Biggs v O'Connor

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2020 00453

AMANDA BIGGS	Plaintiff
v
GARRY RAYMOND O’CONNOR	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5, 6, 7, 12 May 2021
DATE OF JUDGMENT:	13 December 2021
CASE MAY BE CITED AS:	Biggs v O’Connor
MEDIUM NEUTRAL CITATION:	[2021] VSC 826

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NEGLIGENCE – Motorcycle accident – Claim for psychiatric injury by spouse of deceased pillion passenger – Consumption of alcohol by defendant motorcycle rider – Knowledge and acceptance of risk by deceased – Duty of care – Volenti non fit injuria – Gala v Preston (1991) 172 CLR 243 – Roggenkamp v Bennett (1950) 80 CLR 292 – Impact on cause of action by secondary victim considered – Scala v Mammolitti (1965) 114 CLR 153 – Curran v Young (1965) 112 CLR 99 – Jaensch v Coffey (1984) 155 CLR 549 – King v Philcox (2015) 255 CLR 304 – Homsi v The Estate of Mahmoud Homsi [2016] VSC 354 – Assessment of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T Monti QC with A Ryan	Johnstone & Reimer Lawyers
For the Defendant	C Blanden QC with A Wood	Solicitor to the Transport Accident Commission

HIS HONOUR:

On a Sunday afternoon in December 2017 the defendant, Garry O’Connor, the plaintiff’s husband, Shaun Biggs, and two other men, Malcolm Allen and Darren Edwards, played golf together at the Whittlesea Golf Club. Each member of the group consumed alcohol during the round of golf, and afterwards at the clubhouse bar.

Mr O’Connor rode to the course that morning on his new Harley Davidson motorcycle. Before they left at the end of the day Mr Allen and Mr Edwards encouraged Mr O’Connor to leave his motorcycle at the clubhouse and accept a lift to Mr Allen’s house. Mr O’Connor declined, choosing instead to ride his motorcycle, with Mr Biggs travelling as his pillion passenger.

Less than one kilometre from the golf club Mr O’Connor’s motorcycle became out of control, left the roadway and collided with a fence. Mr O’Connor and Mr Biggs sustained serious injuries in the accident.

A short time later Mr Edwards telephoned Ms Biggs and told her that her husband had been injured in a motor vehicle accident and airlifted to the Alfred Hospital. Ms Biggs and the couple’s two sons immediately drove to the hospital where they were told Mr Biggs was undergoing surgery in an effort to stop uncontrolled abdominal bleeding. Tragically the efforts of hospital staff to save Mr Biggs were to no avail, and in the early hours of the Monday morning Ms Biggs was told that her husband had died. It is not in dispute that Ms Biggs suffered psychiatric injury as a result of these circumstances.

Ms Biggs brings this proceeding against Mr O’Connor alleging there was negligence by him in the riding, management and control of his motorcycle which was a cause of injury to her. Mr O’Connor did not contend that his control of the motorcycle satisfied the standard of reasonable care. Rather, he argued that the accident was caused by his intoxication and impaired capacity to control the motorcycle, about which Mr Biggs was aware, and in those circumstances either he did not owe a duty of care to Mr Biggs, or the cause of Mr Biggs’ injury and death was the voluntary assumption by him of the risk of travelling as Mr O’Connor’s pillion passenger. Mr O’Connor argued this meant he did not owe a duty to Ms Biggs to take reasonable care in the riding of his motorcycle so as to avoid causing psychiatric injury to her arising out of the death of her husband, or that Mr Biggs’ death, and therefore the injury to Ms Biggs, was caused by his acceptance of the risk of travelling as a pillion passenger on the motorcycle, and not by any breach of duty owed by Mr O’Connor.

In response Ms Biggs argued Mr O’Connor had not established circumstances that resulted in him owing no duty to Mr Biggs, or that would make out a defence of volenti non fit injuria (‘volenti’) to a claim by Mr Biggs or his estate. Further, Ms Biggs argued the duty owed to her by Mr O’Connor was independent of any duty he owed to her husband, and that her claim was not defeated even if Mr O’Connor established a no duty or volenti defence in respect of Mr Biggs’ injury and death.

If liability was established it was also necessary to determine the damages to which Ms Biggs was entitled for pain and suffering and loss of earning capacity.

The trial commenced with empanelment of a jury on 4 May 2021. However, it became clear, given the complexity of legal arguments raised by the defendant, that it was appropriate to discharge the jury and to proceed with a trial by judge alone.

Liability evidence

Mr Edwards collected Mr Biggs from his home at about 11:30am on the day of the accident, and drove to the golf course.

The group of four teed off to commence their round of golf at about 12:30pm.

The four men teed off together at the start of each hole, and putted together at the end. They diverged between tee and green, depending on where each golfer hit their shots, but for the most part they were in sight of one another. During the round of golf Mr Edwards and Mr Biggs travelled together in one golf cart, and Mr O’Connor and Mr Allen in another.

Each member of the group took alcoholic drinks to consume during the round of golf. Mr Edwards said he had one or perhaps two beers on the front nine, possibly one at halfway, and another on the back nine. He said Mr Biggs definitely had a couple of beers and a spirit on the front nine, a beer at halfway, and more on the back nine, though he could not remember the amount. He said Mr O’Connor and Mr Allen also took alcohol in their cart, and were drinking during the round of golf, but he could not say anything about the quantity of alcohol they consumed.

Mr Allen said he drank three beers on the front nine and a further three beers on the back nine. He saw Mr O’Connor and Mr Edwards each have a couple of drinks, but he could not say what quantity. He was uncertain whether Mr Biggs was drinking.

Mr O’Connor said he thought he took a sixpack of Corona stubbies with him in the golf cart, and that the other men also took drinks. He said he was unsure how many beers he drank during the round of golf, and could not say whether the other players were also drinking.

After they completed their round of golf the four men returned to the clubhouse to an undercover area close to the main bar. Mr Allen said the group dispersed, and he bought his own drinks and spent time talking to other golfers who had played that day. Mr O’Connor did not agree, and said the group sat together at the first table outside the main bar area and drank at least four or maybe five rounds of drinks together. He said Mr Biggs sat on his right, Mr Allen on his left, and Mr O’Connor directly across the table from him. Mr Edwards said because he was driving he did not get a drink for himself when it was his turn to buy a round, and he did not think a drink was bought for him in the last round.

CCTV footage of the bar and outside area of the clubhouse, and the car park, taken on the afternoon of the accident was tendered. The video footage is not continuous. The time stamp on the video when it commences and ends is 16:34 and 19:16, respectively. The tendered video footage runs for about 15 minutes.

The accident happened shortly after 8pm. The last scene on the video shows Mr O’Connor and Mr Biggs on the motorcycle leaving the clubhouse car park. This means that the time stamp on the video is out by one hour, and that the scenes were recorded between 5:34pm and 8:16pm.

A camera above the bar shows Mr Allen purchase a round of five drinks, four stubbies that appear to be beer and one can, at around 5:36pm. Mr O’Connor purchases a similar round at 6:06pm. At 6:26pm Mr Biggs purchased a round of four drinks, at 6:55pm Mr Edwards bought three drinks, and at 7:16pm Mr O’Connor four drinks.

Just after 8:10pm the four men are seen leaving the clubhouse. A camera in the golf club car park shows Mr O’Connor walked to his motorcycle. When the other men arrived they had a brief conversation. Mr Edwards and Mr Allen then walked a short distance to Mr Edwards’ car. As Mr O’Connor prepared his motorcycle Mr Biggs is seen carrying a can from which he occasionally drinks. Mr O’Connor had only one helmet with the motorcycle, which he appeared to offer to Mr Biggs to wear, but Mr Biggs declined. As Mr Edwards drove from the car park he paused close to Mr O’Connor’s motorcycle and there was another brief conversation between the men.

Mr O’Connor could recall little of what occurred at the golf clubhouse that day. When shown the video, he identified Mr Allen buying the first round of drinks, one of which was a Corona beer, that he presumed was his. He could not say who was drinking the other drinks. He said five drinks were purchased because there were five men in the group that day, but he could not remember the fifth person’s name. Mr O’Connor said he could not recall anyone offering him a lift home, or suggesting that he leave his motorcycle at the golf club. He could not recall what he was doing with the helmet, but agreed it looked as if he was offering it to Mr Biggs. He could not say what the conversation was when Mr Edwards paused just before driving out of the clubhouse car park.

Mr Allen said he first raised the issue about whether Mr O’Connor’s motorcycle should remain at the golf club or should be ridden home:

And do you recollect what you said?---I recollect I said to Garry, 'listen, you've had a couple of drinks, I don't know how many you've had, but just to be on the safe side, leave the bike here, and Darren was fine to drive, he only had a couple of beers, and we'll get it the next morning'. And he said to me he was fine.
Having raised it for the first time, was that suggestion repeated on any occasions before you left the golf club? ---No, not by me, no. I just took his answer for it, and I went with that, I thought he was okay, because he was - he wasn't slurring his words, he wasn't falling over everywhere, so I just took it he was fine. So.
And do you recall whether Sean Biggs was present when that discussion occurred?---I think - I'm pretty sure Sean was standing beside the bike, yes.
So just so we're clarifying, I understood you to say first that when the discussion first arose you were still on the verandah of the golf club having drinks. Have I got that right, or am I wrong about that?---I'm pretty sure I walked outside, when he went to get on the bike, and that's when I said that to him.

Mr Allen said he recalled a discussion in relation to a helmet at that point:
What was that discussion?---I said to Garry, 'there's two of youse going on the bike but you've got one helmet', and I recollect he said to me he'll give it to Sean. And at the same time he said he was fine to ride the motorbike up to my place.

Mr Allen said he could not recall a further discussion occurring as he and Mr Edwards were leaving the car park.

In cross-examination Mr Allen said he would have taken action if Mr O’Connor was slurring his words, and would not have let him get on the motorcycle. Mr Allen said he did not know what Mr O’Connor had to drink that day. He agreed he suggested Mr O’Connor leave his motorcycle at the golf course out of an abundance of caution. He said the distance from the golf course to his house was approximately six kilometres.

Mr O’Connor’s wife died suddenly of a brain aneurysm about four months before the accident. Mr Edwards said at one point while they were sitting at the clubhouse Mr O’Connor started talking about his late wife, and became quite emotional, saying she was the love of his life. Mr O’Connor began scrolling through his phone showing photos of his wife. The following exchange occurred with Mr Edwards in examination in chief:

At some stage in this process, did you form a view as to whether or not he ought to be riding his motorbike home?---Once he got emotional about the photos, then yes.
And - - - ?---Being his wife, he just seemed to - he seemed to quiver, his whole demeanour changed.
Do you recollect any discussion amongst the group, amongst the four of you then, about whether he should be riding his motorbike home and as to any alternative that might be put in place?---Yeah, I think Malcolm Allen raised the subject that he wasn't going to - he didn't want him to ride home 'cause he'd had too many, um, and I reinforced that, and that's when I suggested that I take him back to Mal's place, and have a couple more drinks there.
Was Sean part of that discussion?---Yes, Sean was part of that discussion, yes.

Mr Edwards said after they finished their last round of drinks and were walking to the car he and Mr Allen were both adamant that Mr O’Connor should not get on the motorcycle. He said Mr Biggs said ‘It’s okay, I’ll ride with him and make sure that we’re okay’, and both he and Mr Allen said ‘Don’t be stupid’, or words to that effect. He said as he drove from the car park he wound his window down, and both he and Mr Allen said again ‘Don’t be stupid, just wait there’. Mr Edwards said he repeated that he would come back and pick them up.

In cross-examination Mr Edwards said when Mr O’Connor was talking about his wife he was shaking and in tears. He said it was Mr O’Connor’s emotional state that first led him to suggest he should not drive home. The following exchange occurred:

And you say that you and Mal were adamant that he should not get on the motorcycle, and that was at least in part due to the fact that he'd been so emotional about the death of his former wife?---Oh, that and he'd been drinking during the day as well.
And I suppose what was also in your mind was that he may have exceeded .05?---Correct.
And in that event he shouldn't drive the motorcycle?---That's also correct.
And you told His Honour that you and Mal had said to Mr O'Connor, 'don't get on the motorcycle', and Sean Biggs had said 'it's okay, I'll go with him to make sure that he's okay'?---Words to that effect, yes.
Yes. And that was in the setting of Mr O'Connor having, a short time earlier, been emotional about the death of his late wife?---Yes.

Expert evidence about intoxication

Mr O’Connor tendered the report of Dr Morris Odell, dated 20 February 2018, prepared as part of the brief to the Coroners Court of Victoria. Dr Odell is a professor of forensic medicine.

Dr Odell recorded that the motorcycle accident involving Mr O’Connor and Mr Biggs occurred at about 8:20pm, and that a blood sample obtained from Mr O’Connor at 11:10pm, just under three hours after the collision, returned a blood alcohol concentration (‘BAC’) of 0.125%.

Dr Odell said the rate of absorption of alcohol varies between individuals, and is affected by such things as the presence of food in the stomach as well as the type of alcoholic drink taken. Absorption is known to occur very rapidly under ‘social’ conditions, where the subject has an empty stomach or has been eating light snacks.

Dr Odell said the peak blood alcohol level occurs between 30 and 120 minutes after drinking, after which alcohol is eliminated mainly by metabolism in the liver at a rate between 0.01 and 0.02 grams per cent per hour. The rate of metabolism varies according to individual metabolism and drinking experience, and may be higher in seasoned drinkers.

Dr Odell said:

By the time of the blood sample it is reasonable to assume that all the ingested alcohol had been absorbed. In the 2.83 decimal hours between the collision and the blood sample Mr O’Connor would have eliminated an amount of alcohol equivalent to a fall in BAC of between 0.028% and 0.056%. Adding this to the measured figure gives a total amount of alcohol in the body (both absorbed and unabsorbed) at the time of the collision equivalent to a BAC between 0.153% and 0.181%. The actual BAC while driving may have been lower than this range if there was still some unabsorbed alcohol in the stomach at the time which had not yet contributed to the BAC. Any such difference cannot be calculated accurately on the basis of the information available.

Dr Odell gave the following evidence about the effects of alcohol on driving and riding:

Many studies have been conducted to research the effect of alcohol on psychomotor function and on driving and/or riding. Alcohol is known to have an effect on most aspects of human performance at even the most minor blood alcohol levels, although this may vary greatly between individuals especially at levels below 0.10%. It is generally presumed that the skills related to driving are adversely affected at levels above this figure. The relative risk of a collision has been found in several epidemiological studies to rise in an exponential fashion as the driver’s BAC rises. It is increased by a factor of about 10 times at a BAC of 0.10% and about 100 times at 0.20%.

Did Mr O’Connor owe a duty of care to Mr Biggs? Is a defence of volenti non fit injuria established in respect of Mr Biggs’ death?

The legal and factual arguments made by Mr O’Connor which he said should defeat Ms Biggs’ claim were premised on there being no duty of care owed by him to Mr Biggs, or that the true cause of injury to Ms Biggs was the voluntary assumption by Mr Biggs of the risk of travelling as a pillion passenger on the motorcycle ridden by Mr O’Connor in his intoxicated state. It is necessary to consider whether either premise is established.

Authorities and principles

There is an established duty of care owed by a driver of a motor vehicle to other road users.[1]
[1]King v Philcox (2015) 255 CLR 304, 341–342 [98] (‘King’).

Consumption of alcohol may impair the capacity of a driver to exercise care for the safety of others. There may be circumstances in which a passenger’s knowledge of the driver’s incapacity means that no duty of care is owed, or that there is a defence of voluntary assumption of risk.[2] The defendant bears the onus of negativing the existence of a duty, or establishing a defence of voluntary assumption of risk.[3]
[2]Gala v Preston (1991) 172 CLR 243, 253–254 (‘Gala’); Joslyn v Berryman (2003) 214 CLR 552, 560 [20]; Imbree v McNeilly (2008) 236 CLR 510, 527.
[3]Roggenkamp v Bennett (1950) 80 CLR 292, 300 (‘Roggenkamp’).

In Gala v Preston (‘Gala’),[4] the respondent passenger consumed approximately 40 scotches, and the appellant driver an equivalent amount of alcohol, during an afternoon spent drinking together at a hotel. The parties formed the intention to steal a motor vehicle to go on a ‘joy ride’. Later in the evening the stolen vehicle left the highway and struck a tree. The trial judge found that at the time of the accident both the respondent and the appellant had a blood alcohol concentration in excess of 0.2%. After analysing the earlier decision of the Court in Cook v Cook,[5] the majority said:
[4]Gala (n 2) 253–254.
[5](1986) 162 CLR 376.

Their Honours went on to point out that special and exceptional circumstances, such as those of that case, may transform the relationship between a driver and a particular passenger into a special or different class or category of relationship. … Likewise, the onus lies on the party who asserts that, by reason of special and exceptional facts, the ordinary relationship of a driver towards a passenger is transformed into one which lacks the requisite relationship of proximity to give rise to a relevant duty of care.[6]

Undertaking that analysis on the basis of the facts in Gala, the majority said:
When attention is given to the circumstances of the present case it is difficult to see how they can sustain a relationship of proximity which would generate a duty of care. The joint criminal activity involving the theft of the motor vehicle and its illegal use in the course of a spontaneously planned ‘joy ride’ or adventure gave rise to the only relevant relationship between the parties and constituted the whole context of the accident. That criminal activity was, of its nature, fraught with serious risks. The consumption by the participants, including the first appellant, of massive amounts of alcohol for many hours prior to the accident would have affected adversely the capacity of a driver to handle the motor vehicle competently. Despite the surprising conclusion of the primary judge, each of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest. In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care.[7]

The Court determined in the circumstances of that case that the appellant did not owe a relevant duty of care to the respondent.

[6]Gala (n 2) 253–254 (citations omitted).

[7]Gala (n 2) 254.

To make out a volenti defence the defendant driver must establish that the injured passenger knew of the risk, fully appreciated the danger that it involved, and voluntarily accepted the whole risk.[8] The question is when does accepting a ride with knowledge of a driver’s intoxicated condition imply acceptance of the legal risk of any future negligence. The test is subjective. What is important is knowledge of the risk and full appreciation of the danger. In cases of a passenger suing an intoxicated driver it has been said that it will be a rare case where the defence succeeds.[9]
[8]Roggenkamp (n 3) 300; Canterbury Municipal Council v Taylor [2002] NSWCA 24 [144].
[9]Suncorp Insurance & Finance Limited v Blakeney (1993) 18 MVR 361, 368 (‘Suncorp Insurance’); Radford v Ward (1990) 11 MVR 509, 515 (‘Radford’); Wills v Bell (2004) 1 Qd R 296 [56] (‘Wills’).

In Roggenkamp v Bennett (‘Roggenkamp’),[10] the driver of the car and the appellant passenger began drinking alcohol together at midday, and went on a pleasure trip visiting a number of hotels at which they continued drinking. They had each consumed at least 18 drinks before they arrived at the final hotel. When they left the hotel they were walking unsteadily and holding onto one another. The High Court concluded there was an inescapable inference that the appellant knew and appreciated the danger of the situation because he was aware the driver was very drunk and was showing obvious signs of intoxication. In those circumstances the Court concluded the appellant voluntarily consented to take the risk of an accident occurring.
[10]Roggenkamp (n 3).

In Radford v Ward (‘Radford’), the appellant driver and respondent passenger spent an evening drinking together at a hotel.[11] Evidence of a forensic physician supported a conclusion that the appellant’s blood alcohol level would have been about 0.25% at the time of the accident which caused the respondent injury. After noting that there was no yardstick to measure what are facts which amount to special and ‘exceptional circumstances’, Murphy J said:

In the present case, how much alcohol — or how much stagger — would be sufficient to take the case out of the ordinary and make the circumstances special and exceptional? Some would say that anyone who voluntarily becomes or remains a passenger in a vehicle, to be driven by a driver who is known by the passenger to have been drinking at all, cannot complain, if injured in an accident in which the driver is at fault. Could such circumstances be special and exceptional? If not, could they become so? If so, when?
I do not believe that the evidence in the present case could have supported a finding of “special and exceptional circumstances” so as to “transform the relevant relationship”. There was no evidence that the plaintiff knew, on becoming a passenger, that the defendant was altogether or at all incapable of exercising the care in driving to be expected of the hypothetical reasonable driver. In Cook v Cook the knowledge of incapacity was fundamental to the principle expressed. Unless the plaintiff's knowledge of the defendant's incapacity was either common ground or established by evidence, application of the Cook v Cook principle was not open. In the present case the jury found that the plaintiff did not know that the defendant was under the influence to the extent that his ability to drive or control the motor vehicle was impaired and that therefore there was a risk of the vehicle being involved in a collision.
All of the considerations set out above lead me to conclude that in the present case, the judge was correct in the approach which he took to the matter. There could be no “special and exceptional circumstances” unless at the very least the plaintiff was aware that the defendant driver was so incapacitated that in travelling with him, he could not expect to receive the care of a reasonable driver and none the less voluntarily exposed himself to the risk of injury from a collision.[12]

[11]Radford (n 9).

[12]Radford (n 9) 519.

In Suncorp Insurance v Blakeney,[13] the respondent was a passenger in a car being driven by Mr Scheulen when it left the road and crashed into a telegraph pole. Mr Scheulen was killed and the respondent seriously injured. The respondent and the deceased had been together for a six-hour period during which they consumed alcohol, resulting in the deceased having a blood alcohol level of 0.302%. The trial judge concluded Mr Scheulen must have been notably unsteady and alcohol affected. After referring to the test set out by the High Court in Roggenkamp, Pincus JA referred with approval to what was said by Campbell CJ in Wilkinson v Joyceman:[14]

I am persuaded that the doctrine of volenti should be applied with extreme caution and only in rare cases.

Pincus JA then said:
Attempts to define precisely the stage at which the passenger's knowledge of the drunken driver's condition and the extremity of that condition combine to require the dismissal of the action have not produced any easily applicable formula. It is unclear what criteria are to be used in determining whether the passenger voluntarily accepted the risk or, as it was put in Wilkinson v. Joyceman, consented to take the legal risk of injury upon himself: see per Campbell CJ at 578. Cases of this kind seem to form a continuous range of sets of facts, with the mildly intoxicated driver at one end and the hopelessly drunken driver at the other; there is a degree of artificiality in deeming the passenger, at some point along that range, to have consented to take the risk of injury. There is ground for thinking that each of the defences of volenti and of failure to prove a breach of duty is practically a dead letter in cases of this kind, where the defence is that the driver was drunk and the plaintiff passenger knew it.[15]

[13]Suncorp Insurance (n 9).

[14](1985) 1 Qd R 567, 576.

[15]Suncorp Insurance (n 9) 368.

In Whitfield v McPherson,[16] the Queensland Court of Appeal concluded a volenti defence was bound to fail in circumstances where the appellant driver and respondent passenger drank alcohol in company for three hours, with the driver having a blood alcohol concentration of 0.149%. Lee J said:

In general, however, I think that it can be said that where, despite some incapacity or inability on the part of the defendant, some measurable degree of care remains exercisable by him one should be extremely wary in applying the defence. More often than not in such a case, the plaintiff will still maintain an expectation that the driver will drive with some degree of prudence and while that expectation remains he cannot be said to have voluntarily assumed the risk of an accident occurring. If, judged by reference to the applicable standard, the defendant is found to have acted unreasonably and if that conduct is found to have caused or materially contributed to the plaintiff's injuries, it is difficult without more appearing to see any legitimate foundation for the inference that the plaintiff has absolved the defendant from the foreseeable consequences of his negligent conduct. By merely accepting a ride with a person whom he knows to be intoxicated it cannot be said that the passenger gives license to the driver to drive the vehicle in any fashion he sees fit, no matter how recklessly or wantonly that may be.[17]

[16](1995) 21 MVR 18 (‘Whitfield’).

[17]Whitfield (n 16) 24–25.

In Wills v Bell,[18] the driver and his passenger drank beer together from about 8pm on the day before the accident until 4:30am the next morning, and again from mid-morning until about 5pm when they left together in a car. The accident in which Mr Wills was injured occurred at approximately 7:30pm. The trial judge accepted expert evidence that at the time of the accident Mr Bell’s likely BAC was about 0.27%. The trial judge accepted evidence that Mr Bell did not appear obviously drunk, and that the only indicia of intoxication immediately after the accident were the smell and alcohol and some slurring and slowness of speech, which suggested to the attending senior constable of police that Mr Bell was not perceptibly so drunk as to be thought incapable of driving safely. The Queensland Court of Appeal unanimously dismissed the grounds of appeal that the trial judge was in error in rejecting the defences of no duty of care and voluntary assumption of risk.
[18]Wills (n 9).

Submissions
Ms Biggs

There was no evidence that Mr Biggs was consistently in the presence of Mr O’Connor throughout the day, or that he was aware of the amount of alcohol Mr O’Connor consumed.

There was no evidence that Mr O’Connor exhibited any obvious signs of intoxication. In fact the evidence is to the contrary.

Mr O’Connor has not discharged the evidentiary or legal onus making out the defence.

Mr O’Connor

Dr Odell’s evidence established that at the time of the accident Mr O’Connor’s BAC was between 0.153% and 0.181%.

Mr Biggs and Mr O’Connor were in each other’s company from about 12:30pm until after 8pm. Although they played the round of golf from different carts, it is clear they played together in a group and were never too far apart and generally within each other’s sight. They both consumed alcohol during the round of golf, and for roughly two and a half hours after completing their round. It is beyond doubt that Mr Biggs knew Mr O’Connor was affected by alcohol such as to impair his capacity to control the motorcycle. Mr Biggs was party to the numerous attempts by Mr Allen and Mr Edwards to stop him and Mr O’Connor from going on the motorcycle. Mr Biggs refused the offer of a helmet, mounted the motorcycle while still holding a drink in his hand, and voluntarily elected to become a pillion passenger.

Analysis

On the basis of Dr Odell’s evidence there are two reasons why Mr O’Connor’s BAC at the time of the accident is uncertain. First, it is not known how the type of alcohol consumed by Mr O’Connor affected the rate of absorption, what food he ate that day and when, and what his natural rate of absorption was. Second, the time of Mr O’Connor’s last drink is not known. While the evidence does suggest, as Dr Odell noted, that the last round of drinks was purchased at 7:17pm, the footage shows that Mr Allen put an empty stubby in the rubbish as he was leaving the clubhouse at 8:11pm, and Mr Biggs was still drinking his last drink. It seems likely Mr O’Connor finished his last drink shortly before leaving the clubhouse.

Dr Odell states that peak BAC occurs between 30 and 120 minutes after drinking. Depending on Mr O’Connor’s rate of absorption of alcohol that day, and the time of his last drink, peak alcohol may have occurred a considerable time after 8:20pm. If that were the case then the peak BAC would be in a range lower than that submitted by Mr O’Connor, and the level at the time of the accident would be lower again.

By way of example, if Mr O’Connor consumed his last drink at 8pm he may not have reached his peak BAC until about an hour after the accident. This assumes a rate of absorption at about the midpoint of the range suggested by Dr Odell. In the 1.83 hours between peak BAC and the blood sample, Mr O’Connor would have eliminated alcohol equivalent to a fall in BAC of between 0.018% and 0.036%, thus leading to a peak BAC at 9:20pm in the range 0.143% and 0.161%. In that example Mr O’Connor’s BAC at the time of the collision would have been further lowered by the amount of alcohol he absorbed between 8:20pm and 9:20pm.

Given these uncertainties I do not accept that it is established that Mr O’Connor’s blood alcohol level at the time of the accident was in the range 0.153% to 0.181%. I conclude it is likely that at the time of the collision Mr O’Connor’s blood alcohol reading was at or possibly above 0.125%, but I am unable to find by how much.

Mr O’Connor was unable to say whether he drank all six stubbies of beer he took with him during the round of golf. Mr Allen, who was travelling in the same golf cart, said he saw Mr O’Connor have ‘a couple of drinks’, but could not say how many. Mr Edwards, who travelled in the other cart with Mr Biggs, said he was aware Mr O’Connor was drinking during the round of golf but could not say what quantity of alcohol he consumed.

While the group of four played the round of golf together, and were generally in each other’s company at each tee and green, it is likely they were separated by some distance on many of the fairways, and would not always have been attentive to what the other members of the group were doing. The men had made their own arrangements as far as alcohol was concerned, and were not sharing drinks, or in a shout.

I conclude it is likely Mr Biggs was aware Mr O’Connor was drinking alcohol during the round of golf, but not of the amount he consumed.

Five rounds of drinks were purchased by members of the group in the period of about two and a half hours they were at the clubhouse bar. It is likely one of the stubbies of beer in each round was bought for and consumed by Mr O’Connor. Mr Edwards’ evidence that the group sat together at the clubhouse, and purchased drinks in rounds, is consistent with what is seen on the video. I prefer Mr Edwards’ evidence to that of Mr Allen, and conclude it is likely Mr Biggs was aware of the number of drinks consumed by Mr O’Connor at the clubhouse.

There is no evidence of any outward sign that Mr O’Connor was intoxicated, or that his functional capacity and judgement were affected by consumption of alcohol. Mr Allen said Mr O’Connor was not slurring his words or ‘falling over everywhere’. Mr O’Connor is seen on the video walking normally, not stumbling, swaying, or appearing unsteady on his feet. Mr O’Connor put some items, probably golf balls, in a compartment on his motorcycle without apparent difficulty. Mr Edwards said Mr O’Connor became emotionally upset and ‘seemed to quiver’ while they were at the clubhouse, but this was when he was talking about his recently deceased wife. There is no evidence Mr O’Connor’s companions related his emotional upset to the effects of alcohol consumption.

Mr Allen and Mr Edwards both suggested Mr O’Connor leave his motorcycle at the golf club and accept a lift home. However, Mr Allen agreed he made the suggestion out of an abundance of caution, that Mr O’Connor said he was fine, and that he thought Mr O’Connor was okay to ride his motorcycle. Mr Allen said if he was concerned he would not have let Mr O’Connor get on his motorcycle.

Mr Edwards’ evidence indicates a stronger level of concern about Mr O’Connor’s capacity to ride his motorcycle. Mr Edwards’ said that he and Mr Allen recommended that Mr O’Connor not ride his motorcycle on three occasions: first, when they were sitting at the clubhouse; second, when they were walking to his car and stopped at Mr O’Connor’s motorcycle; and third, as he paused when leaving the car park. However, Mr Edwards agreed the recommendation was in part because Mr O’Connor had become so emotional about the death of his wife, and that it was also in his mind that Mr O’Connor’s BAC may exceed 0.05%. In other words, Mr Edwards’ concern appears to have been, at least in part, that because of his emotional state, and the risk that if pulled over by police his BAC would exceed the legal limit resulting in penalty, Mr O’Connor should not ride his motorcycle.

I accept Mr Edwards’ evidence that there were three discussions in which it was recommended to Mr O’Connor that he should not ride his motorcycle from the golf club. The first discussion was not captured on video. The second discussion was brief. The four men were at the motorcycle for less than 20 seconds. There was no remonstration or other sign of Mr Edwards and Mr Allen forcibly or strongly making the point to Mr O’Connor that he should not ride his motorcycle. The third discussion was even briefer. Mr Edwards’ car paused for less than 15 seconds as it was being driven from the car park. Gestures by Mr O’Connor and Mr Biggs indicate there was some joking in the exchange that occurred.

Mr Biggs was present and must have heard the discussions about whether Mr O’Connor should ride his motorcycle.

There is no direct evidence of Mr Biggs’ knowledge of the degree of Mr O’Connor’s intoxication. I infer Mr Biggs’ perception of the extent to which Mr O’Connor’s functional capacity and judgement were affected by consumption of alcohol is likely to have been in the same general range as that of Mr Allen and Mr Edwards. Mr Biggs would have seen that Mr O’Connor was not exhibiting any outward signs of intoxication. Mr Biggs may have thought Mr O’Connor should not ride his motorcycle ‘out of an abundance of caution’, because he was emotionally upset about his wife’s death, and risked exceeding 0.05% BAC if pulled over by police. It is likely Mr Biggs heard Mr O’Connor say he was fine to ride. Like Mr Allen, Mr Biggs’ perception may have been that Mr O’Connor was okay to ride his motorcycle. Mr Biggs would have been aware that the recommendations by Mr Edwards and Mr Allen that Mr O’Connor not ride his motorcycle were made in this context and, at least in respect of the two conversations that occurred in the car park, were communicated briefly and were not accompanied by any remonstration or obvious attempt to prevent Mr O’Connor from riding his motorcycle.

Mr Biggs accepted the risk of riding as a pillion passenger without a helmet. However it is not alleged that risk eventuated and resulted in his injury and death. Agreeing to ride without a helmet may be consistent with a general attitude to the acceptance of risk. On the other hand it may also be consistent with Mr Biggs thinking Mr O’Connor was in a condition to ride his motorcycle safely.

I conclude the evidence does not approach the level of special and exceptional circumstances that would negative the duty otherwise owed by Mr O’Connor to Mr Biggs, or establish the elements of a volenti defence. The evidence does not support an inference that Mr Biggs knew, when he chose to ride as a pillion passenger on the motorcycle, that Mr O’Connor was so intoxicated as to be altogether incapable of exercising the care to be expected of a reasonable rider. The evidence does not support an inference that Mr Biggs believed Mr O’Connor to be so grossly intoxicated that he should not maintain an expectation Mr O’Connor would ride the motorcycle with some degree of prudence, or that he voluntarily accepted the risk of riding with Mr O’Connor on the motorcycle in that condition.

Mr O’Connor did not dispute that his riding of the motorcycle fell below the standard of reasonable care. Because Mr O’Connor has not made out either premise on which his defence is based, Ms Biggs’ cause of action for damages against him succeeds.

Assuming Mr O’Connor succeeded in establishing no duty or volenti in relation to Mr Biggs’ death: Was there a duty owed by Mr O’Connor to Ms Biggs? Was breach of that duty a cause of injury to Ms Biggs?

Because Mr O’Connor has not established the premise on which his defence of the claim brought by Ms Biggs was based it is not strictly necessary to consider what the outcome would have been had he succeeded. However, given the comprehensive submissions by the parties, it is appropriate that I consider the legal effect had Mr O’Connor succeeded.

Authorities and principles

The liability of a road user for mental injuries suffered by a secondary victim resulting from a transport accident was considered by the High Court in Scala v Mammolitti (‘Scala’).[19] The respondent’s husband was injured in a transport accident and sued the appellant for damages for negligence in the driving of the car concerned in the collision. After a trial, judgment was entered for the appellant in the husband’s action. The respondent then sued the appellant for damages alleging that his negligence was a cause of serious injury to her husband, resulting in her suffering nervous and mental shock. The question on appeal was whether verdict for the appellant in the action brought by the respondent’s husband was a complete answer to her claim. That question was considered in the context of s 4(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). Taylor J said of the state of the law immediately before the enactment of that provision:
[19](1965) 114 CLR 153.

After a number of vicissitudes the liability of a person for injury by nervous and mental shock came to be governed by the same principle as liability for other injuries. There was no liability for nervous and mental shock unless it was caused by breach of a duty to take reasonable care. But such a duty was owed to every person who, it could reasonably be foreseen, was likely, as a result of a careless act, to suffer injury of the character in question. It has been suggested that the duty to take care extended over a somewhat wider field but that damages could be recovered only if they were reasonably foreseeable (see King v. Phillips …). But this is of little consequence in the discussion of the present problem for it is enough that liability for damages for nervous and mental shock arose out of the breach of an independent duty owed to the person suffering such injury; it was in no way dependent upon the rights of any other person.[20]

His Honour continued:
Before the section a wife might recover damages' for nervous or mental shock where her husband had been injured by the negligence of a third person, but only if it could reasonably have been foreseen by the wrongdoer that injury of that character was likely to ensue. Her action was for the breach of an independent duty owed to her and the failure of her husband to recover was not fatal to her claim.[21]

Windeyer J agreed, and said:
It is, I consider, implicit that the act, neglect, or default that caused death, injury or peril was in some sense wrongful. But that does not mean that, if a member of the family, who has suffered mental or nervous shock, brings an action, the defendant in that action can only be found liable to the plaintiff if he has been found to be liable or is liable in damages to the representatives of the person that he killed, or to the person whom he injured or put in peril. An action brought by the representatives, or by the injured man himself, might fail for a variety of reasons—such as release, satisfaction, the statute of limitations, contributory negligence—that would not mean that the conduct complained of was not wrongful.[22]

[20]Ibid 159 (citation omitted).

[21]Ibid.

[22]Ibid 162–163.

The principle that the duty to avoid psychiatric injury to a secondary victim was independent from, and not to be regarded as secondary to or derived from, the duty owed to the primary victim was restated by Brennan and Deane JJ in Jaensch v Coffey (‘Jaensch’),[23] and by Leeming JA in South West Helicopters Pty Ltd v Stephenson.[24] In Jaensch, Deane J considered what limitations should be imposed on the ordinary test of reasonable foreseeability in cases of mere psychiatric injury, and said:

The limitations upon the ordinary test of reasonable forseeability in cases of mere psychiatric injury are conveniently stated in negative form. Two of them have already been mentioned. The first of those is that reasonable foreseeability of risk of personal injury generally will not suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury: a duty of care will not arise unless risk of injury in that particular form was reasonably foreseeable. The other is that, on the present state of the law, such a duty of care will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury; there is no need to consider here whether this limitation should be more widely stated as excluding such a duty of care unless the carelessness was in any event wrongful in the sense that it involved a breach of a duty of care owed to the person who suffered or was at risk of physical injury: cf., e.g., a case where a defence of volenti non fit injuria is available against that person and see, generally, Scala v. Mammolitti ... Both are satisfied in the present case and it is unnecessary to determine whether each or either of them is properly to be seen as part of the requirement of proximity of relationship or as constituting some other and special controlling rule based on policy considerations. As at present advised, I am inclined to see them as necessary criteria of the existence of the requisite proximity of relationship in the sense that, for policy reasons, the relationship will not be adjudged as being "so" close "as" to give rise to a duty of care unless they be satisfied. What is of critical importance for the purposes of the present appeal is the identification of the content of any further criteria included in the general line of demarcation which can, in the light of the cases, properly be drawn "between what is and is not a sufficient degree of proximity" in cases of mere psychiatric injury …[25]

[23](1984) 155 CLR 549, 560 (Brennan J), 604 (Deane J).

[24](2017) 98 NSWLR 1, 75 [288].

[25]Jaensch (n 23) 604–605 (citation omitted).

The case of Gifford v Strang Patrick Stevedoring Pty Ltd (‘Gifford’)[26] arose out of the claim for damages for negligently inflicted psychiatric injury brought by the children of a man who was killed in an accident at work. The issue on appeal was whether the man’s employer owed a duty of care to the children. Gleeson CJ concluded that at common law the respondent employer owed the appellant children a duty of care, and said:

However, as a class, children form an obvious category of people who might be expected to be at risk of the kind of injury in question. Where there is a class of person, such as children, who are recognised, by the law, and by society, as being ordinarily in a relationship of natural love and affection with another class, their parents, then it is not unreasonable to require that an employer of a person in the second class, whose acts or omissions place an employee at risk of physical injury, should also have in contemplation the risk of consequent psychiatric injury to a member of the first class.[27]

Gummow and Kirby JJ affirmed the conclusion of the Court in Scala, and found that the cause of action of the children was not dependent on proof of the existence of liability to the father.[28] Their Honours concluded that the respondent employer’s duty of care to the appellant children was, at most, coextensive with the duty it owed to their father.[29] Gummow and Kirby JJ said:
[91] In Hawkins v Clayton, Gaudron J observed that, in attempting to ascertain the existence of a duty of care to avoid causing economic loss, ‘‘somewhat different’’ factors may arise where ‘‘the act or omission complained of amounts to an interference with or impairment of an existing right which is known or ought to be known to the person whose acts or omissions are called into question’’ than where the loss ‘‘is occasioned without infringement or impairment of an otherwise recognised right’’. We agree with that statement. By analogical extension, the common law will more readily impose a duty of care to avoid causing psychiatric harm to the child of an initial victim where the conduct of the defendant which is sought to be impugned constituted an infringement of otherwise recognised rights in the initial victim.
[92] The respondent owed the appellants a duty of care to take reasonable care to avoid causing them a recognisable psychiatric illness as a consequence of their father’s death in the course of his employment. Especially in circumstances where negligence by the respondent to the father is admitted, it is clearly arguable that the respondent breached these separate duties of care it owed to the appellants.[30]

[26](2003) 214 CLR 269.

[27]Gifford (n 26) 277 [12] (Gleeson CJ). See also Gifford (n 26) 281 [27] (McHugh J), 300 [86] (Gummow and Kirby JJ).

[28]Gifford (n 26) 296 [71].

[29]Ibid 301–2 [90].

[30]Gifford (n 26).

In Curran v Young (‘Curran’),[31] the respondent, who was the husband of a woman injured in a motor vehicle accident, brought an action against the appellant driver based on negligence for loss of consortium and compensation for expenditure incurred as a consequence of his wife sustaining personal injury. The wife’s own action for damages was dismissed because she failed to take adequate care for her own safety. The appellant argued the husband’s claim was derived through his wife, and therefore could not succeed. Barwick CJ said:

[3] In my opinion this submission is clearly erroneous. The action of the husband of its very nature is quite independent of that of the wife and is in no sense dependent on her ability to obtain a verdict for herself against the defendant. Although the husband's action may be grounded upon the same act of the defendant as would be an action by the wife for her own injury, the damage is entirely different. He sues, not for the injury to her, but for the damage suffered by himself by the wrongful act of the defendant, albeit because she was injured thereby. The act of the defendant causing injury to the wife in breach of the defendant's duty to her does not lose its tortious character because she is unable by reason of her own conduct to succeed in an action against the defendant. Its tortious character remains, both as against the wife and as against the husband. So does its causal relationship both to the injury to the wife and the damage to the husband.

In the same case Taylor J considered the history of the defence of contributory negligence, and the decision in Chapman v Hearse,[32] and said:
It is unnecessary to repeat what was then said but it is necessary to observe that proof of contributory negligence on the part of a plaintiff does not operate to destroy the tortious character of the defendant's negligence; it merely provides the latter with an answer to the plaintiff's claim. Indeed if the second ground which it seems was taken by Grant J is sound then it establishes that in cases such as the present not only is the wife's contributory negligence an answer to a husband's action but would also constitute an answer to an action by a passenger in the car who happened to be injured in the collision. This is clearly erroneous and this line of reasoning must be rejected.[33]

[31](1965) 112 CLR 99.

[32](1961) 106 CLR 112.

[33]Curran (n 31) [2].

Mr O’Connor relied heavily on the decision of J Forrest J in Homsi v The Estate of Mahmoud Homsi (‘Homsi’).[34] The defendant in that case died in a motor vehicle accident caused solely by his negligence. The plaintiff was the defendant’s mother, who suffered severe psychiatric injury when she learnt by telephone of her son’s death. The plaintiff sought to recover damages from the defendant’s estate. J Forrest J formulated the novel duty question in that case as follows:
[34][2016] VSC 354.

Did Mahmoud owe Iman a duty of care in the driving of his motor vehicle to ensure that he did not suffer injury or death that may result in psychiatric injury to his close relatives and, particularly, Iman?

His Honour observed it was clearly established that in psychiatric injury cases a duty of care may extend to family members who do not witness the accident but suffer psychiatric injury as a result of negligently inflicted injury to a close relative. Having referred to the statement of Brennan J in Jaensch referred to in paragraph 65 above, that the duty to such a victim is not to be regarded as secondary to or derived from the duty owed to the primary victim, his Honour said:
[59]     However, in each of the secondary victim cases, one constant is the presence of an established pre-existing duty between the tortfeasor and the primary victim, which gives rise to the discreet duty owed to the secondary victim: in Pusey and Tame and Annetts and Gifford by an employer; in Jaensch and King by a road user.
…
[61]     The common law also recognises a discrete duty in relation to psychiatric injury sustained by close relatives (or those in some other relevant relationship, such as fellow employees or rescuers) of a person injured or killed by a tortfeasor’s negligence. Such a duty is dependent upon an established and pre-existing duty of care being owed by the tortfeasor to the primary victim.
[62]     But the common law goes no further. Even accepting that the categories are never closed, the common law does not recognise a general duty on the part of the driver of a motor vehicle (or, for that matter, any person who does not take sufficient care for his or her safety) not to cause psychiatric injury to a close relative as a result of injury to himself or herself. The relationship between mother and son and foreseeability that the mother would suffer psychiatric injury as a result of the harm, injury or death is insufficient to found a duty of care on the part of the son.[35]

[35]Homsi (n 34) (citations omitted).

J Forrest J concluded that even if the duty postulated in Homsi was arguable there were powerful policy reasons which militated against its imposition. These included that such a duty would almost certainly unlock a large number of claims, making a floodgates argument a reality. This could result in financial implications for the Transport Accident Commission system in Victoria and the imposition of duties in many analogous circumstances. Further, his Honour observed that imposition of a duty in circumstances such as those in Homsi had the potential to cause interference with family relationships.

The question of what features, in addition to foreseeability, determined whether a duty was owed was considered by Nettle J in King v Philcox (‘King’), in which his Honour said:

[80] This Court has not before had to determine whether a duty of care is owed in the circumstances presented by this case. Wicks made passing reference to the issue of duty of care owed to those present at the aftermath of an accident but did not deal with it in detail. Jaensch v Coffey, Tame and Gifford v Strang Patrick Stevedoring Pty Ltd all provide relevant guidance, but the issue cannot be properly decided by reference only to the nature of the relationship between the victim of an accident and the claimant, or the victim and the defendant. As Deane J concluded in Jaensch, the question of whether a duty of care is owed in particular circumstances falls to be resolved by a process of legal reasoning, by induction and deduction by reference to the decided cases and, ultimately, by value judgments of matters of policy and degree. Although the concept of "proximity" that Deane J held to be the touchstone of the existence of a duty of care is no longer considered determinative, it nonetheless "gives focus to the inquiry". It does so by directing attention towards the features of the relationships between the parties and the factual circumstances of the case, and prompting a "judicial evaluation of the factors which tend for or against a conclusion" that it is reasonable (in the sense spoken of by Gleeson CJ in Tame) for a duty of care to arise. That these considerations may be tempered or assisted by policy considerations and value judgments is not, however, an invitation to engage in "discretionary decision-making in individual cases". Rather, it reflects the reality that, although "[r]easonableness is judged in the light of current community standards", and the "totality of the relationship[s] between the parties" must be evaluated, it is neither possible nor desirable to state an "ultimate and permanent value" according to which the question of when a duty arises in a particular category of case may be comprehensively answered.[36]
[36]King (n 1) (citations omitted).

Submissions
Ms Biggs

Ms Biggs’ action is for a breach of the independent duty owed to her by Mr O’Connor to take reasonable care that she would not suffer mental injury by the manner in which he rode the motorcycle causing injury to her husband. The duty was owed directly to her by Mr O’Connor, and was not dependent on Mr Biggs himself having a claim against Mr O’Connor.

There is no basis on policy grounds to deny the existence of the duty owed to Ms Biggs. Her claim is a classical nervous shock case, in line with longstanding authority. There is no basis for a floodgates argument if the claim succeeds, and no policy considerations that should disentitle Ms Biggs where she is in a category of victims whose claims have long been accepted. The reference to policy considerations should not be an invitation to engage in discretionary decision-making in individual cases.

Mr O’Connor

While it is foreseeable that Ms Biggs might suffer psychiatric injury as a result of her husband dying in the collision, mere foreseeability is not sufficient to impose a duty of care.

The question of whether it is established that a duty is in fact owed is not answered merely by considering whether the plaintiff fits within a certain category, but must be considered by reference to the nature of the relevant relationships, including between as Mr O’Connor and Mr Biggs, and be resolved by the process described by Nettle J in King (referred to in paragraph 70 above). For there to be a secondary victim there must be a primary victim to whom a duty is owed which has been breached. If there is no duty owed by Mr O’Connor to Mr Biggs, then there could be no duty owed to Ms Biggs.

Alternatively, if the volenti defence is established then Mr Biggs’ death was not caused by the negligence of Mr O’Connor, but rather resulted from his own election to become a passenger on the motorcycle. This is a powerful reason militating against the imposition of a duty of care by Mr O’Connor to Ms Biggs. Properly analysed, the cause of Mr Biggs’ death and the psychiatric injury to Ms Biggs, was his election to ride as a passenger on the motorcycle, knowing and appreciating Mr O’Connor’s capacity to control it was impaired by his consumption of alcohol. Imposing a duty on Mr O’Connor to Ms Biggs in those circumstances is analogous to say she was owed a duty by her husband. For policy reasons such a duty should not be imposed. Alternatively, causation is not established.

Analysis

Ms Biggs’ action is for breach of a duty owed to her by Mr O’Connor to take reasonable care in the riding of his motorcycle, to ensure she did not suffer psychiatric injury by learning of or seeing the effects of physical injury to her husband.

The duty asserted by Ms Biggs is not novel. The authorities recognise that a driver of a motor vehicle should have in contemplation the potential of mental harm to the spouse of a primary victim injured in an accident caused by the driver’s negligence.

The driver’s duty to the spouse or close relative of a primary accident victim does not depend on or derive from, and is at most coextensive with, a duty owed by a driver to the primary victim.

For a secondary victim to succeed it is necessary that the acts or omissions of the defendant driver in the management and control of the motor vehicle that caused the injury or death of the primary victim were in some sense wrongful. However, the injury or death of the primary victim is not a legal element of the claim by the secondary victim. It is not necessary to establish that the primary victim has a good cause of action against the driver in order for the secondary victim to succeed. In both Scala and Curran actions by the primary victim failed, in the latter case because of a successful plea of contributory negligence. In both cases the Court concluded the failure of the action by the primary victim did not destroy the tortious character of the defendant’s conduct in driving the motor vehicle in a manner which was a cause of the accident.

Mr O’Connor’s defence was not based on an argument that his riding of the motorcycle satisfied a standard of reasonable care. Rather, he argued the circumstances leading to the accident were so special and exceptional that the relationship between him and Mr Biggs was changed so that no duty was owed; or alternatively that the cause of Mr Biggs’ injury and death was his knowing acceptance of the risk of future negligent driving by Mr O’Connor. Success with either argument does not destroy the wrongful or tortious character of the acts by Mr O’Connor in the management and control of his motorcycle.

This can be tested by two examples. In the first, a claim might be made by a bystander or rescuer who was not put in fear of physical injury, but suffered psychiatric injury as a result of observing the physical injuries to Mr Biggs at the scene of the accident. The duty owed by Mr O’Connor to that person would not be negatived by Mr Biggs’ knowledge that Mr O’Connor was so intoxicated as to be totally incapable of exercising care in riding his motorcycle. Nor could it be successfully argued that the cause of psychiatric injury to the bystander was Mr Biggs’ acceptance of the risk of travelling as a pillion passenger with Mr O’Connor.

In the second example, suppose that Mr O’Connor was driving a motor car with a second passenger who, unlike Mr Biggs, was unaware of Mr O’Connor’s consumption of alcohol and intoxication. A claim by a close relative for psychiatric injury resulting from the injury or death of the second passenger would not be defeated by Mr Biggs’ knowledge of Mr O’Connor’s intoxication. In both examples the acts and omissions by Mr O’Connor which were a cause of the accident, and of injury to the various parties, retain their wrongful or tortious character. The special or exceptional circumstances which give Mr O’Connor a defence to a claim by Mr Biggs or his estate are specific to the relationship between them. The relationship between Mr O’Connor and other persons who might foreseeably be injured by his failure to take reasonable care remain unaltered.

The observations by J Forrest J in Homsi, that the duty to a secondary victim is dependent upon an established and pre-existing duty of care being owed by the tortfeasor to a primary victim, must be understood in the context of the novel duty sought to be established in that case. His Honour was therefore required to consider whether, by the process described by Nettle J in King (referred to in paragraph 70 above) of induction and deduction by reference to decided cases, the relationship between the plaintiff and her son gave rise to a relevant duty of care. One feature which was relevant to the existence of the novel duty, and which his Honour noted was absent in that case, was the existence of an established pre-existing duty between the tortfeasor driver and a primary victim. There are three responses to the argument made by Mr O’Connor based on the judgment of J Forrest J in Homsi. First, there is an established duty owed by a driver to avoid causing psychiatric injury to the close relatives of a passenger as a consequence of the passenger’s injury or death. The duty that Ms Biggs relies on is not novel. Second, in this case there is an established pre-existing duty owed by the driver of a motor vehicle to persons such as passengers who might be injured by the driver’s negligence in the management and control of the vehicle. Third, while an action by a secondary victim does depend on acts by the tortfeasor resulting in injury to the primary victim being in a general sense wrongful, it does not depend on the secondary victim establishing that the primary victim has a good cause of action against the tortfeasor for damage to them caused by those wrongful acts.

If it is relevant, I conclude there are no good policy reasons militating against imposition of a duty by Mr O’Connor to Ms Biggs. As I have already observed, the circumstances in which a no duty / volenti defence will succeed are relatively rare. Unlike Homsi, the floodgates argument is not a reality. Allowing the defence to a claim by a passenger may appropriately deter persons from travelling in vehicles driven by intoxicated drivers. However, it is more difficult to see how the defence would operate as an effective deterrent if it applied to defeat claims by secondary victims. Further, the availability of a good cause of action to secondary victims may serve as an appropriate deterrent to intoxicated drivers.[37]
[37]Transport Accident Act 1986 (Vic) s 102(2).

For the above reasons I would conclude that Ms Biggs’ cause of action against Mr O’Connor would not be defeated by him establishing circumstances that were so special and exceptional as to negative a duty owed by him to Mr Biggs, or that he had a volenti defence to a cause of action for damages for Mr Biggs’ injury and death.

Damages
Ms Biggs

Ms Biggs was born in 1971.

Ms Biggs said after completing HSC she worked for a company called Media Monitors. She met her husband Shaun when she was 21 years old, and their first son Nathaniel was born in December 1994. Ms Biggs said she took seven months off work after Nathaniel’s birth, began part-time work with the ANZ Bank in 1995, and had a further six months off work when their second son Joshua was born in September 1996. She continued working with the ANZ Bank, and was an assessor in quality and coaching for over 10 years, and a manager in assets, finance and high risk, co-supervising a team of about 20 staff for about a year before her husband’s accident.

Ms Biggs said that before the accident she and Shaun enjoyed going to markets and antique shops, and would often have lunch together at different pubs afterwards. She said she enjoyed reading novels, one every one or two weeks. Shaun worked full-time as an electrician.

In about 2013 or 2014, Ms Biggs found out that her husband had contracted hepatitis and was suffering liver failure. Initially he denied he was using drugs, but later explained to her that he contracted hepatitis from using a syringe. She said the medical advice was that Shaun may need a liver transplant, but gradually, with the use of medication, he recovered from hepatitis.

Ms Biggs said when she found out her husband was addicted to ice, she was devastated. She said the relationship was still good, but she was concerned for him. He was a high-functioning addict. He was still able to work, and a lot of people did not know about his drug habit. He could be volatile, with dramatic mood swings, going from calm to ‘crazy’ within seconds. Often he did not eat properly, which was not good because he was diabetic. Ms Biggs said her husband lost weight and looked very drawn. She said in addition to using ice, he drank regularly and to excess at times.

Ms Biggs said they discussed Shaun’s drug use, but did not have raging arguments. She was supportive; trying to understand why he was using. She said they did discuss him getting off the drugs, but she never tried to make him make promises, and it was never a situation of ‘it’s me or the drugs’. She said it was one step at a time.

After her husband recovered from hepatitis he stopped using drugs for some time, then relapsed, and went to rehabilitation for two weeks at a place in Heidelberg. This was about three years before he died. Ms Biggs said at this time she had some counselling to support her through her husband’s drug use. After rehabilitation he went to Narcotics Anonymous and made a good effort at staying off the drugs, but it did not last.

Ms Biggs said that for a couple of years her husband stayed at another premises. She said they were still very much married, continued to have an intimate relationship, and shared incomes. She shopped for Shaun, he was at their home every day, and had keys to the house. They continued to do things together on weekends. However, when he was aggressive, he had somewhere else to go. Shaun would often deny that he was using drugs, and while he was living away from the family home, he told her he was trying to get off drugs.

Ms Biggs said that in June 2017 Shaun was hospitalised with a heart problem which was not related to his drug use. He required bypass surgery, and was an inpatient in the Alfred Hospital for about two weeks before the surgery, and a further four days afterwards. Ms Biggs said that as far as she was aware her husband had used ice up to that time.

After his surgery, Mr Biggs stayed at his separate accommodation for a short time before coming to live in the family home. Ms Biggs said her husband was a totally different person. He seemed to realise the value of what he had and was happier, more family oriented and focused. She said she could see no evidence that he was continuing to use ice. He was more responsible, his relationship with the boys improved, and he wanted to spend time with them. She said Shaun was not drinking as much as he had before his heart surgery. They made plans for the future, including to travel to England in 2018.

Ms Biggs said her husband was a regular golfer, and mostly played on a Sunday. When he played he would usually go for the whole day.

Ms Biggs said on the morning of the accident she got up early and went to the market. She called her husband, who said that he was waiting for Mr Edwards to pick him up to go to golf. She said she was texting her husband during the evening, and he was responding, but they did not discuss what he was doing or what time he would get home.

Ms Biggs said that at about 9pm, she and Josh were watching a movie when Mr Edwards rang and told her Shaun had been in an accident and had been airlifted to the Alfred Hospital. At that stage she knew nothing of her husband’s injuries, or the accident circumstances. She drove to the hospital with Josh, and Nathaniel drove separately in his car. When they got to the hospital, the nurse told her Shaun had been a pillion passenger on a motorcycle and had hit a fence. She said she felt like she could not breathe.

Ms Biggs said they were shown into a room off the emergency department, and Shaun’s mother arrived soon afterwards. Some doctors came in and told them Shaun was very sick, that he had arrested but they had managed to revive him, he was placed in an induced coma and required surgery. They said Shaun was bleeding a lot, and they needed to know what medication he was on so that they could try and stop the bleeding. Ms Biggs said she felt very frightened, worried and confused, and was trying not to cry because she did not want to worry her sons.

Ms Biggs said that at 1am the following morning the doctors came back and said they had removed Shaun’s spleen, and had done everything they could to stop the bleeding, but that he had not made it. She said she will never forget the looks on her sons’ faces, and that she felt as if she had been punched hard in the stomach. Ms Biggs said she, Josh and her mother-in-law went to see Shaun. She said he looked like he was sleeping, but she was terrified of touching the blanket, knowing that he had injuries to his abdomen. She said she kissed her husband, and said sorry that she was not there for him when he needed her.

Ms Biggs said over the following days there was so much to do — she had to ring Shaun’s work and his friends, and organise her husband’s funeral on Christmas Eve. She said she could not get any sleep, and would just lie in bed and cry. She had to go to the Coroners Court to formally identify Shaun. She wanted to touch him, but she could not, because she was frightened he would feel cold.

Ms Biggs said she felt overwhelmed with anxiety, could not breathe, could not stop crying, felt sick to the stomach, was having difficulty eating and sleeping and had terrible nightmares every night. Her GP prescribed temazepam to help calm her down. She said she felt like she wanted to die, but could not do that because of her boys.

Ms Biggs was referred to a psychologist, Mr Pallini, who she started seeing every two weeks, and now sees about once a month. Ms Biggs said Mr Pallini had taught her different strategies to try and deal with the panic attacks and anxiety, and she felt she could talk to him about Shaun and how her life has changed.

Ms Biggs said she was also referred to see a psychiatrist, Dr Balgobind, who prescribed a range a different antidepressants, but she had adverse reactions and had to change medications. She said the adverse reactions included asthma, feeling more depressed, an upset stomach and an increase in appetite. She is now prescribed fluoxetine, which dries out her mouth. Dr Balgobind had recently tried to increase the dose of fluoxetine, but that caused problems with her CPAP machine she said.

Ms Biggs said she feels constantly worried, suffers panic attacks, sweats, chest pains and dizziness. She said she feels depressed, unhappy and unmotivated, and finds it hard to leave the house. She finds socialising exhausting, but said once she does get out to meet friends she enjoys it.

Ms Biggs said she often has nightmares, and when she wakes she is absolutely terrified. A lot of the nightmares are about Shaun — that he has been alive all this time, but is lost in the hospital system, or that he is dying of cancer and she has to watch him die.

After the accident Ms Biggs returned to full-time work in about April 2018. She was struggling with concentration and focus, forgetting words and names, having difficulty speaking to customers, going blank and having difficulty running meetings. Her co-team leader took on the more complex tasks. Ms Biggs said one day in July 2018 she left work, did not know how she was going to get home, and just stood on the street corner and cried. She said not long after that she stopped work.

In June 2019 Ms Biggs travelled overseas. She said the trip was her idea, and she wanted to see her father who lives in England, and to feel loved again. She was away for about a month, and organised a one week tour in Italy. Her father was supposed to go with her, but he became ill and had to pull out. After the tour she spent three weeks in Kent with her father.

When she returned to work for a second time in July 2020, Ms Biggs had the same job title as before the accident, but was doing different work. She said she started working from home four hours a day, either two or three days a week, and gradually built up to 18 hours a week. She had to change from working three days in a row to working on Mondays, Wednesdays and Fridays so that she had a break between workdays. Currently her work involves monitoring and giving feedback, and updating a databank of policies and procedures.

Ms Biggs said she has had to use all her sick leave and holiday pay, and most of her long service leave to try to maintain her income.

Ms Biggs said she would like to be able to work more, and her aim is to work as many hours as she feels capable of. While she did not want to exclude full-time work, she did not think it would be possible for her. She said she continues to suffer anxiety, and if she is asked to do anything a bit difficult at work, her brain freezes and she panics. Work makes her feel very tired, but she intended to continue working for as long as she possibly could, even if that was beyond retirement age.

Ms Biggs said she had discussed her return to work and hours of work with her psychologist and psychiatrist. She said they think returning to work is a good idea, and she agrees. They would like her to maybe get to 20 hours a week. They had discussed that it was highly unlikely that she would be able to get back to full-time work.

Ms Biggs said she would never be able to return to full-time work because she still has a lot of problems with her cognitive function. She is unable to concentrate for long periods of time, has difficulty remembering certain words, and cannot follow directions very well. She also has bad anxiety. She struggles to manage the house and the short hours that she works at the moment. It takes her a lot more time to do things than it used to. Ms Biggs said that in her current role she has to assess risk and make serious decisions, and she has a lot of trouble doing that.

Ms Biggs said her life is nothing like it was before the accident. She said she loved her job, worked full-time, and extra hours with pleasure. She now struggles with housework, and cannot keep up the maintenance on the house. She does not like to leave the house for long periods of time, feels anxious, and does not want to socialise. She said she finds it difficult to keep up a work-life balance. When she is not working she feels anxious about what she needs to do at work. When she gets exhausted at the end of the day, her brain just does not function, and she finds it difficult to grasp information.

Ms Biggs said restructures occur at the ANZ almost on an annual basis. The role she is currently employed in was originally with the company Esanda, which she said was sold to Macquarie a number of years ago. Ms Biggs explained ANZ have stopped writing consumer loans, which is the main area she works in. She said most of the consumer loans are for a term of five to seven years, and it has been about three years since ANZ stopped writing new loans. When the consumer loans that she looks after are completed she will not have any work in that area, and will need to be redeployed to another role, or she will be made redundant. She said she is not aware what the ANZ is planning at this stage, but she does not have any security in the role she is currently performing. Ms Biggs said her limited capacity to work would make it more difficult for her to step into another role, and to find a role that would accommodate the shorter hours she needs to work. If she is made redundant she will definitely need to seek further employment, but she is uncertain what role she would be capable of taking at this point.

Nathaniel Biggs

Nathaniel said that before the accident he would describe his mother as a strong person, very bubbly and happy, always solid as a rock, and he had never seen her show any weakness.

For a few days after the accident his mother did not really eat or sleep. She was very emotional and forgetful.

After the funeral his mother looked lost and empty. She did not really move off the couch for some time. She seemed very depressed and anxious, and told him she was having nightmares. He said when his mother returned to work she did not seem to be coping, was incredibly tired and struggling to concentrate, was very anxious and having a lot of panic attacks. He said after she stopped work in mid-2018, his mother did not leave the house very much and did not seem to socialise or talk to anyone.

Nathaniel said now his mother does not seem to be coping very well with work. She takes a lot of breaks and is constantly complaining about forgetting stuff. He said she is completely different to what she was like before the accident and that she does not seem confident or strong. He said his mother used to read all the time, but he has not seen her read since his father died.

Medical evidence

Ms Biggs tendered the following medico-legal reports:

(a) Dr Mehraz Chowdhury, treating general practitioner, dated 1 October 2019;

(b) Dr Nataliya Lishchenko, treating general practitioner, dated 3 December 2020 and 25 March 2021;

(c) Mr Brett Pallini, treating psychologist, dated 2 November 2018, 14 September 2019 and 19 September 2020;

(d) Dr Kalpana Balgobind, treating psychiatrist, dated 6 September 2018, 20 January 2020, 26 November 2020 and 23 March 2021;

(e) Dr David Weissman, medico-legal psychiatrist, dated 18 March 2019 and 26 October 2020.

Mr O’Connor did not lead any medico-legal evidence. None of the medical witnesses was called to give oral evidence.
Dr Chowdhury

Dr Chowdhury said Ms Biggs suffered the pre-existing condition sleep apnoea. He diagnosed that following the death of her husband she suffered complicated bereavement, anxiety, depression and post-traumatic stress disorder (‘PTSD’). Dr Chowdhury said:

The accident has had a profound impact on Amanda’s quality of life. She feels depressed on a daily basis and finds regular domestic chores strenuous. She also feels very socially withdrawn and has become reclusive.

Dr Chowdhury said it was difficult to predict the prognosis of Ms Biggs’ condition.
Dr Lishchenko

In her first report Dr Lishchenko expressed an opinion consistent with that of Dr Chowdhury. In her second report Dr Lishchenko said Ms Biggs’ mental state was progressively improving, but that symptoms of mood swings, low energy levels and fatigue were persisting. Dr Lishchenko said the prognosis for recovery was good, but acknowledged psychiatry was not her field of expertise. She said Ms Biggs had returned to 18 hours per week work, and the aim of the medical team was to increase to 20–24 hours in the near future.

Mr Pallini

Mr Pallini said that at a first consultation in February 2018 Ms Biggs presented with a range of psychological symptoms directly related to grief and trauma from the accident, that included:

(a) Severe sleep disturbance, including ‘scary’ nightmares and elevated dream activity;

(b) Feelings of loneliness, isolation, extreme loss, sadness and grief;

(c) Elevated anxiety, panic episodes, and worry about her sons;

(d) Constant thoughts and ruminations about Shaun;

(e) Confusion regarding aspects of the accident and Shaun’s injuries;

(f) Depressed mood, flat affect, and moderate anhedonia;

(g) Low energy, amotivation, mild apathy with social withdrawal;

(h) Cognitive impairment, poor memory, decreased concentration and focus; and

(i) Suicidal ideation - assessed as low risk, no plans, no immediate intent or attempts.

Mr Pallini said during treatment Ms Biggs’ functioning and symptoms had varied and followed a course of moderate-to-severe prevalence and intensity. He said she had endured consistent mood disturbance, including extreme sadness, loss, grief, loneliness and pervasive anxiety, that her mood was flat and restricted at times, and sleep disturbance persisted with insomnia and extreme nightmares. He diagnosed Ms Biggs as suffering major depressive disorder with severe anxiety, and chronic unresolved grief and bereavement. He said Ms Biggs had experienced varied success with her return to work, continuing to notice impaired concentration, poor memory, difficulty attending to tasks, being easily distracted and average productivity. Mr Pallini said there was a need to take a conservative approach and to allow Ms Biggs time for her functioning to improve while she developed a work routine. Mr Pallini considered Ms Biggs was likely to experience loss and grief for the remainder of her life. He said she had made consistent progress over the 12 months to the date of his second report which had resulted in improvement in her daily functioning and moderation of her psychological symptoms.

Dr Balgobind

Dr Balgobind noted Ms Biggs continued to suffer symptoms including insomnia, low mood, poor concentration, loss of interest in social activities/hobbies and lethargy, and that she reported trauma-related symptomology including traumatic dreams about her husband. Ms Biggs continued to take fluoxetine 40 mg, but was unable to tolerate higher doses. Dr Balgobind said overall Ms Biggs’ prognosis was good, that she was likely to continue to be fit for modified duties on reduced hours, but may not be able to return to her pre-injury role in the near future. Dr Balgobind said Ms Biggs’ symptoms were likely to be exacerbated during times of stress, which may impact her level of function. Dr Balgobind considered Ms Biggs’ role as a team manager would be overwhelming and likely to lead to decompensation in her mental state at this point in time, that she was currently only fit for modified duties on a part-time basis, and that a prominent feature of her depression was cognitive impairment which directly impacted her work capacity.

Dr Weissman

On mental state examination on 18 March 2019, Dr Weissman said Ms Biggs came across as very sad and flat, depressed and anxious, traumatised, grieving and bereaved. She had become tearful and distressed during the interview, and had a restricted range of affect. Dr Weissman described evidence of psychiatrically based cognitive dysfunction with some slowing and impairment of attention, concentration, focus, short-term memory, speed of information processing/mentation, as well as some word-finding difficulties. He said following her husband’s death Ms Biggs developed an acute stress disorder, adjustment disorder and grief reaction which evolved into chronic PTSD of moderate intensity, and a chronic adjustment disorder with depressed and anxious mood, which further evolved into major depressive disorder of moderately severe intensity.

Dr Weissman said it was likely Ms Biggs suffered a not insignificant but perhaps mild state of depression, anxiety and stress in 2014 related to her husband’s significant drug abuse and threats to harm himself. He said that while it seemed that episode of depression and anxiety had fully remitted, longstanding marital stress relating to her husband’s irresponsible behaviour is likely to have left Ms Biggs with some pre-existing/pre-morbid psychological and emotional vulnerability factors. Dr Weissman said on the other hand Ms Biggs certainly had some significant personality/ego strengths and protective/positive prognostic factors.

Dr Weissman said that to some extent Ms Biggs idealised her relationship with her husband, but that the relationship was complicated, complex and ambivalently held, which made it more difficult for Ms Biggs to recover from grief and depression following her husband’s death.

Following Ms Biggs’ second consultation with him Dr Weissman said:

She is slightly more active than she was last time. She swims virtually every day. She walks her dogs most days. She still has difficulties with her cognitive function and difficulties reading. Prior to the pandemic, her socialisation was still limited and she preferred to stay at home. Her motivation and drive are still quite low. She needs to "force" herself to do things. She has a mild amount of day-to-day psychiatrically based functional impairment. She does not shower and dress herself every day. There is perhaps a slight improvement in her mood state. She probably has more anxiety than sadness and depression with moderate anxiety and moderate sadness but mild to moderate depression. Her post-traumatic stress and anxiety symptoms and traumatisation features are now closer to mild to moderate rather than moderate.

On this occasion Dr Weissman concluded Ms Biggs suffered an accident related chronic PTSD of mild to moderate intensity, and chronic major depressive disorder with anxious distress which was moderate overall.

At the time of Dr Weissman’s second consultation Ms Biggs was working two five-hour shifts a week. He concluded it was likely she would be able increase to something in the order of half time over the next six to nine months. However, it was unlikely she would ever return to her exact pre-injury duties because of the cognitive function required and the levels of pressure, stress and responsibility in her pre-injury role. Dr Weissman concluded that while the psychiatric prognosis for Ms Biggs remained uncertain and guarded, it was a little more favourable than when he first saw her.

Pain and suffering

Counsel for the plaintiff relied on the significant increase in awards of damages for pain and suffering over the last 20 years,[38] and the value placed by modern society on loss of enjoyment of life and compensation of pain and suffering,[39] and submitted that a reasonable award of damages to Ms Biggs for pain and suffering was $380,000.
[38]Willett v State of Victoria (2013) 42 VR 571 (Tate, Osborn and Priest JJA).
[39]Amaca v King (2011) 35 VR 280 (Nettle, Ashley and Redlich JJA).

Counsel for the defendant submitted Ms Biggs’ treatments have not progressed beyond modest and traditional psychological treatment, there has been no hospitalisation or intensive treatment of any sort, and all three current treaters have noted that Ms Biggs’ condition has continued to improve. The defendant submitted pain and suffering damages should be awarded in the range $150,000 to $200,000.

I conclude Ms Biggs has suffered, and will continue to suffer, chronic PTSD, chronic major depressive disorder with anxious distress and an unresolved chronic grief reaction as a consequence of the transport accident and her husband’s death. Ms Biggs has a continuing requirement for psychological and psychiatric treatment, and prescription antidepressant medication. Since the accident she has been wholly or partially incapacitated for work which she enjoyed, and in which she now struggles. She no longer reads for enjoyment, struggles to perform domestic duties, has difficulty sleeping and avoids socialising. Ms Biggs has had to use her annual and long service leave to maintain sufficient income.

I conclude that Ms Biggs has significant pre-existing personality strengths, and an ongoing commitment to maximise her level of functioning both at work and at home. With the assistance of her treaters and a supportive work environment, that has resulted in significant improvements over the last 12 months or so in her psychological state and level of functioning. While it is uncertain what further sustained improvement might be achieved the most recent medical evidence supports a positive prognosis.

Taking all of the above matters into account I conclude a reasonable assessment of pain and suffering damages is $275,000.

Pecuniary damages
Submissions
Mr O’Connor

Ms Biggs now has the capacity to undertake many daily activities, and has returned to work 18 hours a week spread over three days. It is likely Ms Biggs’ symptoms will continue to abate in future. That is particularly so because it is still a relatively short period of time since Mr Biggs’ death.

Ms Biggs’ capacity to give evidence was impressive, and was not obviously affected by the difficulties that she professes to have in terms of cognitive function.

It is human experience that people get over the tragedy of losing a loved one and move on with their lives. There is no reason why that will not occur in this case. It is likely Ms Biggs will return to full-time work at some stage in the future.

An allowance of about five years’ future part-time loss, before a return to full-time employment, is reasonable in the circumstances of this case.

Any job insecurity in Ms Biggs’ employment with the ANZ Bank is something that she would have faced in any event. Any risk to Ms Biggs’ employment beyond a further five years, when she is likely to have returned to full-time employment, will not relate to any injury she sustained by reason of the accident.

Ms Biggs

Future loss of earning capacity should be assessed on the basis that Ms Biggs’ maximum capacity will be for 20 hours per week work.

An assessment of loss should take into account risks to Ms Biggs’ future employment caused by her symptoms and impairment, and because she is working in a lesser position. If Ms Biggs’ current position of employment ceases, she will need to be redeployed, or she will be made redundant. Given the level of her incapacity for work that is likely to result in her suffering further loss. It is appropriate to take this matter into account as a negative vicissitude against the retained earning capacity.

Analysis

If Ms Biggs were working full-time at her current hourly rate of earnings her net weekly earnings, including superannuation, would be approximately $1,680.

Assuming Ms Biggs is able to increase to 20 hours a week work her current net weekly earnings, including superannuation, would be approximately $930. On that basis Ms Biggs would suffer a net weekly loss of about $750.

The current medical evidence supports a continuing loss at that rate at least for a period of time. I am satisfied Ms Biggs is currently working at her maximum capacity given her strong work ethic and commitment to returning to work. On that basis I conclude it is reasonable to assess Ms Biggs’ current capacity as 50% of full-time.

I am satisfied by the medical evidence that it is likely Ms Biggs will suffer permanent psychological injury resulting from the accident and her husband’s death.

Ms Biggs’ psychological condition and functional capacity has clearly improved over about the last 18 months. As a result she has been able to return to a significant level of employment and domestic activity. I conclude it is likely that with the assistance of supportive treatment, given her own determination and pre-existing personality strengths, there will be some further gradual improvement in Ms Biggs’ condition over time.

Ms Biggs’ evidence is that even with her injuries she intends to continue the work beyond retirement age.

Ms Biggs’ employer is supportive, which has been an important factor in her return to work and ability to maintain her current hours. For so long as Ms Biggs continues in employment with the ANZ Bank, its support of her is likely to be a positive feature. On the other hand, I accept that there are increased risks to Ms Biggs from any need to be redeployed, or if she is made redundant.

While I have concluded Ms Biggs suffers ongoing depression and associated cognitive deficits, she was an impressive witness who was not obviously affected by those difficulties when giving evidence.

Taking all of the above matters into account I conclude it is reasonable to assess loss of earning capacity on the basis that Ms Biggs will have a 50% with injury earning capacity for about the next five years.

The five-year multiplier is 226.3. A weekly loss of $750 for a period of five years therefore calculates at $169,725.

At the end of that five-year period Ms Biggs will be 55 years old. It is likely Ms Biggs will continue to suffer a reduced level of incapacity for work from this age until retirement. That residual incapacity for work may be productive of loss by limiting Ms Biggs’ hours of work, or possibly by restricting the level at which she works following redeployment or re-employment if and when her current position comes to an end.

The applicable multiplier from age 55 to age 67 is 450.5. The deferral factor for a loss commencing in five years is 0.747. Reduction in capacity by one day a week at Ms Biggs’ current rate of pay would cause a loss of around $300 net per week, including superannuation. On this basis loss from age 55 to age 67 calculates at about $100,000.

This method results in an assessment of future loss of about $270,000.

The reduction for vicissitudes is complicated by the increased risk Ms Biggs faces in her continuing employment by reason of her compensable injuries, and the uncertainty associated with assessments of loss beyond age 55 years. I conclude an appropriate reduction for vicissitudes in the circumstances is around 15%.

On this basis I assess a future loss of earning capacity at $230,000.

Past loss to the date of trial was agreed by the parties at $130,000 inclusive of superannuation. It is appropriate to add to that figure a further allowance for the period of about 30 weeks since the trial at a rate of $750 net per week. On that basis I will allow past loss of $150,000.

I will award pecuniary loss damages for the past of $150,000, and for the future at $230,000, being a total of $380,000.

Conclusion

I have concluded Ms Biggs has established that there was negligence by Mr O’Connor in the riding, management and control of his motorcycle which was a cause of the accident and the psychological injury she has suffered. I have assessed Ms Biggs’ damages as follows:

Pain and suffering $275,000
Pecuniary loss $380,000

Ms Biggs’ damages are assessed at $655,000. I will hear from the parties as to any claim for interest and costs.

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13 December 2021