thinking about conversations that happened five minutes before the accident or--

Q. Or when the policeman spoke to you?

A. No, I’ve turned upside down and just shock came into play and basically God knows, it’s so hard to remember anything. I think it would be being on the amount of prescription drugs I’ve had. Like it’s ridiculous. What I feel is to the best of my knowledge is the statement I gave straight to the police straight after because that’s as soon as it happened and the least affected by the prescription drugs and the total outcome of the accident.

Q. Excuse me, I thought that was when you had some form of - you suggested in your earlier evidence - you had some form of head injury?

A. Sorry? Some form of energy?

Q. Head injury.

A. Head injury.

HER HONOUR

Q. Yes, you hit your head, remember, in the accident?

A. Yeah, I’ve only been told this like a week ago.

POULOS

Q. You were told that you’d hit your head about a week ago.

A. No, I was only told. I’ve only just had an MRI and my medical needs have gone well and truly out the window. I’m not even looking after myself properly. I don’t know why my psychiatrist thought it was okay for me to come when I can’t recall half of the things that happened.

Q. Just stop for a moment. I want to finish up by saying this: if you had been in any condition like the one you’re in now at the time you spoke to the insurance investigator in October 2013, you would have told him, wouldn’t you?

A. What do you mean? Like--

Q. You would have said, “Oh, look, my memory is no good. I think I’ve injured myself in some way. I’m on drugs that might affect my memory.”

A. I wouldn’t have said that because I can’t just make a self‑diagnosis and say that something--

Q. You never mentioned anything like that.

A. --is wrong when it wasn’t. I knew for a very long time that my memory was affected until it got confirmed, but I can’t just self‑diagnose and say to an insurer investigator whatever you just said, that I, I think I have a head injury. I don’t think it works like that.

Q. Whether or not you had a head injury, if you were having trouble for whatever reason in undertaking to tell the investigator what happened that night, you had every opportunity to say to him, “Look, I don’t really have a clear recollection” or “I’m not feeling well and I’ve got to tell you that I might have hurt myself” or some words to that effect. You didn’t tell him those things, did you?

A. No, I wish I did. I didn’t know I could.” (T 306-308)

94. What this evidence shows is that Ms Davey has minimised her evidence not only in relation to drug taking but in relation to any issue affecting the plaintiff’s claim.

95. Nevertheless, her evidence paints a fairly clear picture of the plaintiff, the defendants, Ms Madden and Mr Knight participating in the taking of drugs and, when those drugs ran out, going to buy more drugs, not once, but on an extended basis. I am satisfied that she knew the purpose of the return by the plaintiff to the plaintiff’s home was for the purpose of obtaining an item of value to use for the purchase of drugs, and not so that she could play music, and that her evidence to the contrary is an attempt to help the plaintiff by minimising her drug-taking.

96. This brings me to the evidence of the defendants, namely the second defendant, Mr Jacob Stuart and Ms Georgia Madden.

The evidence called by the defendants concerning liability

97. I make the following preliminary observations concerning the evidence called by the defendants:

1. The first defendant was not called to give evidence. His whereabouts are agreed to be unknown.

2. Evidence was given by Georgia Madden, who also lived in Ms Davey’s home at the time, as to the drug-taking which occurred in Ms Davey’s home.

3. The evidence of the second defendant is, as is noted in more detail below, objectively corroborated in terms of the plaintiff’s drug use through text messages, photographs and videos, all of which the defendants submit demonstrate that the plaintiff, as well as the second defendant, was an active drug user. This is challenged by the plaintiff, who submits that her evidence should be preferred, on the basis that the second defendant’s evidence is tainted by personal hostility and malice.

4. Corroborating evidence was also called in relation to the plaintiff’s drug-taking generally. This included the evidence of Mr Jacob Stuart.

Georgia Madden

98. Ms Madden was living in Ms Davey’s home and was present when the plaintiff and others were consuming drugs. She was not involved in the accident. She acknowledged using drugs before the accident, including using ice on a few occasions, as well as speed, acid/LSD and marijuana (T 437).

99. Ms Madden knew the plaintiff before the accident and had used drugs with her (T 437-438). Having lived at Ms Davey’s home for about two months before the accident, she had seen the plaintiff frequently during that time. She had seen the plaintiff and the second defendant taking drugs, including pills (T 440).

100. On the night in question she observed the four persons who were involved in the accident smoking ice (T 441) and heard the plaintiff say that the group should go out to get more ice when the ice ran out. She described this conversation as follows:

“Q. What happened?

A. Sorry, the ice had run out at that point and Chloe had said we should go get some more and she'd spoken about that she had some things that she could - I don’t remember exactly if it was swapping for collateral, or it was selling it for that, so exchanging it.

Q. What was “it”?

A. It was either, it was her brother's iPod and it was a Navman that she'd had.

Q. So there were two things possible were there?

327. The plaintiff said she went to live in June 2014 with “Jess”, a person whose surname was never provided (T 39) but that her mother and grandmother were coming to her home to provide home assistance.

328. The plaintiff said that she discovered she was pregnant in November 2014, although Mr Boatswain, the father, says that he discovered she was pregnant in December 2014 (T 168 lines 30-44). It was at this time that he and the plaintiff moved in to Mr Boatswain’s mother’s home (T 168 line 47). As is set out in more detail below, Mr Boatswain said he was doing a great deal of work to assist the plaintiff, including massaging her for “probably four hours a day to five hours a day” (T 170), “running her baths, either going to get her medication, going down to pharmacies to try and get ointment or Nurofen rub, Calm Rub, a lot of different medications to try and numb the pain off” (T 170). There is, however, no evidence of other persons performing these time consuming tasks. Nor was there any evidence given by Mr Boatswain’s parents as to meal preparation, cleaning or the like.

329. The child, Ciara, was born in July 2015. Mr Boatswain said that two months before the child was born they moved into a house in Edgeworth and he was constantly looking after not only the plaintiff but also the home. This continued after the child was born (T 171 lines 20-40). This included vacuuming every single day, wiping down all the benches and doing the washing (T 172 line 48). This continued until January 2016 when the plaintiff and Mr Boatswain separated and returned to his mother’s home for approximately one month. He returned to live in the Edgeworth apartment in February 2016 in order to care for the child Ciara. He did not, however, resume his relation with the plaintiff:

“Q. So were you, prior to January this year, living with Chloe in a de facto relationship at Main Road, Edgeworth?

A. Yes, on and off.

Q. What happened in January?

A. We decided to - actually, so I moved out up to my mum's and we wouldn't be together any more.

Q. How long did you stay at your mother's place for?

A. I stayed at my mum's for a month and a half.

Q. What were the circumstances in which you moved back to Main Road, Edgeworth?

A. That I basically cared for my daughter, that's the whole reason why I'm there.

Q. When did that happen, when did that arrangement come about with Chloe?

A. Just when I got back from my mum's, so in - just before, just before March, I'm pretty sure, February, maybe.

Q. Did you have some conversation?

A. Yeah.

Q. I don't want to hear what the conversation.

A. Yes.

Q. You had a conversation with Chloe did you?

A. Yeah, when I got back down.

Q. And what was the arrangement to go back in?

A. That I would stay in the spare room and care for my daughter. So keep less stress out on her.

Q. What was the arrangement in relation to the relationship with Chloe?

A. She basically goes her way and I have nothing to do in her life and she has nothing to do in my life.” (T 166-167)

335. Mr Boatswain agreed in cross-examination that his role during this period was essentially to look after the child, although he did massage the plaintiff four to five times in 2016 (T 175 line 25). His evidence was that the plaintiff did as much as she could to look after the child including picking her up, changing nappies, taking her in the car and travelling to the plaintiff’s mother’s house in Morisset which was 30 minute drive in terms of distance:

“Q. What does she do for the child?

A. She looks after her as much as she can, so she picks her up, she gives her a bottle whenever she can, as much as she can.

Q. She changes her nappy when you're not there?

A. Yeah.

Q. Have you got a nappy changing table?

A. Yes.

Q. When you're not there, she transports Ciara in the car?

A. Pardon?

Q. Does she transport Ciara in the car?

A. Yes.

Q. When you're not there, she puts her into the child seat in the back?

A. Yes.

Q. You said she goes to her mother's place. That's at Cameron Park is it?

A. No, it's up at Morisett, Cooranbong.

Q. At Morisett?

A. Morisett, yeah.

Q. That's a far way away isn't it?

A. Yeah, it's a 30 minute trip away.” (T 176)

336. Mr Boatswain was shown surveillance footage (Exhibit 14) and maintains that he could observe the plaintiff walking with a limp (T 190-193). He conceded, however, that she could walk quite long distances, such as 400 metres, while pushing the pram:

“Q. Does she have a disabled sticker?

A. Yes. But people with no disabled stickers always park in there.

POULOS

Q. But Chloe can walk quite long distances, can't she?

A. Yes.

Q. She can walk 400 metres down to the junction at Minmi Road and Main Road?

A. Pardon?

Q. She can walk the 400 metres or so down to the corner of Minmi and Main Road?

A. Yes, yep.

Q. And that's the way she would walk, as we see her in the video?

A. Yes and no.

Q. She pushes the pram as well?

A. On the days that I'm not there.

Q. You know that a disabled sticker is supposed to only be given to people that can't walk 100 metres without difficulty, don't you?

A. And that's Chloe, she's in difficult pain every single second.” (T 193)

337. Mr Boatswain acknowledged that there was a real possibility that the plaintiff would complain of pain in order to entice him to perform more household duties than he normally might (T 195) and agreed that the arrangements suited the plaintiff as it meant that he was available to look after the child when required (T 195).

338. Mr Boatswain no longer performs these tasks. They are now performed by Corey Hoover, an aggressive young man who took the side of the plaintiff very strongly when giving evidence, and admitted as much:

“Q. You're firmly on the side of Chloe Bevan when you come to give evidence in this court case, aren't you?

A. Yes.

Q. And you have behaved yourself in a way that is hostile towards persons who you anticipate might be harmful to her case?

A. No, not hostile.

Q. You deny that do you? And you've been outside the Court for days striding up and down and huffing and puffing outside haven't you?

A. No.

Q. Looking at people with a little supercilious smile and trying to intimidate them haven't you?

A. Not intimidate sir.

Q. Well you are the kind of person who would cheerfully punch somebody in the face, in the presence of police aren't you?

A. I didn't punch him.

Q. Yes, well you say that. You pleaded guilty to assault, didn't you?

A. I pleaded guilty to pushing him in the face.

Q. You're on a 12 months good behaviour bond, aren't you?

A. Yes, yes.” (T 816)

339. Mr Hoover’s evidence was that he started going out with the plaintiff in about April 2017, but that he initially did not stay over in her home at Cardiff (T 806 line 12). At this time, the second defendant was living in the premises and Mr Hoover acknowledged that he saw the second defendant not only performing housework but helping with Ciara (T 807 line 17). He also observed them using drugs every two to three days and participating in such activities with them:

“Q. Who was having marijuana?

A. Kurt, Chloe, and myself.

Q. How regular was that in that month?

A. Every second or third day.

Q. Did the marijuana taking continue?

A. Not after that month.” (T 807)

340. For the reasons set out more fully in the sections of this judgment concerning the credit of the plaintiff and Mr Hoover, I do not accept this evidence.

341. After the second defendant moved out of the Cardiff house, Mr Hoover spent more time at the plaintiff’s home (T 812 line 16). It was during this time that he said he observed the plaintiff’s mother or grandmother attending the property two to three times a week. He said he observed the plaintiff’s grandmother doing the dishes and cleaning the floors, while the plaintiff’s mother would perform laundry tasks. The plaintiff’s grandmother would take the laundry back to her house and wash it in her own washing machine on occasion (T 812). At that time, Mr Hoover said, he was carrying out all outdoor activities such as lawn mowing and also doing the dishes, cleaning the floor and carrying out laundry tasks. It was unclear how he shared these duties with the plaintiff’s mother and grandmother without overlap.

342. Mr Hoover maintains that he had performed these duties, in much the same way that a woman performing household duties normally would, from that time up until the present:

“Q. Were you doing anything in that time?

A. Yeah, I'd do the lawns, dishes, the floors, laundry, clean the bathroom, clean all the rooms, basically, like, everything around the house that a female normally does.

Q. From that time, that is, the time Kurt left up to the present time, has there been any change, or have you maintained a--

A. No, I maintain that. That's why, like ‑ I work full time, but, like, I ‑ before this full time job I was labouring for ten hours a day six days a week and I'd come home basically every afternoon and I'd have my routine.” (T 812)

343. His daily routine involves making sure when he comes home from work that Ciara has some food for dinner, cleaning the floor, benches and dishes and carrying out the laundry and mowing the lawn once a fortnight:

“Q. What was your routine?

A. Come home, make sure Ciara's got food, like, for dinner, and then I'd start getting into cleaning the floors, sorry, benches first, floors, and dishes, and then basically any laundry that was to come off the line for that day, and then I'd put that on the lounge and put ‑ hang the clothes out for the next day to dry.

Q. You mentioned mowing lawns. Are you still doing that?

A. Yeah.

Q. How often?

A. Once a fortnight.” (T 812-813)

344. The plaintiff’s domestic activities were described by him as performing minor tasks such as putting dishes in the sink, wiping the benches, helping to tidy rooms and telling Mr Hoover where to put all the clothes so that he does not mix them up (T 813). She also performs the handwashing of Ciara’s bottles.

345. While Mr Hoover gave descriptions of the plaintiff rubbing her neck, complaining of being in pain and having sleepless nights, he acknowledged that he had seen her drive a car and to take Ciara out shopping, as she is shown doing in the surveillance footage, although he maintained that he carried all the groceries and that she did not even push the trolley (T 813 lines 46-48).

346. While Mr Hoover acknowledged he was “firmly on the side of Chloe Bevan” (T 816 line 28), he denied behaving in a hostile way towards the second defendant. There was an encounter between the plaintiff, Mr Hoover and the second defendant caught on CCTV footage outside the court. The court should be cautious in drawing adverse inferences from events of this nature, and I do not propose to make anything of it. However, I am satisfied that Mr Hoover’s advocacy of the plaintiff’s cause resulted in him being less than frank with the court both concerning her ongoing drug use (and for that matter, his own), as well as, of more importance to this case, her level and ability to perform domestic activities. While I consider it irrelevant that he has some prior arrests in relation to drug use, assault and driving while having an illicit drug in his bloodstream (T 819 lines 4-30), his denial that the plaintiff still uses drug (T 840 line 9) and his claim that neither of them participate in this activity is contradicted by the evidence of the second defendant, whose evidence on this subject I prefer. In particular, I accept the second defendant’s evidence concerning the smoking of drugs at the plaintiff’s house after a hiking trip to Mount Watagans (T 835 line 40). The circumstances in which the plaintiff was able to go on this bushwalk are in marked contrast to her asserted inability to perform simple household tasks. Mr Hoover’s impartiality to the plaintiff’s cause including denying that with some imagination it would not be hard to work out a system whereby the plaintiff could undertake domestic activities:

“Q. With a little bit of imagination it wouldn't be too hard to work out a system whereby she worked at waist level, would it?

A. Well, not all things can be hanging on a clothes horse. Like, little things get hung on there, like socks and undies and bras and stuff, not like big shirts and that, cause it's not a big one.” (T 833)

The plaintiff’s grandmother – Mrs Dobosz

347. Mrs Dobosz was adamant that she had only seen the plaintiff under the influence of drugs on one occasion, which occurred before the accident:

“Q. Why didn't you tell us about those activities when you were giving your evidence-in-chief?

A. Well, I wasn’t asked if she was having drugs.

Q. What is knowledge then about Chloe’s drug habits up to the motor vehicle accident?

A. Well, I’d see - I’ve seen her, but I don't know a lot about that.

Q. You’ve seen her. You came to a conclusion after you saw her. Is that right?

A. I’ve--

Q. What do you mean by that? Do you mean to say that you’ve seen her affected by drugs?

A. Only once.

Q. When was that?

A. Back before the accident.

Q. When? Can you describe the circumstance in which you saw Chloe affected by drugs?

A. She just wasn’t herself.” (T 719)   

348. She acknowledged that the plaintiff had used marijuana after the accident “for pain” (T 723) but said that the many medications the plaintiff took would be responsible for the plaintiff being “spaced out” (T 723).

349. Mrs Dobosz spoke glowingly of the plaintiff as having always been a loving granddaughter who behaved well. She knew little about the circumstances in which the plaintiff had left home or had problems with her parents.

350. Mrs Dobosz was only able to give the most general account of the home duties with which the plaintiff needed assistance. Her own advanced years suggest that any contribution she made, beyond helping to look after the plaintiff’s child, was modest. Her evidence is of little assistance to the plaintiff’s home care claim.

The plaintiff’s mother

351. It would be hard to imagine a more capable or compassionate carer than a mother with orthopaedic nurse training, and it is an indication of the degree of the plaintiff’s personal and psychiatric problems, not merely after the accident but also beforehand, that she was unable to remain in the home with obviously caring parents, or to remain with her mother for more than the weeks between her first and second operation following the accident.

352. Mrs Bevan’s support of her daughter was absolute. She represented her daughter in the best possible light as having gainful employment at Michel’s Patisserie at Glendale in 2011 and 2012 (T 584), stating that her daughter was doing two jobs at one time, and that following the cessation of this employment she worked five days a week. She described her daughter as working up to two weeks prior to the accident and Futures Kebabs, where she was working very long hours and being treated, by inference, unfairly by her employers. She described her daughter as sometimes working from 7:30am until 11:00pm:

“Q. Are you telling the Court that your daughter at times worked from 7.30 - and 8 until 11 o'clock at night?

A. She did.

Q. Five days a week?

A. Not five days, but on often occasions sometimes it was 6. She was working a lot of hours.

Q. What sort of earnings was she getting?

A. She was getting $10 cash in the hand, and she was getting very treated very poorly.” (T 589)

353. She described her daughter as having to leave that job because her employers were “very sexist” (T 589) and as looking for employment and handing out resumes as well as seeking work in fast food shops (T 590).

354. As noted in the evidence set out above in relation to the plaintiff, this glowing description is in stark contrast with the plaintiff’s absence of tax returns and dismissal from Hungry Jack’s because she came to work affected by drugs. Mrs Bevan’s evidence is clearly coloured by her love for her daughter.

355. The plaintiff is still in regular contact with her mother, although apparently only once a fortnight or once a week:

“Q. How often does your mother come to your place?

A. She doesn’t come as often as she used to. Because my pain has been worsening over the past probably year she has had to come down and drive down to my place to come pick my daughter up and take her for a few nights when my pain has been too bad, so she doesn’t really come over and visit too much. Maybe like once a fortnight or something, once a week; it changes from time to time.” (T 233)

356. As is the case with the plaintiff’s grandmother, a significant part of the assistance Mrs Bevan is providing amounts to care of the plaintiff’s child. However, assistance with caring for the plaintiff’s child is not a basis for a claim for homecare. Her evidence is of limited assistance only as to the plaintiff’s homecare needs.

The tender of Ms Barbuto’s reports

357. After the evidence was completed and in the course of submissions provided on 27 February 2018, the plaintiff sought to rely upon “the opinions of Ms Barbuto” (written submissions) which are set out in Exhibit K and also in Exhibit 13 as part of the accompanying material Dr Harvey-Sutton reviewed in preparing her report. Ms Barbuto’s two reports were successively served by the defendants on the plaintiff, but the plaintiff never served them back.

358. The plaintiff relies upon s 14 Civil Procedure Act 2005 (NSW) as permitting the court to dispense with the requirements of r 31.28 Uniform Civil Procedure Rules 2005 (NSW). Mr Maxwell also submits that the document is admissible because it was part of accompanying material provided to Dr Harvey-Sutton (Exhibit 13) and the report was “served by the defendant [sic] and there can be considered [sic] to be no prejudice whatsoever to them”.

359. The defendants object to the plaintiff’s tender of both reports as neither had been “served back” as required by r 31.28 UCPR. As a result, the defendants not only lost the opportunity to cross-examine Ms Barbuto but to call evidence in reply, or explore these issues with the plaintiff. (To a degree, some of these concerns as expressed by the defendants are self-serving, in that the plaintiff was in fact cross-examined with some vigour concerning the first of the reports of Ms Barbuto, but there are real difficulties even with this cross-examination, because the report that the plaintiff principally wishes to tender is the second of those reports, prepared after the hearing was adjourned, and about which the plaintiff was not cross-examined).

360. The obligation of a party to serve back reports pursuant to r 31.28 UCPR is explained by the Court of Appeal in Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Ltd (2015) 326 ALR 556 at [162]-[165] as follows:

“[162] The parties did not favour the Court with any information as to what directions were made in this matter. All that is known is that Cummins determined, as it was entitled to do, not to adduce expert evidence (except in respect of a matter not presently in issue). In the absence of knowing what directions if any, were given, the question becomes what Cummins’ entitlement was, under the rules, to rely on the expert reports of the other parties when it had not “served” those reports back on those parties. There is then the further question whether the trial judge erred in rejecting the tender of the balance of Dr Grantham’s report and the joint report.

[163] Rule 31.28 of the UCPR, does not expressly provide that a receiving party, if it intends to rely on another party’s report must “serve it back” on the other parties to the proceedings. However, the rules as a whole and r 31.29 of the UCPR in particular indicate that that is their intended operation. Rule 31.29 of the UCPR cannot operate sensibly unless the report has been served by the party intending to rely upon it.

[164] Accordingly, Cummins was reliant pursuant to r 31.28(3) of the UCPR on the grant of leave to tender the individual expert reports upon which it sought to rely and was thus required to demonstrate that there were “exceptional circumstances” for the purposes of r 31.28(4)(a) of the UCPR. His Honour was not satisfied that it was “exceptional” for a party to abandon part of its case at trial or to decide, during the course of the trial, not to call certain evidence. His Honour considered that was what had happened in this case and the position Cummins found itself in was of its own making, having decided not to adduce expert evidence on the questions that remained in issue.

[165] What constitutes exceptional circumstances for the purposes of the rule was considered by the Court in Yacoub at [66], as follows:

“Another question of construction concerned ‘exceptional circumstances’ in rule 31.18(4). In San v Rumble (No 2) (2007) 48 MVR 492; [2007] NSWCA 259 at [59]–[69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).

(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very 326 ALR 556 at 588 rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198; [1999] 2 All ER 13 (at QB 208; All ER 20 ).

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at WLR 1268; All ER 912–913).

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at WLR 1268; All ER 912–913).

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).””

361. If notice had been given before or even during the proceedings, the defendants could have sought to arrange for cross-examination of Ms Barbuto. Instead, the plaintiff closed her case and attempted to tender the report of Ms Barbuto at the end of the hearing. Rule 31.28(4)(a) UCPR provides:

“(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:

(a) that there are exceptional circumstances that warrant the granting of leave, or…”

362. What are “exceptional circumstances” permitting the tender of a report which has not been served back? This issue was considered by Bellew J in Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (No 1) [2017] NSWSC 1371. Bellew J referred to both r 31.28 UCPR and s 14 Civil Procedure Act 2005 (NSW), as well as s 56 Civil Procedure Act 2005 (NSW).

363. Bellew J first noted a decision which appeared to demonstrate that “exceptional circumstances” could include the granting of leave, and stressed the importance of looking at the issue on a “case by case” basis as well as the forensic decisions made in the course of the trial. His Honour noted at [24]-[25]:

“[24] I have already noted that in the course of submissions, I was taken to the decision of Stevenson J in Owners - Strata Plan 84741 v Nazero Constructions. That decision, it was submitted, provided support to the defendants’ position in the present case. There were, however, some distinguishing features in that case which are not present here, not the least of which was that the parties seeking to rely on the report in question had in fact served it.

[25] In my view there is merit in the proposition advanced by senior counsel for the plaintiff as to the making of forensic decisions in the course of a trial. It is not unusual for counsel, having regard to the way in which a case proceeds, to make a forensic decision that certain evidence is not to be relied upon. Such decisions are routinely made in the course of a trial, depending upon how the evidence emerges. Rule 31.28 is obviously there for a reason. It was clearly open to those representing the defendants to re-serve the report when it was served by the plaintiffs. As I have pointed out, they did not do so.”

364. In the present case, where the decision was not made during the trial but after the plaintiff had closed her case and was in submissions, is an even stronger example. Forensic decisions are often made in the course of the trial, and that includes whether or not to rely upon certain evidence, but that does not apply where the trial evidence has concluded. Rule 31.28 is “there for a reason” as Bellew J points out (at [25]).

365. Nor is it the case that the presence of the report at the back of another report would constitute grounds for saying such a report is “in evidence” already.

366. Accordingly, I am satisfied that leave should not be granted to the plaintiff to rely upon the reports of Ms Barbuto.

Findings concerning past and future home care

367. The peripatetic changing of addresses by the plaintiff prior to these proceedings make any estimate of her past home care entitlements very difficult. She changed her address so often that I had to ask Mr Maxwell for a chronology. There is no evidence from “Jess” or Ms Davey (with both of whom she lived for some time), she has spent only a matter of weeks living with her mother, and her boyfriends and grandmother are witnesses upon whom I would place no reliance.

368. The plaintiff clearly required some form of nursing for a considerable period, but appears to have refused to live with the persons best able to care for her, such as her mother. Mr Stuart’s and Ms Madden’s evidence about the plaintiff’s social activities over this period (such as all-night dancing a matter of weeks after serious surgery) suggest the plaintiff paid little heed to her health generally. The surveillance video does not suggest she is having difficulties of any significance, but I accept that there are tasks such as heavy housework, cleaning and related tasks which would cause her difficulty.

369. The medical evidence is of little assistance. For example, Dr Stening provided a report dated 29 October 2015 in which he set out the following:

“13. Your opinion as to the ongoing effects of the Claimant’s injuries on her ability to engage in pre-accident day-to-day and self-care activities.

The claimant is able to engage in pre-accident self-care activities, but there are limitations in her other day-to-day activities which are outlined in the body of the report.” (Exhibit A, p 109)

370. The onus of proof lies on the plaintiff, and I consider it has not been discharged in relation to past care. Very little of the evidence falls within the usual parameters of a person with injuries receiving assistance of a regular kind with relation to specific tasks. What evidence there is suggests the plaintiff, although complaining frequently of pain, lived her life without regard to it. It is impossible to give realistic estimates in the absence not only of such evidence but of reports from health care professionals upon whose objectivity reliance can be placed. As the plaintiff has failed to discharge the onus of proof, I would not make any allowance for past home care.

371. In relation to future care, the plaintiff faces problems of a different nature. It is unlikely that she will be able to live with her existing family members again, and the circumstances in which she has changed live-in partners and the circumstances in which she ended her friendship with the second defendant are evidence of a volatility in her relationships which is likely to continue. I do not accept Mr Poulos QC’s submission that the plaintiff is likely to settle down and marry Mr Hoover, thereby requiring little or no paid help.

372. The plaintiff’s significant pre-existing psychiatric issues and her confrontational manner mean that, as she gets older, in the absence of a regular partner, the only home care she will have will be paid home care. As she grows older, there will be problems in terms of heavier housework, home repairs, gardening and tasks involving bending and squatting such as cleaning kitchens and bathrooms. As a young woman in her twenties, she has no problems in having partners and friends to call on but, in twenty or so years’ time, she is likely to be living on her own and requiring paid assistance of a significant kind.

373. Mr Poulos QC points out that the plaintiff gave no evidence of any intention to retain paid commercial care if she has no one who can help her (Miller v Galderisi [2009] NSWCA 353). That is certainly a problem, but should not be conclusive. As a young woman in her early twenties in a de facto relationship, the plaintiff is oblivious to the difficulties which will face her in the future as she ages.

374. The plaintiff should receive a buffer for this period, but it is difficult, on the limited evidence before me, to determine what that buffer should be. The amount sought by the plaintiff ($307,380.00) is excessive and unrealistic, but the assessment by the defendants of zero is equally so.

375. Doing the best I can with the limited evidence before me, if I were to award future care as a head of damage, I would allow a buffer of $50,000 for the performance of heavy household duties, gardening and maintenance at a commercial rate.

Past and future economic loss

376. The plaintiff frankly acknowledges the difficulties involved in any past claim for economic loss, putting this at $25,000. She claims future economic loss of $555,285.00.

377. The plaintiff relies upon a report from Steven Buddle, rehabilitation counsellor, (22 December 2014), who described the plaintiff’s work history as follows:

“Ms Bevan attended Lambton High School leaving school in Year 10 aged 15. She said she had difficulties at school and was often acting out and rebelled in light of her difficult family situation. She also explained that she was seriously assaulted at an ice-skating rink when she was 14 and this also affected her behaviour at school. She left school aged 15 in 2010. She explained that she has actually wanted to work and earn money when she was about eight or 10 years old.

Her favourite subjects at school were science, marine biology and maths although she explained she did not learn very much at school.

Ms Bevan said her employment ambitions while at school were to work as a forensic scientist or a marine biologist however, she cannot work as a marine biologist because she has issues with her inner ear and cannot dive. She said her numeracy and literacy skills at school were reasonable. She hoped to be able to complete her HSC and tertiary education later in life as a mature age student.

Ms Bevan said she has worked since 12 years of age. Her first job as a 12 year old was working at the canteen at a go-kart track. She then worked at a cafe as a Waitress and then around the time she left school as a 15 year old she worked at Hungry Jacks for 1.5 years and started a retail certificate there but did not complete it. She then went to work in her uncle and aunty's cafe as a 16 year old. She explained that she actually ran the cafe while the aunty and uncle looked after their young children. She worked seven days a week and did all aspects of running the cafe. Her relatives then ran the cafe whilst she worked as a nanny looking after their two and three year old children from 5.30am to 8pm. She did this for about six months and ran the household doing all of the cooking and cleaning and looking after the two children. After this she returned to run the cafe for her relatives.

Ms Bevan said that she has always been an energetic and fast learner, has done well in employment and has shown good initiative and has been respected by her past employers. Her relatives sold their cafe business. Ms Bevan went to work at Michel’s Patisserie as a Barista and after that she worked as a Retail Assistant at Breakaway Surf Shop. The last job prior to the motor vehicle accident was working in a kebab shop in Newcastle (Futures Kebabs) seven days a week for approximately 70 hours per week. She would open and close the shop working from 6.30am to 5pm doing all aspects of running the shop mostly by herself. Activities included Barista, cooking, cleaning, serving, preparing, making food and pastry and opening and closing the shop. She was working in this capacity at the time of the motor vehicle accident seven days a week. Note she was paid only $10 cash per hour.

If not for the accident Ms Bevan said she would have kept working in this capacity either for the same employer or with another employer in the retail or hospitality industry. She has always wanted to be financially independent. She is now worried about this and her capacity to be financially independent in the future and is worried she will never be able work in a full time capacity again because of her injury. She explained that if she goes for a walk to the shops for 30 minutes she will be out of action for-two days afterwards due to the significant exacerbation of her pain. As well as working very hard before the accident she was very social and enjoyed going to the beach, socialising with her friends and going shopping. This has stopped since the accident and she has tended to push people away and now her social circle revolves around her boyfriend and her boyfriend's family.” (Exhibit A, p 157)

378. Mr Buddle further noted the following in relation to the plaintiff’s pre-injury earnings:

“PRE-INJURY EARNINGS

Gross and net weekly wage inclusive of bonuses and other special allowances and overtime at the time of injury:

The last job prior to the motor vehicle accident Ms Bevan was working in a kebab shop in Newcastle (Futures Kebabs) seven days a week for approximately 70 hours per week. Note she was paid only $10 cash per hour. I have based her pre-injury earning capacity on the average full time income for a Retail Sales Assistant, which is $870.00 per week

Pre-injury earnings are assessed as $870.00 gross per week” (Exhibit A, p 157)

379. Two factors emerge from this description. The first is that the plaintiff has greatly exaggerated the nature and extent of her work history and the second is her unrealistic plans for a future career and employment.

380. Dr Stening provided the following information in his report of 29 October 2015 concerning the plaintiff’s employment:

“14. Noting that the Claimant is only 20 years of age, your opinion as to the ongoing effects of the Claimant’s injuries on her ability to obtain, and maintain employment.

The claimant will have difficulty obtaining and maintaining employment where physical activity is involved. She would have difficulty with prolonged standing or bending. She would not be able to lift more than 10 kg. She would be able to carry out desk duties consistent with her level of education and experience.” (Exhibit A, p 109)

381. These reports, however, predate the plaintiff’s further surgery, as does Dr Hansen’s initial view (in March 2015: Exhibit A, p 370) that the plaintiff would be able to return to work with no significant restrictions. They also predate the plaintiff having a baby in July 2015.

382. The sum of $25,000 would reflect an appropriate amount for the plaintiff’s past economic loss in these circumstances, as I note is submitted by the defendants (written submissions, paragraph 67).

383. I similarly accept the defendants’ figure of $100,000 as a buffer for future economic loss. The sum claimed by the plaintiff amounts to an almost complete denial of any capacity for any kind of work in the future, quantified on the basis of average weekly earnings for New South Wales employees. However, applying the average wage of full time workers to a person such as the plaintiff may be inappropriate (Jones v Bradley [2003] NSWCA 81 at [194]) as would be an assumption that a person with such an employment record would be employed for the rest of her life. Such a finding was considered "fanciful" in Jones v Bradley (at [195], citing Yip v Zreika (2001) 35 MVR 305). Awards of this nature had been set aside on appeal: Goodsell v Murphy (2002) 36 MVR 408; Yates v Jones (1990) Aust Torts Reports 81-009.

384. The plaintiff’s economic loss calculations are not capable of being sustained by the evidence. The plaintiff’s past earning capacity, the best indicator of her future, shows that she would be likely to continue to take sporadic low-paying or cash jobs in the hospitality industry. This is largely because of her longstanding drug use, although her pre-accident personality and psychiatric problems play a role. As to these contributing causes, I note the observations of Ms Defina (Exhibit 13, p. 54) as to the interrelationship between drug use and employment. These factors have long been recognised as relevant to future economic loss, in Harrison v Melhem (2008) 72 NSWLR 380, the trial judge considered that the plaintiff's earning capacity in circumstances where there was a 15 year history of prior drug use meant that the earning capacity component of damages should be reduced by 50% (see also Ghunaim v Bart [2004] NSWCA 28).

385. Courts should exercise greater than usual caution in coming to such a conclusion where a plaintiff is so young that he or she is only on the threshold of a lifetime of work. I have taken into account the plaintiff’s very young age and the possibility that, with maturity, she may cease to have drug use or drug-related problems.

386. As is the case with past economic loss, the buffer of $100,000 for future economic loss should be inclusive of superannuation entitlements (although this is somewhat fanciful in relation to past economic loss, as the plaintiff did not have any superannuation).

Past and future out of pocket expenses

387. Past out of pocket expenses are the subject of agreement ($10,000) and I note the future estimate of $25,000 by the defendant, which I would consider, on the evidence, to be appropriate for ongoing treatment. The amount proposed by the plaintiff of $49,046.50 appears, by its size, to rule out any claim of significance for future surgery. In practical terms, unless there is a need for further surgery, the plaintiff’s future medical expenses will be slight, as she is taking no medication and there is no evidence of regular medical consultations. I also note that the fact that the surgery failed in 2016 does not entitle me to infer, without specific analysis of the percentage of likelihood by the experts, that the operation will fail again.

388. In addition to these past and future out of pockets, the plaintiff would be entitled to s 83 expenses.

Orders

389. I have granted liberty to apply in relation to costs.

1. Judgment for the defendants.

2. Plaintiff pay defendants’ costs.

3. Liberty to apply in relation to costs.

4. Exhibits retained for 28 days.

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Decision last updated: 12 June 2019