Connors v Nominal Defendant (No 4) - [2020] NSWDC 438

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Connors v Nominal Defendant (No 4) [2020] NSWDC 438
Hearing dates: 4 June 2020, 9-12 June 2020, 15-16 June 2020.
Date of orders: 16 June 2020
Decision date: 16 June 2020
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Verdict and judgment for the plaintiff against the defendant for $683,739

Catchwords:
TORTS - Action for damages for MENTAL HARM (nervous shock).
P’s father killed in a one vehicle motor accident. Registration and insurance of vehicle had expired. Liability admitted subject to a defence of contributory negligence on the part of the deceased. Driver had admitted drinking alcohol and ingesting illegal drugs before the accident. Driver pleaded guilty to an offence of dangerous driving causing death as a result of her ingestion of illegal drugs. Admission of driver does not bind P. D failed to prove that there was present in the driver’s blood or breath any alcohol or illicit drugs and, if it had, did not call any expert evidence to prove the effect on the driver’s ability to drive. Driver had been without sleep for 32 hours and during that whole time was active either working or dancing at a “bush doof” party. Driver fell asleep at wheel of the car which left the carriageway and collided with a power pole, leading to death of P’s father. Deceased was aware of the time spent by driver without sleep. Driver asked deceased twice to stay awake to keep her awake. Finding of on-third contributory negligence.

Legislation Cited:
Civil Liability Act 2002
Motor Accidents Compensation Act 1999

Cases Cited:
Clyde v State of NSW (TAFE Commission) [1995] NSWCC 38; (1995) 12 NSWCCR 541
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15
Zlojutro v GIO (NSW), Court of Appeal, 40569/89, 11 August 1995

Texts Cited:
Matt 26, 41; Mark 14, 38, King James Version.

Category: Principal judgment
Parties: Summer Rain Connors – Plaintiff
Nominal Defendant - Defendant
Representation: Counsel:
J. Turnbull SC & J. de Greenlaw - Plaintiff
M. Williams SC – Defendant
Solicitors:
S. Adams (Adams & Co Lawyers) – Plaintiff
L. Patrick (Vardanega Roberts) – Defendant

File Number(s): 2018/00159755
Publication restriction: Nil.

Judgment

HIS HONOUR: The plaintiff, Ms Summer Rain Connors, brings an action for damages for mental harm (previously known as nervous shock) arising out of the death of her father, Mr Matthew Connors. Mr Connors was seriously injured in a motor vehicle accident which occurred on Sunday 22 September 2013. Eventually, Mr Summers was airlifted to the Royal Brisbane Hospital but he died on Wednesday 25 September 2013. The plaintiff's claim, accordingly, is for mental harm resulting from the death of her father. At that time, the plaintiff was aged 17 years and her father was aged 37 years. The motor vehicle accident was a one vehicle accident. The vehicle was being driven by Ms Rhonda Louise Davis with whom Mr Connors was living as man and wife in Evans Head, together with the plaintiff.
On Saturday 21 September 2013 an event was held near the village of Rappville which is on the Summerland Way, some 35.9 kilometres south of Casino. The event was not held in the village itself but on a nearby rural property. The event has been variously described as a "doof" party, a "doof doof" party, a "bush doof" party and a "rave". I am assured by my Associate, who grew up in the Northern Tablelands of this State, that the correct terminology is a "bush doof" party but since the word "doof" is unknown to the Queen's English I shall merely refer to it as a dance party.
It appears that the event was organised by a company or firm known as "Splinters in the Grass". The plaintiff's current de facto husband, Mr Samuel James Burnie, said at the time of the dance party he was working for that entity in the entertainment industry setting up stages as a stage hand. The dance party was attended by both Mr Connors and Ms Davis to whom I shall refer in this part of the judgment as Matt and Rhonda, because that was the way they were described in the evidence. The dance party was also attended by the plaintiff, who went there not with Rhonda and Matt but with her auntie and, I infer, Mr Burnie.
The plaintiff gave evidence that she arrived at the venue of the dance party about 4pm. She believed that Matt and Rhonda arrived about 10pm. There is a dispute about when Rhonda and Matt arrived at the party. Ms Davis gave evidence that on Saturday 21 September 2013 she worked a "lock up" shift at the Rod and Reel Hotel in Woodburn. She worked there as a bar waitress. She said that she commenced work about 5.30pm and finished work at 12.30pm and then drove from Woodburn back to Evans Head, picked up Matt and left Evans Head about 12.30 to 12.40 and arriving at the dance party between 45 minutes and one hour later. That would indicate that they arrived at, roughly, 1.30am.
However, Ms Davis was interviewed by the police on the evening of the motor vehicle accident, 22 September, whilst she was at Casino Hospital. There is an electronic record of interview. The transcript of that is exhibit 20. The interview does not state when it commenced but it concluded at 5.02pm. The interview may have listed for any period of time between a quarter of an hour and a half hour. However, the motor vehicle accident occurred at approximately 2.30pm that day.
In the interview, Ms Davis was asked when she arrived at the dance party. She said at 8 o'clock on the evening of 21 September. The interview that Ms Davis gave was frank. She admitted to driving the car. She admitted that she fell asleep and she was extremely remorseful. The interview contains this matter:

"I'm just so fucking disgusted with myself...like, I've really hurt somebody...and he's such a nice guy."

Later in the interview she said this "If he dies, I'm going, I don't know what I'll do. On my God. Oh, far out". She also was frank with the police in admitting that she had initially told a lie about how the accident occurred. She said this to the questions which were then asked by Senior Constable Kieran Scott:

"Mate, I lied, I know I lied to a lady when she first got there and she asked me what had happened ... I told her that the wheel, the wheel popped out and I went off the road, but it's not true. I went to sleep."

I believe that Ms Davis' recollection of what happened on the weekend of 21 and 22 September 2013 was better on the evening of 22 September 2013 than it was in the witness box last Friday. I accept that she did work a shift at the Rod and Reel Hotel at Woodburn but appears to me to be likely that it was an opening shift; that is, one commencing sometime shortly prior to 10am and finishing up when the lock up shift started at 5.30pm. That gave her time to go home and collect Mr Connors and then to drive to the dance party via Woodburn, Coraki and Casino.
Nothing really turns on that, in any event, because it is common ground that both Matt and Rhonda did not sleep at any time over the night of 21 to 22 September 2013. Ms Davis gave evidence that she woke up at about 7.30am on the Saturday morning. That was her recollection, some seven years after the event. When asked by Senior Constable Kieran Scott when she got out of bed on Saturday morning she said, "At either 8.30 or 8.45". If one takes 8.30 as being accurate, then there were 32 hours between her getting out of bed on the Saturday morning and the motor vehicle accident which happened about 2.30pm on Sunday 22 September 2013.
It is common ground that the motor vehicle that was being driven by Ms Davis was uninsured. It was a blue Toyota Camry manufactured in 1997. It bore registration plate ANO 3ME but that registration had expired and the vehicle was uninsured. Hence, the fact that the Nominal Defendant is the defendant in these proceedings. The defendant has admitted liability.

Contributory negligence of the deceased

However, it has raised a defence of contributory negligence. Plea numbered 5 in the defendant's amended defence, which was filed in court on 9 June 2020, is this:

"The Defendant says further that although liability was admitted by way of s 81 notice dated 11 May 2017, it admitted contributory negligence of 70% to the deceased.

Particulars of Contributory Negligence

(a) Failing to take any or any proper care for his own safety.

(b) Failing to heed the fact that he had consumed drugs and alcohol prior to entering the vehicle which impaired his decision making ability.

(d) Failing to heed the fact that he was deprived of sleep prior to entering the vehicle which impaired his decision making ability.

(e) Failing to heed the fact that the driver was deprived of sleep prior to entering and driving the vehicle.

(f) Remaining in the vehicle which was being driven in a manner as

pleaded in (misnumbered) paras 14(a) to (f) and 15(a) to (f) inclusive of the statement of claim filed herein.

(g) [Withdrawn].

(h) Failing to leave the vehicle at a time prior to the accident considering the circumstances as set out in paras 5(a) to (f) inclusive of this defence.

(i) That a reasonable person in the position of the deceased would have taken precautions including not entering the vehicle or electing not to remain in it considering the foregoing subparagraphs of this defence.

(j) Failing to use a taxi or other safer mode of transport."

Ms Davis admitted ingesting alcohol and illicit drugs at the dance party. She admitted to Senior Constable Scott, in the presence of Senior Constable Alissa Watts, that she had ingested a drug she believed to be "MDMA" but may have been "MDA" and also amphetamine known colloquially as "speed" or "goey". She said that the drug she believed to be 3,4 methylenedioxymethylamphetamine, commonly known as ecstasy or MDMA, was in a capsule which was opened and its contents were lined up and she ingested the drug nasally. The amphetamine was injected intravenously. She was squeamish about injecting herself and the drug was injected for her by Mr Connors. She said that she took the drug, which she believed to be ecstasy, about a half hour after she arrived at the party; that is, about 8.30pm. She said that the amphetamines were injected "probably about midnight". She also admitted to having "four or five cans of bourbon". When asked to specify the brand and size, she said, "Two Jim Beams and two Cougar bourbons". She then went on to describe herself as being "not a big drinker". She admitted, furthermore, that she did not have anything to eat at the party. When asked whether she slept, she said that she had not but she laid down for "a little bit" on a bean bag. In oral evidence, she said that the relaxation on the bean bag was brief and probably at the time of the injection of the amphetamines.
To show how fallible human memory can be, Ms Davis in her oral evidence said that she had consumed three cans of bourbon and cola but that was Wild Turkey brand bourbon and cola. What she told Senior Constable Scott on 22 September 2013 is likely to be much more accurate than what she told me on 12 January 2020. In her oral evidence, Ms Davis also admitted to smoking cannabis. Exhibit 23 is a photograph of the bong that she used, an improvised device made from a small plastic iced coffee container, a piece of garden hose and a circular piece of metal shaped like a funnel which was inserted into the end of the piece of garden hose.
Exhibits 22 and 24 are photographs of other drug paraphernalia discovered by the police in Ms Davis' car after the collision. In exhibit 22, Ms Davis identified a small round plastic container which she said contained cannabis. Exhibit 22 also shows syringes, both used and unused. Exhibit 24 shows small resealable plastic bags which appear to contain a substance that looks awfully like "ice" to me, that is crystal methamphetamine, that I have had cause to observe in many drug trials and drug sentence matters. There is no evidence that any crystal methamphetamine was ingested at this dance party. Ms Davis told me that her blood tests were negative for alcohol. That is, that there was no prescribed concentration of alcohol found in her breath or blood after the motor vehicle accident. However, she did plead guilty to dangerous driving causing death and told me that the circumstance of the dangerous driving was her driving whilst being affected by illicit drugs.
However, no attempt was made by the defendant to introduce into evidence the blood analysis which would have been performed at a Casino Hospital after Ms Davis was taken there by ambulance and where she was interviewed by the police. The defendant did not seek to adduce any evidence from a toxicologist or the like to establish what those blood readings meant and, if they proved that there was some illicit substance in Ms Davis' blood or breath, how that would impair her ability to drive. In other words, there is no evidence other than the fact that Ms Davis pleaded guilty to dangerous driving causing death of the presence of alcohol and/or illicit drugs in her body at the time of the collision, nor is there any expert evidence as to what effect that might have had on her ability to drive.
Inter alia, the defendant relied on s 138 of the Motor Accidents Compensation Act 1999 ("MACA") which requires the Court to make a finding of contributory negligence where the deceased person was, at the time of the motor accident, a passenger in a motor vehicle and the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the deceased person was aware or ought to have been aware of the impairment. However, the plea of guilty which Ms Davis entered to the criminal charge laid by the police does not create an issue estoppel. Nor is it any evidence given by an expert.
The Court does not know what the blood or breath testing showed and is unaware of any expert evidence which explains how it may have affected Ms Davis' ability to drive. The plea of guilty itself cannot bind the present plaintiff. Furthermore, the plea itself is only indicative of the fact that Ms Davis felt guilty arising from the death of her then partner, Mr Matthew Connors. She may have been poorly legally advised.
The matter is not without authority. I had cause to refer counsel to an unreported decision of the Court of Appeal in Zlojutro v GIO (NSW). Unfortunately, that is a case that cannot be easily found but it is cited by me in Clyde v State of NSW (TAFE Commission) [1995] NSWCC 38; (1995) 12 NSWCCR 541. In that judgment, I said this at 552D:

"Zlojutro v GIO (NSW), Court of Appeal, No. 40569/89, 11 August 1995, unreported, was an appeal from Pain DCJ. His Honour had found the plaintiff guilty of 50% contributory negligence in accepting a lift with a driver, Mr Miladinovic, who was found after a collision to have a blood alcohol reading of 0.125. The Court of Appeal, by majority (Meagher and Handley JJA) allowed the plaintiff's appeal and set aside the finding of contributory negligence. Meagher JA said (initially referring to the driver):

‘It later transpired after the accident, that he had a blood reading of 0.125. Nobody was called to testify as to the significance of this. We can make no inference or deduction. For all I know, many people drive motor vehicles perfectly safely with such a blood reading.
His Honour deliberately refrained from making a finding that the driver was affected by alcohol. If this be correct, and it would seem to me to be correct, no finding was available that Mr Zlojutro knew the driver was affected by alcohol. Yet, paradoxically, his Honour found that the plaintiff was 'conscious that there were risks' (unspecified) 'involved' in accepting a lift with Mr Miladinovic and assessed him guilty of contributory negligence to the extent of 50%. From what I have said, this is clearly insupportable'.

Handley JA agreed with Meagher JA. Powell JA would have allowed the appeal, but only to the extent of reducing the contributory negligence to around 20%. His Honour took the route the respondent asked me to take. His Honour noted the provisions of the Traffic Act 1909 related to 'drink driving' and concluded

'the result of the analysis of Mr Miladinovic's blood that would permit an inference that, both at the time when the appellant and Mr Miladinovic left the restaurant, and the time of the accident, the concentration of alcohol in Mr Miladinovic's blood was toward the higher end of the 'middle range', it being noted that Mr Miladinovic 'breached middle range PCA' (AB at 77) and, thus, that, at the relevant times, he was significantly affected by alcohol'.

That approach is clearly inconsistent with that of a majority, who required evidence to be called to explain the significance of the blood alcohol reading. Such evidence was not called in this case either."

In the current matter, the defendant has not established what any blood or other testing proved to be the level of alcohol, if any, in Ms Davis' blood or what level, if any, of illicit drugs were found in her blood and even if that had been done, the defendant made no attempt to call any expert evidence to prove that Ms Davis' ability to drive the vehicle was affected thereby.

Furthermore, there is evidence that speaks to the contrary. The motor accident occurred on the Summerland Way, 7 kilometres south of Casino. A triple 0 call was broadcast to emergency services at 2.40pm. Casino ambulance number 4532 was dispatched at 2.42pm and arrived at the accident scene at 2.47pm. That indicates to me that the accident occurred between 2.30 and 2.40pm on 22 September 2013. The Casino ambulance contained two paramedics, Mr Paul Doolan and Mr Carl Eames. The first police to arrive did so at 2.57pm, they being Senior Constable Scott and Senior Constable Watts. After them arrived an intensive care ambulance containing intensive care paramedics. Then the Casino Voluntary Rescue Association vehicle arrived and, finally, the Westpac Rescue Helicopter arrived. Mr Connors was trapped in the vehicle. The vehicle failed to negotiate a curve to the right and left the carriageway and collided with a power pole, referred to by Ms Davis as a telegraph pole, causing substantial damage to the front left hand side of the car. The deceased was sitting in the front passenger seat. His legs were trapped by a collapsed dashboard. Hence he needed to be extricated from the vehicle by the Casino VRA.
In evidence there is a statement made by Mr Paul Doolan that contains this evidence:

"6. I recall that upon approach to the scene there were a number of other cars parked by the side of the road. We were waved down by a female who was standing near a single vehicle that was located approximately 10 metres or so off the western side of the roadway. I could see that this vehicle was positioned upright, on its wheels. I could also see that the vehicle had major damage to its front left side and the front left portion of the roof.

7. Upon leaving the ambulance, the woman who was waving us down shouted for us to help her friend who was in the damaged vehicle. I noticed what appeared to be dried blood on the shirt and arms of this woman. I also recall her saying that she had been driving the car and had extricated herself from the vehicle. This woman, who would later identify herself as Rhonda Davis...from an Evans Head address was moving without assistance. Although she appeared to be emotionally upset, she was also able to respond to our questions and directions. I asked if she was injured, to which she replied words to the effect of, 'No. I'm not'. I asked her to sit nearby our ambulance with a member of the public who I instructed to observe Davis and to raise my attention if anything changed."

After the arrival of the intensive care paramedics and the police and the VRA and the Westpac helicopter, Mr Doolan and his partner attended to Ms Davis. Mr Doolan's statement continues thus:

"11. Rhonda Davis was placed into back of ambulance 4532 with a member of Casino VRA while Paramedic Eames and I continued to assist Intensive Care Paramedics with extrication of the patient from the damaged vehicle following VRA intervention/assistance. Following extrication, I remained to assist the ICRs while my patient attended to Rhonda Davis who was still seated in ambulance 4532.

12. It was decided that Rhonda Davis would be conveyed by road to Casino Hospital for observation/treatment. I drove ambulance 4532 from the collision scene to Casino Hospital while Paramedic Eames monitored Davis' condition in the back of the ambulance whilst en route. Shortly after our departure, the extricated male person was transported to the Lismore Base Hospital via Westpac Rescue Helicopter. Upon our arrival at Casino Hospital, Rhonda Davis was admitted into the care of staff from the hospital's accident and emergency department.

13. Later that same evening (22/09/2013), Rhonda Davis was transferred from Casino to Lismore Base Hospital in ambulance 4532. At this time Paramedic Eames was the driver and I was the treating officer. During the journey, Rhonda Davis remained compliant with my requests and followed our instructions.

14. I do not recall anything out of the ordinary in relation to Rhonda Davis' demeanour during the period of time I had contact with her."

In simple terms, an expert paramedic who, no doubt, has dealt with many cases of road trauma and many cases involving intoxication and drug addiction, did not observe anything to suggest to him that her behaviour was affected by alcohol or drugs.
Also in evidence are statements made by Senior Constable Alissa Watts and Senior Constable Scott. In Senior Constable Scott's statement, which is exhibit 19, he mentions his interaction with Ms Davis in pars 5, 9 and 11 and mentions nothing about Ms Davis being affected by alcohol and/or drugs. Furthermore, he interviewed, as I have already mentioned, Ms Davis at the hospital ending at 5.02pm and there is nothing in the interview which suggests that Ms Davis was not in complete control of her faculties.
Because of the lack of evidence and the state of the law, I cannot find that Ms Davis' ability to drive the motor vehicle was affected by her ingestion of alcohol or any illicit drugs at the time that she fell asleep whilst driving, leading to the accident which led to Mr Connors' unfortunate death.
However, that is not the only basis on which the defendant pressed the issue of the deceased's contributory negligence. The other matter put forward by the defendant was Ms Davis' lack of sleep which must have been known to Mr Connors and which, on the evidence of Ms Davis herself, she had drawn to his attention. As I mentioned earlier, Ms Davis had not had any sleep for some 32 hours. If one accepts that she woke at 7.30 rather than 8.30, she had not had any sleep for 33 hours. During those hours, she worked a shift at the Rod and Reel Hotel in Woodburn. She had then driven back to the residence she occupied with Mr Connors and the plaintiff in Beech Street, Evans Head and then had driven to the dance party near Rappville. She made it clear that she had no sleep at all whilst present at the dance party and she would have left the party at about 2 o'clock or thereabouts in order to drive home on the Sunday afternoon. Her evidence is that not only was she without sleep but she had spent most of her time dancing. The dancing continued into the morning of the Sunday and into the Sunday itself. The plaintiff and Mr Burnie did not leave the dance party until approximately 10pm on the Sunday night.
There was evidence given by both Ms Davis and the plaintiff and Mr Burnie that immediately prior to leaving the dance party Matt and Rhonda were playing frisbee with a group of some 10 people and that Ms Davis was catching and throwing the frisbee without any difficulty. That evidence was introduced, no doubt, to counter any suggestion that Ms Davis was affected by drugs and/or alcohol but it also indicates that she was being active and not resting in any fashion. Her evidence is that the only resting was for a very short, ephemeral period of time when they sat on the bean bags whilst drugs were being administered. This is not a mere 32 hours of being awake, it is 32 hours of being active in movement.
Unsurprisingly, Senior Constable Scott asked Ms Davis some questions about how she was feeling at the time of driving. The questions and answers are these:

"Q. Do you remember leaving the party when you were driving?

A. Yeah.

Q. Were you feeling tired then?

A. I wasn't tired and yawning but I was buggered, yeah.

Q. Yeah. You were exhausted?

A. I was.

Q. Yep?

A. I'd been dancing and hadn't slept.

Q. Ah, hmm. You hadn't slept. Yeah. Okay. Do you remember falling asleep at all?

A. No.

Q. No?

A. I just remember waking up and the car was off the road and was going for a pole."

She went on to say that after the vehicle collided with the power pole it rolled a few times but we know from what was said in his statement by Paramedic Doolan that the vehicle ended up sitting on its four wheels. The inference to be drawn is that Ms Davis probably succumbed to what is these days called a micro sleep and left the carriageway. She also had a vague recollection of Matt waking up. In answer to a later question, this evidence was given:

"Q. Was Matt awake at all before that, do you know?

A. I think I can just remember him just screaming when the car went off the road, you know, but I woke too. I think he woke then and just yelled, like, I'm not sure 'cause it happened so fast."

Ms Davis made it clear that she spent most of her time at the dance party with Mr Connors. They were a "couple" and her evidence is that neither he nor she had any sleep at all. Therefore, Mr Connors must have known that she had no sleep. Furthermore, as they were living together as man and wife, Mr Connors would have been aware of her getting out of bed and going to work and then returning from work to collect him before driving them both to the dance party.
Ms Davis told me that when she and Mr Connors got into the car in order to drive back home to Evans Head, Mr Connors put on his seat belt, which was unusual for him according to Ms Davis, and crossed his legs and arms and told her that he would see her again when they arrived home. She said that he then went to sleep straight away. She also told me that when they reached the main road, by which I infer she meant the Summerland Way, she asked Matt to stay awake to help assist her stay awake and was told merely that "you'll be right" or words to that effect. Furthermore, Ms Davis told me that 10 kilometres south of Casino is a sign advertising the presence in that town of a McDonald's outlet and she spoke to Matt at that stage of the journey and mentioned that she would visit the McDonald's outlet and that they could each partake of coffee. Again, that was vaguely acknowledged by Matt. In other words, Ms Davis realised that she was at risk of falling asleep whilst driving and had drawn that to the attention of Mr Connors, who merely trusted in her ability to stay awake, but must have known that she had not had any sleep for at least some 32 hours.
The question for me really is what did Ms Davis mean when she said, "I wasn't tired and yawning but I was buggered", as she said to Senior Constable Scott when interviewed after the accident. Driving a motor vehicle is not physically demanding. Driving a motor vehicle, however, requires constant mental effort, alertness and awareness of what is going on. Ms Davis clearly admitted that she felt physically exhausted but probably thought she was alert enough mentally to drive. Unfortunately, that was an erroneous decision on her part. To use biblical language, the spirit may have been willing but the flesh was weak (Matt 26, 41; Mark 14, 38).
Mr Connors must have known of her lack of sleep and had drawn to his attention that she required assistance to stay awake but ignored the inferences to be drawn from those requests.
The plaintiff submitted that to make a finding of contributory negligence based upon Ms Davis' lack of sleep I would need expert evidence just as I needed to have expert evidence to deal with the allegation of having her ability to drive impaired by her ingestion of alcohol and/or illicit drugs. I cannot accede to that submission. One of the experiences of every human being is the need to sleep. As a judge sitting without a jury at nisi prius I am permitted to use such knowledge as a jury would use if the facts were being determined by a jury. Of course, if there were a civil trial it would be a jury of four not 12. Even so, they could use their ordinary commonsense and experience of life in making determinations of fact, just as juries in criminal trials are exhorted to use their experience of life and commonsense. Human experience indicates that staying awake and exercising constantly for a period of some 32 hours or 33 hours will cause physical exhaustion and, no matter how determined one's will might be to stay awake, such determination can be overcome by physical fatigue.
I have no hesitation in finding that the ability of Ms Davis to drive was affected by her lack of sleep and that the defendant knew or ought to have known of that lack of sleep and of the fact that Ms Davis was liable to fall asleep whilst driving between Rappville and Evans Head. Whilst s 138 of MACA does not apply in this case, certain provisions of the Civil Liability Act 2002 apply to motor accidents. The relevant provision is s 3B(2) of the Civil Liability Act 2002 and, in particular, par (e) of that subsection which applies Pt 3 of the Civil Liability Act and pt 3 relates to mental harm. Section 30(3) of the Civil Liability Act provides this:

"Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recoverable from the defendant by or through the victim on the basis of the contributory negligence of the victim."

Here the victim is Mr Matthew Connors. His contributory negligence must pro tanto reduce the current plaintiff's damages.

The issue then becomes to what extent ought the damages be reduced because of the plaintiff's father's contributory negligence? As is obvious from the pleading which I quoted earlier in these reasons, the defendant determined that the damages ought be reduced by 70%. Quite frankly, I find that to be an absurd proposition. We are here considering the relative culpability of two persons for a motor vehicle accident and the primary culpability must rest with the driver. After all, if Ms Davis correctly assessed the situation she would not have got behind the wheel of her vehicle. She could have said to Mr Connors, "Let's sleep for a while and then we'll drive home". If the couple had slept commencing at 2 o'clock they could have had eight hours of refreshing sleep until 10pm and then travelled home at that time as the plaintiff and Mr Burnie. Ms Davis did not give any particular reason why the couple left the dance party at the time they did. One reason, of course, might be that she had to work later that night but there is no such evidence given.
In the circumstances, the primary responsibility for the accident must fall upon the driver herself. Acknowledging that sub silentio, learned Senior Counsel for the defendant, Mr Williams SC, submitted, in essence, that Matt and Rhonda were in pari delicto and that 50% of the liability for this accident should be attributed to Mr Connors. Consistent with what I have already said, I cannot accept that submission either.
However, it appears to me that the contributory negligence of the victim was substantial. He had it drawn to his attention twice before the accident that the driver was feeling as if she was going to fall asleep. He ought to have been well aware of the extent that she was lacking sleep. Ms Davis, at the time of the collision, was younger than the victim. He was 37 years old, she was 32 years old. However, it is not as if the victim were in his dotage and the driver was in his or her late teens or early 20s, when people can be very alert. The difference in age is, in my view, not significant. Doing the best I can, I believe that one third of the liability for this accident should be attributed to the victim, Mr Connors, for his failing to heed the fact that the driver was deprived of sleep prior to entering and driving the vehicle. The particular of negligence is (e) which I quoted above.
A further submission put by the plaintiff is that the particulars that were pleaded did not advert specifically to the request that Ms Davis made to the victim, Mr Connors, that should have alerted him to the fact that she was feeling sleepy. However, that is only an evidentiary point, not a pleading point but is also consistent with particulars of negligence pleaded in (h) of the pleading which I quoted. I reject the submission that that matter needed to be specifically pleaded.

LUNCHEON ADJOURNMENT

Damages - Personal history

The plaintiff was born in March 1996. As I mentioned earlier, she was 17 years old at the time of the death of her late father. She is now 24 years old. The plaintiff was born and grew up in Glen Innes. Her childhood appears to have been beset with difficulty. The plaintiff was examined by Dr Mark Scurrah on 26 September 2018 and 10 December 2018 as an assessor for the Medical Assessment Service under MACA. His certificate and report is exhibit G. His family history is this:

"Her biological mother and father separated when she was three. Her father died in a motor vehicle accident in 2013 ... Her younger brother died from suicide last year at the age of 17. Ms Connors advised he was drinking heavily. He hung himself in her mother's backyard. She did not see his body.

There is a significant family history of polysubstance abuse. Both her mother and father have a history of drug use. Her mother no longer uses illicit drugs."

For the defendant, the plaintiff was interviewed by Dr Chris Rikard-Bell, also a psychiatrist. Dr Rikard-Bell's Personal History is this:

"Ms Connors is one of two siblings. There was a brother named Daniel who died from suicide in 2017. Her parents separated when she was about four years old. She grew up in Glen Innes and her father spent some time in prison. After her father was released from gaol, her parents separated. She remained with her mother for a number of years and her mother repartnered with Greg and there were three younger siblings to the relationship. Her mother continued to care for her and she attended Glen Innes Public School where she was not very strong academically but did well socially. In high school she attended Glen Innes High School from Year 7 to Year 9, then she moved to Evans Head for one year. Ms Connors returned to Glen Innes for a short time then did Year 10 and 11 at Evans Head [High School] when her father died. She related well to her father."

The plaintiff has attended upon doctors at the AMH Medical Centre at Glen Innes and also at the Evans Head Medical Centre. She may have attended upon other general practices at other times, for example, when she was living temporarily near Casino. There are some relevant entries in the records of the plaintiff's general practitioners.
The plaintiff admitted that she started smoking tobacco in 2010 when she was 13 or 14 years old. She admitted that at the same time that she commenced smoking tobacco she also started smoking cannabis. On 25 January 2011 she consulted Dr David Cannon at the Evans Head practice. At that time, she admitted to smoking 20 cigarettes per day. On 20 June 2011, she consulted Dr Patricia Mackay at the Glen Innes practice. She attended there because of her smoking habit. Thereafter, the records of both practices are replete with mentions of the plaintiff's suffering from respiratory problems including asthma and bronchitis.
On 2 April 2012, the plaintiff consulted Dr Kerry Seeger at Evans Head concerning her diet, with a complaint of lethargy. On 18 April 2012, Dr Seeger diagnosed low blood iron levels. On 14 May 2012, the plaintiff attended upon Dr Mackay in Glen Innes and told her that she was now living at Evans Head and complained that she had had a number of blood tests. Again, it appears that this was related to her low iron levels and perhaps lethargy. On 26 July 2012, the plaintiff attended upon Dr Seeger in order to have some immunisations required for her new traineeship.

Traineeship

The traineeship began on 29 August 2012. The traineeship was to obtain a Certificate II in Water Operations. She was required to attend school four days a week and to attend TAFE in Lismore on one day a month. The TAFE training commenced on 29 June 2012 and was due to be completed on 31 December 2013. However, the traineeship went until 31 October 2014. By that time, the plaintiff would have been in year 12 and have attained the age of 18 years. It is clear from Pt 2 of the training plan, which is exhibit J, that the courses that she was required to undertake after the ending of the monthly TAFE attendances were practical. The employer, for the purpose of the traineeship was Novaskill at Ballina. The traineeship was being conducted at the Evans Head Depot of the Richmond Valley Council. The plaintiff was due to attend one day per week at the Evans Head depot to carry out practical training for her traineeship. Although she was working under the council, the employer was, in fact, Novaskill. The plaintiff wished to complete the traineeship and obtain a job with the Richmond Valley Council. She believed that that would offer her security and stability. Considering what may have been a somewhat tumultuous childhood, her desire for stability and security is completely understandable and acceptable.

Further medical history

On 17 October 2012, the plaintiff attended upon Dr Seeger at the Evans Head practice. She told Dr Seeger that she had punched a tree with her right hand and she had pain over the lateral right hand. She also gave a history of repeated chest infections every three months and also some urinary problems. It transpires that the plaintiff had, in fact, fractured her fifth metacarpal and the plaintiff was required to attend the Lismore Base Hospital orthopaedic clinic on 18 October 2012 for possible surgery. At the time of the consultation on 17 October 2012, the plaintiff admitted to being angry, anxious and jittery.
On 22 October 2012 the plaintiff attended again upon Dr Seeger complaining of flu like symptoms. However, she admitted to drinking alcohol and Dr Seeger recorded "drinks one half bottle". However, what the bottle was of is not stated. The inference to be drawn from the evidence I have heard is that it is likely that it was spirits. At that time, the plaintiff was found to have a tremor. There were also complaints which Dr Seeger summed as "anxiety". The doctor referred the plaintiff to Ms Trish Lee at Evans Head Community Health. The referral letter commences thus "Thank you for seeing Summer Connors, for an opinion and management of anxiety/anger and previous diagnosis of depression". There is nothing in evidence from Ms Lee or the Evans Head Community Health and, in particular, there was nothing produced by the Evans Head Medical Centre from Ms Lee, so it does not seem likely that the plaintiff attended upon Ms Lee as had been requested by Dr Seeger.
On 13 March 2013, the plaintiff attended upon Dr Seeger again complaining of fatigue. She also told Dr Seeger that sometime in 2012 she had suffered from glandular fever. The plaintiff also had a dermatological complaint at that time which was initially diagnosed as tinea versicolor but was subsequently diagnosed as pityriasis versicolor. There was no significance in the dermatological complaint which appears to have been transitory.

Her next relevant attendance was on Dr Seeger on 17 May 2013. There appears to have been some concern as to whether the plaintiff had contracted hepatitis B. Fortunately, she had not. Dr Seeger's notes continued thus:

"Seeking counselling to help with communication skills. She lacks self-esteem. Wants to talk to someone. Has anger issues, gets frustrated and then angry. Has self-harmed in the past. Has family problems and is, at the moment, living with her auntie in Evans Head. Going to her mum's in Glen Innes tomorrow. She says her mum is supportive. Has been drinking alcohol, one night a week...drinks to get drunk."

A referral was made by Dr Seeger on that occasion for the plaintiff to attend upon Tarmons House Mental Health Service in East Lismore but the plaintiff took some time before she went to that practice. At the time of her attendance on 17 May 2013, Dr Seeger completed a mental health plan. The problem identified in that document is poor self-esteem. The goal identified was to improve the plaintiff's daily skills and self-esteem. Beneath that has also been written that a goal was coping with her anger issues. It was for those purposes that the plaintiff was referred for counselling. A K10 questionnaire was completed at this time. The plaintiff said that she felt nervous some of the time. She said that she felt restless or fidgety some of the time. She felt a little of the time nervous, hopeless, restless and feeling so sad that nothing could cheer her up. The levels range between "none of the time" and "all of the time" and most of the complaints appear to have been modest.

On 16 July 2013, the plaintiff attended on Dr Seeger again. She told Dr Seeger that she had not gone to Tarmons House yet. She said that she was living with some people and had no permanent home. She also said that she had a new partner. That is likely to be Mr Burnie. On 14 August 2013, the plaintiff saw Dr Katherine Wallis about chronic persistent asthma.
On 19 August 2013, the plaintiff attended upon Tarmons House. By this stage, she was living with her father and Ms Davis in Evans Head. She completed a questionnaire at Tarmons House in which she identified Rhonda Davis as her "auntie". She was, in fact, her father's girlfriend. When asked as to whether she had received any prior mental health care, the plaintiff said that she had received such care from a school counsellor at the age of 13. That would have been when she was in Glen Innes. Exhibit 14 is a letter from Tarmons House bearing date 19 September 2013. That letter says this:

"Summer is participating in our Better Outcomes Program and has now attended an initial appointment with me on 19/08/2013. My initial assessment and opinion is that Summer is suffering from a personality disorder (BLPD) overlaid with polysubstance abuse (THC and ICE), alcoholism ("drink 'till I am dead drunk") ODD, anxiety, depression and social difficulties.

Perhaps the best long term solution will be Detox closely followed by intensive in house Rehabilitation.

At this stage, the plan is for Summer to have six consecutive sessions and then we will review progress. I will provide you with a brief report either at the end of this period or, if therapy is terminated, for any other reason."

The letter is signed by a female psychologist named Natasha Lakaev.

In the defendant submission, this letter is important because it bespeaks of the plaintiff as having major mental health problems a month prior to her late father's death. However, care must be exercised. The plaintiff has been seen by three different psychiatrists; Dr Scurrah for MAS, Dr Ben Teoh for the plaintiff's solicitors and Dr Rikard -ell for the defendant's solicitors. None of those gentlemen diagnoses a personality disorder. By definition, a personality disorder is something which is irreparable and persistent. The plaintiff does not now have a personality disorder and it is, therefore, extremely unlikely that she was suffering from a personality disorder in August of 2013.
The plaintiff did admit to using cannabis and had used crystal methamphetamine on a few occasions. Based on that, the psychologist has diagnosed "polysubstance abuse" but that is merely saying that she has in the past used cannabis and crystal methamphetamine. The plaintiff admits to having used alcohol once per week and often drinking to excess, hence the diagnosis of alcoholism. The diagnosis of ODD is a diagnosis of an Oppositional Defiance Disorder which really means having symptoms that most teenagers have at some time in their life.
That the plaintiff has social difficulties is undoubted, bearing in mind her familial history. The plaintiff had also complained about anxiety and depression. Merely by capitalising those complaints, one turns the complaint into a diagnosis. Furthermore, I, for one, am very prone to applying Occam's razor: why does one need to postulate seven conditions when all of the complaints may represent merely the result of growing up or may represent one relevant psychiatric complaint or condition.
It appears that the plaintiff only attended upon Tarmons House on that one occasion. On 30 August 2013 the plaintiff went back to see Dr Wallis at the Evans Head practice. She still had a chest complaint and the diagnosis was again chronic asthma and bronchitis. On 10 September 2013, the plaintiff saw Dr Ann Tosomeen at the Evans Head practice. She had a gynaecological complaint which is irrelevant. However, she did admit to recently having got quite drunk. She told Dr Tosomeen that she would like to see a counsellor and that she was able to get a lift to Tarmons House with the lady with whom she was living. That clearly is Ms Davis. That is the last recorded attendance upon a medical practitioner prior to the dance party at Rappville on the weekend of 21 and 22 September 2013.
I accept that antecedent to that event the plaintiff had some problems but many teenagers have problems moving from childhood to adulthood. The plaintiff's use of alcohol, to the extent that she used it to get drunk, is concerning, as is her use of cannabis and occasionally of crystal methamphetamine. However, such drug and alcohol use is, again, something that is fairly widespread amongst teenagers these days. However, nothing of the plaintiff's antecedent physical and mental problems accounts for the state in which the plaintiff now finds herself following the death of her father.

Relationship with her father

She was very close to her father. In a statement that she made on 7 December 2016, which is exhibit A, the plaintiff said this:

"11. I remember my dad to be my best friend. He was everything to me and he did everything I asked him to do for me. He was always there for me too.

12. I enjoyed going fishing with my father and it was a regular hobby and pastime. Merely being in his company made me extremely happy."

In her oral evidence, the plaintiff described her father as being her rock, as providing for her emotionally and physically when needed. She also told me that, for example, she and her father used to talk about her future, her father encouraged her to take up and pursue the traineeship. Her father also talked to her about long term relationships and how, in due course, he would look after her children when she had children, so that she could continue working for the council whilst her children were young.

The extent of the plaintiff's reaction to her father's death is indicative of there being a close relationship, giving her some stability in what may have been an otherwise tumultuous life. Furthermore, things were starting to go right for the plaintiff. She had formed a relationship with Mr Samuel James Burnie. Mr Burnie told me that he was "hooked" on the plaintiff prior to her father's unfortunate death. At the time of her father's death, Mr Burnie was 29 years old and is currently 36 years old. He clearly is 12 years older than the plaintiff but his relationship with the plaintiff has perhaps been somewhat of a saviour for her because he has been able to provide some of the stability which her late father did. Indeed, Sam was a friend of the plaintiff's father and it was through his friendship with the plaintiff's father that he came to know the plaintiff.

Plaintiffs’s mother

At this stage, it is appropriate to say something about the plaintiff's mother. Her name is Deanne Johnson. As the histories which I have recorded indicate, she formed a new relationship with a gentleman named Greg. Ms Johnson and Greg have three daughters, the plaintiff's half-sisters. At the current time, the plaintiff's relationship with her mother is strained. In a statement made on 1 April 2020, which is exhibit B, the plaintiff said this "My mother has just come out of jail[sic]. She was in for 47 days". When discharged from prison, the plaintiff's mother moved in with the plaintiff and Sam. Sam gave evidence that the plaintiff's mother occupies the garage of their current accommodation, which she uses as a "granny flat" and she does absolutely nothing around the house and has to be, in essence, cared for and catered for by Sam. The plaintiff's youngest half-sister is also now living with them. She is supposed to be attending boarding school in Southport in Queensland but currently can not attend there because of that State's lockdown. The 12 year old lass lives in a corner of the upstairs living area of the plaintiff's current residence. She does extremely little around the house. The other two half siblings are living with their father in Grafton.
Sam gave evidence, which I have no hesitation in accepting, that the plaintiff's mother is a "nervous wreck", incapable of doing anything and that appears to have been her state since Daniel's unfortunate suicide in May 2017. In other words, the plaintiff, since at least May 2017, has received little, if any, support from her mother.

Plaintiff learns of her father’s death

I return to discussing the plaintiff. She and Sam attended the dance party at Rappville. They clearly went there early on the Saturday and left later on the Sunday. The plaintiff only found out about the motor vehicle accident sometime after leaving Rappville when the party in which she was travelling stopped at the McDonald's outlet at Casino for a late night snack. In her statement of 7 December 2016, the plaintiff said this:

"27. I was at a McDonald's drive-thru sitting in a car with my friends when I received a telephone call on my mobile informing me of my father's critical condition.

28. I remember jumping out of the car, running towards an open space and I sat down and broke down. I was crying hysterically and my friends attempted to console me.

29. All that I was thinking about was that I wanted to get to my father. I was feeling numb.

30. My partner drove me to Woodburn and we stayed there until the next morning when we headed up to [Royal Brisbane Hospital] to see my father.

31. When we arrived at [Royal Brisbane Hospital] we headed

straight for the Intensive Care Unit.

32. Due to his many severe injuries, my father's face was unrecognisable. My father suffered a broken neck, collapsed lungs, broken jaw, sprained wrists and cuts to his legs.

33. I stayed at the hospital for the next three days and only went to the hotel to sleep."

The report of the Queensland Coroner at Brisbane is exhibit D. That says this:

"CT imaging at the Royal Brisbane Hospital confirmed:

Diffuse subarachnoid haemorrhage;

Multiple basal skull and facial fractures;

Fractured mandible;

Vertebral fractures of CI and C and transverse processes;

Bilateral intercostal catheters and pneumothoraces;

Pulmonary contusions.

An external ventricular drain was surgically inserted to relieve intercranial pressure. He was cared for until the time of his death.

He died in hospital on 25 September 2013. An autopsy performed by forensic pathologist, Dr Forde, determined Matthew died due to multiple injuries sustained in the motor vehicle accident in which he was a passenger."

The plaintiff told me, and I accept, that her father was declared to be brain dead and permission was given for his life support system to be turned off by the deceased's mother, the plaintiff's paternal grandmother.

The significance of quoting that medical evidence about the deceased is to draw attention to the effect that seeing her father in that condition had upon the plaintiff. Dr Scurrah obtained this history:

"She saw his traumatised body in a Brisbane based hospital. At the time, she had been advised by medical staff his condition was terminal. She viewed his live, traumatised body in hospital. He was unconscious. His face was badly swollen and there were various catheters inserted into his body. Blood was oozing from his nose. She recalls being told, in graphic details, that her father was brain dead."

Dr Scurrah went on to say this:

"A posttraumatic stress disorder developed. She is uncertain when it precisely developed. She began to re-experience aspects of her traumatised father's body (as she viewed it in hospital). The traumatised body would be visualised in daytime images/thoughts and intermittently in nightmares. Re-experiencing was distressing. There are a range of triggers for it. She will attempt to avoid those triggers."

The three psychiatrists are unanimous in diagnosing a posttraumatic stress disorder. It has persisted now for almost seven years and Dr Scurrah has certified that the PTSD is chronic. Dr Scurrah's certificate is this:

"The following injuries caused by the motor accident give rise to a permanent impairment which is greater than 10%:

A chronic Post Traumatic Stress Disorder.

A chronic Depressive Disorder with anxiety symptoms.

Cannabis Dependence.

Panic Disorder with agoraphobia."

The Court is bound by that certificate. Dr Ben Teoh examined the plaintiff by telephone on 17 April 2020. He diagnosed a Chronic Post Traumatic Stress Disorder, a Major Depressive Disorder and Cannabis Use Disorder. He thought that the Cannabis Use Disorder was secondary to the PTSD and the Major Depressive Disorder and each of those was caused by her father's death in a motor vehicle accident. Dr Rikard-Bell accepted that there was a Chronic PTSD which he thought was in partial remission. He also diagnosed a Depressive Disorder which had remitted, that is that the plaintiff had recovered from it and he was also of the view that the plaintiff had a Cannabis Use Disorder.

However, he would not accept that the Cannabis Use Disorder was causally related to the motor vehicle accident. He said this:

"As reported in the notes and in the consultation three days prior to her father's death, there was a Persistent Depressive Disorder with

polysubstance abuse prior to the motor vehicle accident. Following the motor vehicle accident, there was an exacerbation of the polysubstance abuse and the Persistent Depressive Disorder increased in intensity and developed into a Major Depression.

Subsequently, the polysubstance abuse has continued and is now currently in the form of marijuana use up to 40 cones per day. The Major Depression seems to have fluctuated and is now reduced back to a Persistent Depressive Disorder. Therefore, there was an exacerbation of the Depressive Disorder and the polysubstance abuse from the motor vehicle accident. The exacerbation has now remitted and she has now returned to her pre-existing Persistent Depressive Disorder and polysubstance abuse. The condition caused by the motor vehicle accident was the Post Traumatic Stress Disorder in partial remission, which I have outlined above and this is untreated and still persistent."

Dr Rikard-Bell's reference to the notes is a reference to general practitioner's notes with which he was provided and the "consultation" three days prior to her father's death is a reference to the letter from Tarmons House which is dated 19 September 2013 but refers to an interview on 19 August 2013. The doctor has misread the report. However, Dr Rikard-Bell appears to have taken what the psychologist, Ms Lakaev, said as some form of formal diagnosis which is something I do not accept. One of the problems with modern psychiatry is the use of the various terms of DSM. The Diagnostic and Statistical Manual lists conditions by way of a listing of symptoms and their duration. Sometimes one psychiatric problem may satisfy the description of a number of psychiatric conditions and psychologists and psychiatrists are prone to listing each possible condition satisfied by the list of symptoms. Again, as I said, I am prone to applying Occam's razor but, on this occasion, that is not open to me because of the certificate of Dr Scurrah.

However, to suggest that the plaintiff is no longer profoundly depressed is erroneous. I have heard her and seen her in the witness box and accept that she remains highly depressed. I also accept that there was a substantial change in her cannabis use after her father's death and that that change persists. Indeed, Dr Scurrah said this:

"Whilst there was a pre-existing Cannabis Abuse, it is now Cannabis Dependence. She has attributed increased cannabis use to her father's death. Chronologically, it occurred following her father's death when she was living with her father's partner. Cannabis dependence is causally related to the accident."

However, Dr Scurrah did not accept that a alcohol abuse, if it persisted, was causally related to the motor vehicle accident currently in question. As to the Chronic Depressive Disorder, he said this:

"The chronic Depressive Disorder with anxiety symptoms emerged following the accident. It partially deteriorated with the birth of her child. However, the majority of it is chronologically related to the motor vehicle accident."

The doctor was referring to an episode of postpartum depression following upon the birth of the plaintiff's first child, Eyla, on 15 January 2017. Subsequently, the plaintiff and Mr Burnie have a son, Xenith, born on 29 February 2020. Whether that has caused an increase in the plaintiff's depression I do not know because that issue has not been addressed in the recent medical reports.

I accept that antecedent to her father's death, the plaintiff was using cannabis and very occasionally, a few times only, crystal methamphetamine but that there was a substantial increase in her self-medication following upon her father's unfortunate death. All the evidence I have heard points to the Cannabis Dependence setting in after her father's unfortunate death. It remains. It also points to the Chronic PTSD persisting and also points strongly in the direction of the Depressive Disorder continuing.

Plaintiff’s living arrangements

A key to understanding what has occurred to the plaintiff is to understand her living arrangements. They can be gleaned from a number of sources. At the time of her father's death, the plaintiff was living with Ms Davis in Beech Street, Evans Head. She continued to live there for "a few months". Those are words used by Sam in [18] of his statement made on 9 April 2020 which is exhibit O. Sam and the plaintiff then sought to live in Grafton. [20] of his statement is this:

"We tried to move out together and legally rented a house in Grafton but after three days the real estate came and evicted us. They took a week's rent and we ended up on the streets."

They then moved to live with the plaintiff's grandmother on the Old Grafton Road, Glen Innes. On or about 2 October 2015, they moved to Tareela Court at Spring Grove, which is near Grafton. In approximately September of 2016, they moved in to live with Sam's mother at River Street, Woodburn. They were living there when Eyla was born on 15 January 2017. They then moved to Evans Head where they lived for some two years. That can be found in exhibit B[4]. In December 2019, they moved to premises at 6 Youngmans Road, Marom Creek where they lived until relatively recently, then moving to a home unit in Grafton Street, Woodburn.

A plan of those premises is exhibit 1. A photograph of the exterior of the residence is exhibit 2 and photographs of parts of the interior of the residence are exhibits 3 to 8. The apartment has two storeys. There is a garage on the ground floor but no separate entry from the garage directly into the house. There is one room downstairs and a lavatory in one small room of it. It appears to have been designed to be a utility area and there is a sink in one corner which may have been designed to accompany a washing machine. However, it is clear that the stove in the house has been inserted into this ground floor accommodation because there was an aperture for it in the upstairs kitchen but there is no stove there. Sam pointed out that the stove that the owners wanted to install was too big for the actual kitchen, hence it was placed downstairs. Upstairs, there are two bedrooms, one of which is occupied by Eyla and the other is occupied by the plaintiff and Sam and their recently born son. As I said earlier, in the upstairs living area sleeps the plaintiff's 12 year old half-sister. The accommodation is not particularly large. A piece of the verbiage contained on the exhibits to which I am referring describes the unit or townhouse as "funky". I do not know what that word is supposed to imply and I do not intend to invade the area of real estate hyperbole and misdescription. The upper storey does, however, have a charming view over a sugar cane farm.

As I mentioned earlier, the plaintiff continued to live with Ms Davis after her father's death. It appears that they got on all right initially, although the plaintiff now professes to be angry with her for having killed her father. The plaintiff describes Ms Davis as a "drug dealer" but no one suggested that to Ms Davis herself. However, the evidence is that she supplied cannabis and perhaps other drugs to the plaintiff to help her self medicate to overcome her grief. Exhibit B contains this evidence:

"31. I have been self-medicating since my father's death for grief, posttraumatic stress, anxiety and depression.

32. I had been smoking marijuana on and off before Dad's sudden departure but afterwards I became heavily dependent on it to get through the day. I began smoking 40 to 50 bongs a day.

33. The defendant, Rhonda, with whom I was living at the time, was a supplier and provided me with the drug as often as I needed it.

34. I also used methamphetamine every few days which I had only experimented with before Dad's accident.

35. There was the occasional binge on alcohol too."

Further visits to doctors

The first visit of the plaintiff to see a doctor after her father's death was a visit to Dr Seeger at Evans Head on 4 December 2013. At that time, the plaintiff had a chest problem. Dr Seeger's notes continue thus:

"Lost her father two months ago, not going to school. Had one appointment at Tarmons House but needs to talk with someone."

The diagnoses made by Dr Seeger on that occasion were a grief reaction and chronic persistent asthma. A grief reaction is a normal human reaction to something such as the bereavement from a close relative. The plaintiff's reaction has not been normal. She returned to see Dr Seeger on 24 March 2014. She told Dr Seeger of persistent depression after losing her father. She told the doctor that she had not taken "ice" for three months but was still using alcohol. The plaintiff told her that she did not follow up with the counsellor at Tarmons House who had given her "seven diagnoses". Again, the plaintiff said she would like to talk with someone.

The next consultation was on 31 March 2014, a week later. The plaintiff told Dr Seeger that she would see a counsellor at Tarmons House. They discussed the results of laboratory tests which had been carried out following upon the examination on 24 March 2014. The plaintiff told Dr Seeger that on the weekend in between that there had been a "big weekend with alcohol, etc". Again, the doctor diagnosed depression and polysubstance abuse. The plaintiff told the doctor that she was going to see her mother in Glen Innes soon. That may represent the time when the couple moved to live at Glen Innes. There was a further consultation with Dr Seeger on 24 April 2014 about a completely unrelated problem. The plaintiff had a small abscess in her left armpit. There was then no consultation with the Evans Head medical practice until October 2016.
The next consultation with a general practitioner was in Glen Innes. That was on 11 July 2014 with Dr Patricia Mackay. Dr Mackay's notes are these:

"Centrelink want her to study, unable to do this after Dad's death in a car accident. Saw a psychologist in Evans Head. Only saw him once. The psychologist said she had several things wrong with her, want her to work or study. Sees a social worker, Marjorie, re further treatment. Sees her in Glen Innes after 23 July. Living with her grandmother. It is too hard in Evans Head."

On that occasion, Dr Mackay issued a certificate which is part of exhibit 11. She diagnosed anxiety and depression.

On 31 October 2014, the plaintiff's traineeship was due to end, however, it was never completed. The plaintiff abandoned it after her father's death. I shall return to this issue later. On 22 April 2015, the plaintiff saw a general practitioner at Glen Innes about a completely unrelated problem.
On 30 April 2015, she saw Dr Patricia Mackay again. The notes made by Dr Mackay contain this:

"Summer is claiming victims compensation over the death of her father. Four of them went to a doof party, her Dad, Rhonda, Summer and her boyfriend. Summer stayed. Rhonda and Summer's Dad left the party. Then Summer got a phone call advising her that the others had had a phone call. Dad seriously injured. Transferred to Brisbane. Dad has serious brain injuries and died three days later. Had one month off work over this incident last year, can't socialise. Her boyfriend does everything for her. Becoming agoraphobic. Rhonda was gaoled for three years nine months. They will see the photos that were taken of the accident. Father was an organ donor and gave his liver. Was diagnosed with multiple problems."

Dr Mackay issued some medical certificates and prepared a GP Mental Health Plan. One of the certificates generated at that time was exhibit E, the medical certificate to be completed by a treating doctor that accompanied a document that the plaintiff submitted for the purpose of making the current claim. The mental health plan is part of exhibit 11. Its diagnoses are Depression and an Adjustment Disorder. It notes that, by that time, the plaintiff was smoking 12 cigarettes per day. The relevant personal history concerned the circumstances of the plaintiff's father's death and ticked as being abnormal were the plaintiff's mood and anxiety symptoms. The main problem identified in the document is this:

"Still unable to believe her father is dead. Can't read very well and doesn't want to do anything about it at the"

Certain words appear to have been omitted and probably the words are "current time". The plaintiff was referred by Dr Mackay to Mr Tony Dover, psychologist. There was nothing in evidence from that gentleman. The plaintiff told me that she saw him once only.

The plaintiff's next attendance upon Dr Mackay was on 14 May 2015, again, about fatigue. The plaintiff told the doctor that she was a vegetarian and that her iron levels were low. The final attendance upon Dr Mackay and the Glen Innes practice was on 14 September 2015. The notes indicate that the plaintiff was leaving Glen Innes to live at Spring Grove near Casino and "out of Lismore" on 2 October 2015. The doctor noted that the plaintiff did not finish her six sessions with Tony Dover and that the plaintiff would see a psychologist when she moved to Spring Grove. The statement that the plaintiff would see a psychologist in Spring Grove/Casino/Lismore appears to have been an idle promise. There was no evidence the plaintiff did so.
On 8 January 2016 the plaintiff had a medical problem for which she visited Casino Hospital in the morning but Lismore Base Hospital in the afternoon. She went to the Lismore Base Hospital at 3.54pm and was discharged at 8.41pm. The plaintiff had been unwell since 1 January 2015. She admitted to binge drinking alcohol on New Year's Eve, a practice indulged in by many young people in our society. The plaintiff complained of generalised body aches and pains, of hot and cold flushes and sweats, of a headache, a sore throat and a dry cough. She had developed vomiting and diarrhoea commencing on 5 January 2016. The social history is that the plaintiff was living outside Casino with her partner, Sam. She was unemployed. She was smoking up to 10 cigarettes a day. She said that she occasionally took alcohol once every few months and denied taking any other form of drug. She was diagnosed with a viral illness.
I queried whether that record needed to go into evidence but Mr Turnbull SC for the plaintiff wanted it in, despite the fact that it was Mr Williams SC who had sought to tender it. When I pointed out that it did not really advance the matter, he withdrew the tender. Then Mr Turnbull tendered it because he thought it assisted his case. It does, to an extent, because it gives me a thumbnail sketch of the plaintiff when she was living in Spring Grove. In other words, her smoking levels remained, her alcohol use had abated substantially and it appears that her cannabis consumption may have abated for some time as well.
The next medical attendance was again upon Dr Kerry Seeger at Evans Head. That occurred on 6 October 2016. The plaintiff told Dr Seeger on 6 October that she had moved from Casino. She had been seeing a doctor there who had diagnosed her as being pregnant. The estimated date of confinement was 10 February. The doctor took a past history of previous use of ecstasy and cannabis. It appeared that, whilst pregnant, the plaintiff was abstaining from illicit drugs. There were further ante natal check-ups on 1 November 2016, 30 November 2016 and 14 December 2016. On 14 December 2016, the plaintiff told Dr Seeger that she was feeling well but needed a Mental Health Care Plan. That led Dr Seeger to refer her to Mr Paul Johnson at Life Management Services in Evans Head for an opinion and management "regarding family losses". At that time, that could only be the loss of the father. The plaintiff completed another K10 questionnaire for Dr Seeger on this occasion. She admitted that all the time she felt nervous and that everything was an effort for her. Most of the time, she felt tired, hopeless, restless or fidgety, depressed and worthless. Some of the time she felt so nervous that nothing could calm her down and felt restless so that she could not sit still and felt so sad that nothing could cheer her up. In other words, on this occasion, the K10 indicates that she was grossly affected rather than the mild affectation shown in the K10 survey which was made on 17 May 2013. The difference is significant.

Plaintiff’s first child

As I have earlier indicated, the plaintiff and Sam's daughter, Eyla, was born on 15 January 2017. According to Sam's statement, that gave the plaintiff some purpose in her life. His statement contains this:

"30. This [Eyla's birth] helped lift Summer's spirits a lot. The kids are her saviour, she often says that."

The plaintiff told me and I accept that had her father not died and she had been able to find employment, she would have delayed the birth of her children until much later in her life. Such appears to be modern practice, that ladies generally do not bear children until they are in their 30s. That will require an adjustment of the plaintiff's damages and I shall refer to that at the appropriate time.

Further visits to doctors

The plaintiff's next relevant attendance upon Dr Seeger was on 15 August 2017. The doctor's notes are these:

"Breastfeeding. Brother committed suicide at age 17, mother moved here from Glen Innes lots of stress. Needs to move! Sleeps but breastfeeding. Occasional nap. Partner with type 2 diabetes mellitus Sam Burnie. No drugs or alcohol now."

Dr Seeger, on this occasion, referred the plaintiff to "Headspace" in Lismore. The opening part of the referral is this:

"Thank you for seeing Summer Connors, for an opinion and management of her significant stresses. Summer is 21 year old woman with six months old infant and very chaotic family. Her 17 year brother suicided in May 2017 and her father in motor vehicle accident four years ago (September)."

This appears to have been a further stressor. The plaintiff told me that, as far as she was concerned her brother's death was somehow related to her father's death but I would need expert evidence to so conclude. In any event, it does not appear to have caused any marked change in the plaintiff's psychiatric condition.

The plaintiff saw Dr Seeger again on 12 September 2017. She said that her anxiety and depression were "really bad" but she was still breastfeeding their daughter and she did not want to take medication. She said that she had called "Headspace" but did not make an appointment to see anyone there. That is the last consultation with a doctor at that practice recorded in the notes of the Evans Head Medical Centre. Those notes were printed out on 10 April 2018, probably in order that they be sent to the Court in obedience to a subpoena.
The next relevant medical attendance was her first attendance upon Dr Mark Scurrah for MAS on 26 September 2018. For the purpose of making his certificate and report, Dr Scurrah required a further consultation which was held on 10 December 2018.

Plaintiff’s second child

The plaintiff was delivered of her second child, Xenith, on 29 February this year. On 17 April this year she had her telephone interview with Dr Teoh and on 23 April this year an interview via Skype with Dr Chris Rikard-Bell. Those interviews were held in that fashion because of the current COVID 19 emergencyThe plaintiff is currently breastfeeding Xenith and the plaintiff hopes to wean him by the end of August this year; that is, at about six months of age.

Medico-legal presentations

When examined by Dr Scurrah on 26 September 2018, Dr Scurrah said that her affect, that is, her pattern of emotional expression, was characterised by sadness and anxiety consistent with the themes of the conversation which they had and his mental state examination on 10 December 2018 continued to reveal a highly anxious affect with moments of sadness. Dr Scurrah made this assessment of the plaintiff's functioning as at 10 December 2018:

"Ms Connors is struggling. She is reluctant to leave home on her own. She is smoking up to ten cones of cannabis per day. She is reliant on her child's father to help with meals/shopping."

He thought that the plaintiff's presentation was consistent with the history that she had provided.

Dr Ben Teoh is a consultant psychiatrist and a physician in addiction medicine. He was qualified, in particular, because of his second qualification. He noted that the plaintiff admitted that she had harmed herself by cutting her wrists. She told the doctor that cutting her wrists made her feel "high and a floaty sensation", however, she had stopped harming herself three years before the consultation when she gave birth to Eyla. Once more I note that I have already quoted a history, that indicated the plaintiff was self-harming prior to her father's death. The evidence does not permit me to say whether there was any change in her self-harming patterns. It only allows me to find that she has not self-harmed since Eyla's birth, which is something to be thankful for. Dr Teoh believed that the plaintiff needed treatment. He said this:

"She can benefit from seeing a psychologist for counselling fortnightly to monthly, for six months, to address her depression, post-traumatic stress disorder, and her cannabis use disorder, at a cost of $250 per session.

She can benefit from a referral to a psychiatrist for further evaluation, given the complexity of her problems with addiction and significant post-traumatic stress disorder and depressive symptoms. She may need antidepressant medication.

She can benefit from seeing a psychiatrist monthly for 12 months at a cost of $350 per session."

At the end of his report he added this:

"She will need intense treatment with counselling by an expert in addiction, concurrently with her treatment for PTSD and Major Depressive Disorder. The treatment can be done by a psychologist or a psychiatrist with special interest in addiction, at the cost of $250 to $350 per session, weekly to fortnightly for 12 months."

Dr Rikard-Bell was asked to provide details of the need for future treatment for disabilities caused by the death of her father in the accident. Clearly, his assessment is based purely on treating the PTSD. He said this:

"I believe that she would benefit from perhaps 36 sessions with a clinical psychologist at a cost of $250 per session and six sessions with a psychiatrist at a cost of $350 per session over a two year period."

The total cost of that treatment is $11,100. Dr Rikard-Bell was asked about the plaintiff's capacity for work. He said this:

"Ms Connors has not been working. I believe it is very difficult to accurately predict whether or not she will be able to work. Her main work has been the care of her two children. Whether she would be able to undertake paid employment in the future is still unclear. She stopped her training in Year 11.

There was no pre-existing employment prior to the motor vehicle accident and there has been no employment since that time. Her pre-accident duties were studying and she would be able to undertake some study currently. She is interested in working in disability and the Post Traumatic Stress Disorder, I believe, would impact on her ability to focus and concentrate on being able to study. Therefore, she would need to undertake some treatment in order to be well enough to study. I believe that it is still unclear as to whether she would be able to focus adequately and develop skills that could lead her to some sort of skilled employment. I believe the motor vehicle accident has impacted significantly on her ability to start and finish any educational or vocational course. Her likely mode of employment currently is unskilled work in the future. She is caring for her children adequately from her reports."

I am persuaded that the plaintiff has been unable to work to date because of the psychiatric problems brought on by the death of her father. Her problems need treatment. It is postulated that treatment will take two years. Thereafter, the plaintiff will need to undertake training and study in order to obtain employment. It is unlikely that she could not complete the traineeship which she commenced in year 10. Her preference is, as stated by Dr Rikard-Bell, to work with the disabled. That would require training and study. I would allow two years for treatment and then four years for training and study to equip the plaintiff to re-enter the workforce.
Furthermore, by that time, each of her children will be at school and she will have the ability to work without being hindered by the need to look after their two children. She can study and train while still caring for her children with her husband's assistance. I, therefore, intend to make an allowance for the plaintiff for six years into the future. I say that because the plaintiff submitted that I would make an allowance for her for seven years into the future but six years appears to me to be a more adequate period.

The plaintiff and her father

Before I continue to deal with this matter where I left off last evening, I should return briefly to consider what might be thought to be tension arising from my findings as to the plaintiff's familial background and her troubled upbringing and her relationship with her father. The first thing to note is that what is important is what the plaintiff perceived about her relationship with her father, what she actually felt, rather than the true reality. Even so, it appears to me to be probable that when the plaintiff left her mother's home at Glen Innes and moved to Evans Head she did so because that was where her father was.
It appears that the plaintiff's father did not have stable accommodation initially. There is reference in the material I quoted yesterday of the plaintiff’s having stayed with various people and she referred at some stages to an auntie. She identified the auntie with whom she travelled to the dance party on 21 September 2013 as being Davinda. I pointed out yesterday as well that in documents generated before her father's death the plaintiff referred to Ms Davis as her auntie, probably using that word, as most indigenous Australians do, as a term of respect for elders in the community. Whether the auntie or aunties with which she was staying in Evans Head before recommencing cohabitation with her father were her biological aunties or not, they were certainly close family friends. The inference to be drawn from the plaintiff's evidence is that in the whole of the time she spent in Evans Head, her father was available to her.
For example, she made reference often to her father's hobby of or passion for fishing and how she liked to accompany him when he did so and of his attempts to lure her into the same hobby and, although she was herself not much interested in fishing, she loved to be with her father when he did so. The fishing was mainly in the creek at Evans Head that flows into the sea, immediately to the north of the actual headland there and whose estuary forms a small harbour containing a small fishing fleet in that town. The important thing is that the plaintiff felt that her father was available to her and was available there to support her at all material times.

What would have happened had the death not occurred

I now turn to the issue of what would have happened had the plaintiff's father's death not have occurred. The plaintiff's case is based on the proposition that the plaintiff would have completed her traineeship at the end of 2014 and joined the employment of the Richmond Valley Council, working at its depot in Evans Head. However, the plaintiff was not an ideal or model trainee. She admitted that on a few occasions she had missed her monthly training sessions in Lismore because she was unable to get a lift to this city. It would take 50 minutes to an hour to travel from Evans Head to Lismore. There are a number of different routes. I do not know which would be the quickest. Evidence given by Sam about his current shopping arrangements indicates that perhaps the quickest route would be from Evans Head to Woodburn and then crossing the river at Woodburn and travelling north to enter Lismore from the south, rather than going via Broadwater, Wardell, Ballina and the Bruxner Highway.
In addition to missing some of the TAFE training sessions, the plaintiff also failed to attend some of her weekly job placements at the council depot. Exhibit M is a copy of the plaintiff's earnings with HGT Australia Limited, trading as Novaskill. That document shows that the plaintiff failed to turn up for work during the weeks ending 12 July 2013, 19 July 2013, 16 August 2013 and 20 September 2013. After her father's unfortunate death, the plaintiff only turned up at the council depot on two occasions, during the week ending 8 November 2013 for two and a half hours and in the week ending 22 November 2013 for six and a half hours. That represents her last attendance at the depot and thereafter one can see the plaintiff as having abandoned the traineeship.
Exhibit L is a trainee midyear evaluation made by Mr Terry Seymour on 15 July 2013. He signed the document as being the plaintiff's "teacher" but it appears likely that he was not a school teacher but an instructor with Novaskill. The first question asked was whether the trainee was on target to complete all of her job training in the required timeframe. That has been answered no. Another question is whether assignments were handed in within the required timeframe. That has also been answered no. Another question is whether the assignments and/or practical work were completed to a satisfactory standard. That has also been answered no. The next question was whether there were areas where the trainee could improve her skills. That has been answered positively and the comments made is that she needed to attend class and submit her assigned tasks. The final question asked was whether there was anything that Novaskill could do to help the trainee improve her overall performance/knowledge. That has been answered in this fashion: "Summer needs time management and prioritisation skills". There was then a section where general comments could be made and Mr Seymour has put in this: "Summer has a lot of capacity". That indicates to me that the plaintiff had the capacity to complete the traineeship if she applied herself.
The issue really is whether she would have completed the traineeship by the end of 2014 when she finished up school at the end of year 12. I am persuaded that she would have done so. She was 17 years old at this time. She was increasing in her maturity. She made it clear that she really wanted to obtain the job with the council and her father was actively encouraging her to complete her traineeship. With the traineeship period ending towards the end of 2014, I believe that the plaintiff would have "got her act together" and worked harder in the tasks she was required to do and complete the traineeship. I assign that to both increasing maturity on her part, her determination to do so and the active encouragement and support of her father. She clearly was derailed by her father's unfortunate death.
Making that finding is probably simply an academic exercise. At the current time and since 1 January 2018, the plaintiff's probable gross weekly earnings with the Richmond Valley Council, working in water operations, are $818 per week. The net amount is $714 per week. The question might arise, what would the plaintiff have done had she not completed her traineeship? The answer to that is probably that she would have obtained unskilled work on the open labour market in the local community. The problem with that can be seen in statistics. It is hard to envisage any job remunerating a worker at less than $20 an hour, if the worker be an adult. $20 per hour for a standard 38 hours per week is $760 per week gross, which amounts to $670 per week net.
What is the local labour market? One does not need to be a local to know that. The Northern Rivers of New South Wales are a favoured destination for tourists and holidaymakers. The area is replete with hotels, motels, resorts, serviced apartments, cabins in caravan parks and other holiday lettings. All such premises require cleaning. Cleaning is also available in office blocks in both the public sector and the private sector here in Lismore and is a requirement in many places for areas such as those occupied by the local council, libraries, baby health centres, hospitals, schools and shopping malls. There are shopping malls here in Lismore and at Ballina and on the Tweed Coast. Shopping malls require constant cleaning. If they are not constantly cleaned, they increase the workload of the Court’s civil jurisdiction. Cleaning is the sort of unskilled work that this lady might perform.
Equally, because of the attractions of the Northern Rivers, there are many places where alcohol is served, such as hotels and clubs and bars and they require bar attendants to serve liquor. Witness, for example, the job of Ms Davis prior to the unfortunate motor vehicle accident. She was working at the Rod and Reel Hotel as a bar attendant in Woodburn. Not only are there places offering alcoholic refreshment but there are also many places such as clubs, restaurants and other outlets serving food and such outlets require waitresses and, for example, kitchen hands. The plaintiff is a well presented young lady and she could easily obtain a job working with the public; that is, being a waitress or bar attendant. The area is also replete with shops catering for local residents as well as tourists and holidaymakers and the plaintiff could obtain work in the retail industry.
Having recourse to the Furzer Crestani tables, I can ascertain that the latest statistics establish that the average weekly earnings of adult females in New South Wales is $1,502 per week gross, which amounts to $1,145 per week net. The same tables tell me that the average weekly earnings of adult females in retail trade throughout Australia are $1,157.20 which give a net earnings of $997 per week. The tables also show that the average weekly earnings for adult females in accommodation and food services are $1,108.20 per week gross or $885 per week net.
The average weekly earnings the plaintiff might earn with the local council are well below those sums. Therefore, I have no hesitation in accepting that what is shown by MFI 6, the calculation of the plaintiff's probable weekly earnings but for injury if she obtained the job which she was seeking with the Richmond Valley Council as calculated by junior Counsel.
There are two short issues which I should deal with before turning to the assessment of the plaintiff's damages. The first is the question of transportation or driving. Prior to her father's death, the plaintiff had made no attempt to learn to drive. She has made no attempt to learn to drive since. As I have already stated, she was only 17 at the time of her father's death. She is fearful that she herself may cause an accident like the one caused by Ms Rhonda Davis that took her father's life. She is also afraid for her own safety when travelling in a car but travel she must on certain occasions. Her travelling is provided for her by her de facto partner, Sam. The plaintiff has not sought to learn to drive because of the effects of her untreated psychiatric problems resulting from her father's death. I believe that with successful treatment and obtaining work skills, the plaintiff will eventually learn to drive and be able to drive herself around. However, she has not been able to do so up till now because of the effects on her psyche of her father's death.
The other issue debated was the concept of being "stoned". The plaintiff's ingestion of cannabis has been, at times, substantial. Yesterday when I went through the medical histories I sought to show that it has abated somewhat since the birth of her first child and has certainly abated when she was breastfeeding her daughter and she is now breastfeeding her son. However, she did admit under questioning by Mr Williams SC that she was "stoned all day". To me, the concept of being "stoned" would indicate that the plaintiff was not living in the real world; that she is living in some trance like state; that she was acting in zombie fashion. However, that is clearly not what she meant. She meant that she had her psyche affected by cannabis ingestion to ease her psychic pain and only by smoking cannabis was she able, at times, to relieve herself of that psychic pain.
The plaintiff did, for six months, use prescribed medication and she found that that improved her condition. However, she stopped the prescribed medication when she fell pregnant with her first child or it may have been when she started to breastfeed that child. I asked her a question as to whether she has asked a medical practitioner whether taking prescribed medication for a psychiatric condition has been ruled out by a medical practitioner and she told me that she had not made that inquiry. However, she has had the inconsistency drawn to her attention of taking cannabis at times but refusing to take prescribed medication. I am confident that with treatment she will give up her addiction to cannabis and be assisted in that regard by taking prescribed medication to relieve her psychic pain. I would not assign to the plaintiff the significance which the defendant sought to assign to the plaintiff by her admission of being constantly "stoned". The word can be used in a number of different ways.

Calculation of damages

I turn now to the heads of damage. To make the job of those taking this judgment easier, the calculations have been reduced in a tabular form by me in handwriting and a copy of this handwritten table will be given to those taking the judgment to make it easier for them both and also will make it easier for me to correct the judgment when it comes to me from the Court Reporting Branch in case I make any error in reciting what I have written.
The first head of damages is damages for non-economic loss. Because of the certification made by Dr Scurrah, the plaintiff is entitled to such damages. The current statutory maximum is $565,000. That is merely a cap. The quantum of damages for pain and suffering and loss of enjoyment of life is governed by the common law, subject to that cap. That cap does not require the finding of a most extreme case, nor do other awards of damages have to be proportionate to a most extreme case. At the commencement of the hearing, counsel for the plaintiff handed to me a schedule of damages which is MFI 2. Mr Turnbull SC made it clear that the schedule was prepared by his learned junior. The claim is for noneconomic loss of $250,000. Mr Turnbull made it clear to me that he thought that that was an underestimate of what the plaintiff was entitled to and he exhorted me to award more. Senior counsel for the defendant, Mr Williams, did not provide me either with his own estimate or a range but left it to the court's experience and discretion.
The important thing to note is that the plaintiff is currently 24 years old. Her life expectancy, according to the tables that are now used following the principle accepted in Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15, indicate that her life expectancy, if her health be otherwise good, is a further 62.25 years. That is an extremely long time into the future. The plaintiff may not live that long but, clearly, she can expect to continue to suffer the effects of ongoing PTSD some 50 years into the future. After all, there are ladies living in the Eastern Suburbs of Sydney who, as children, survived the Nazi Holocaust in Europe and migrated to this country but still have the psychic scars of PTSD affecting their lives. PTSD can be a very pervasive and long lasting problem causing ongoing and persistent symptoms. Doing the best I can, I believe that the appropriate sum to award the plaintiff for pain and suffering and loss of amenity of life to be $240,000.
The past out of pocket expenses are agreed to amount to $1,000. From the scurrying at the Bar table, I believe it unlikely that anyone had any real idea of what there actually were and thus the agreement reached between the parties. Those costs would include the general practitioner visits after the motor vehicle accident to which I referred yesterday, the one attendance upon the psychologist, Mr Tony Dover, and the prescribed medication which she took for some six months. Clearly, the plaintiff is entitled to that agreed sum.
Future out of pocket expenses were calculated by junior Counsel for the plaintiff to be $56,836. I accept that the plaintiff needs treatment of her post traumatic stress disorder, depressive disorder with anxiety and her panic disorder with agoraphobia. Dr Rikard-Bell estimates that that cost will be $11,100. In addition, according to Dr Teoh, the plaintiff needs separate treatment for her cannabis addiction. The average of the sessions which he recommends are at least $300 per session. I would allow weekly sessions for six months and then fortnightly sessions for six months; that is, a total of 39 attendances upon the addiction specialist and the total cost of that is $11,700. In addition, the plaintiff is entitled to some visits to a general practitioner to coordinate her treatment and rehabilitation and to make sure that there is no interference in it by her general health, in particular, by her chest condition. I would allow four visits per annum to a general practitioner for six years. It has been submitted by the plaintiff that the appropriate amount for each such consultation is $85 and I accept that. That amounts to $2,040. The plaintiff also requires prescribed medication. According to MFI 2, the cost of prescribed medication for two years is $1,000, so prescribed medication for six years is $3,000. The total of those sums is $27,840. However, I would also allow a modest buffer. The buffer sought in MFI 2 is $20,000. I intend to allow a buffer of $7,160, such that the total allowance for future out of pocket expenses is $35,000.
Past economic loss has been calculated in accordance with MFI 6. The total amount to date is $194,352. I allow that sum. The loss of past superannuation is 11% of that sum. That sum rounded is $21,379. Future economic loss for six years, the term I announced yesterday, at $714 per week, applying the six year multiplier, is $193,780. However, as I pointed out yesterday, one sixth of that must be deducted to account for the pregnancies which the plaintiff planned to have in the future but which actually have occurred in the past. That reduces that amount to $161,483. In addition, the plaintiff sought a buffer of $100,000. Once upon a time, buffers of this nature were described as cushions. However, the cushions became so large that I described them as lounge suites. I am prepared, in this case, to allow a buffer of $80,000, such that the amount I allow for future economic loss is $241,483. Future loss of superannuation is 14% of that sum. That amounts to $33,808.
The remaining heads of damage concern domestic assistance. Exhibit VD 4 was a letter sent by the plaintiff's solicitors providing particulars to the defendant's solicitors. The letter bears dated 3 July 2008. I refered to that in one of my earlier rulings. That states that care was provided to the plaintiff by her de facto husband, Sam Burnie, and by her grandmother, Dianne Lowe, when they were living with her in Glen Innes. Subsequently, care has been provided by Mr Burnie solely. That the plaintiff has required domestic assistance on a gratuitous basis is conceded by the defendant. Dr Rikard-Bell said this:

"I believe the Post Traumatic Stress Disorder has been significant. From the date of the motor vehicle accident to present, I believe she most likely has required some domestic assistance to help her cope with her needs and duties. I believe that five hours per week domestic assistance is reasonable. She would require assistance caring for herself and organising herself and being able to focus on the needs of the children."

However, the quantum of the domestic assistance is in dispute.

I have a bare ipse dixit from Rikard-Bell. There are, in evidence, reports from Ms Jacqueline Henry, a consultant occupational therapist. The reports are dated 7 February 2020 and 15 April 2020. Table 2.3.1 provides Ms Henry's assessment of the gratuitous support provided to Ms Connors from the time of her father's motor vehicle accident until the current time. The table should really commence from the date of the plaintiff's father's death on 25 September 2013 but nothing turns on that. That provides a total estimate of 12 hours support per week. Ms Henry allowed two hours per week for sweeping, mopping, vacuuming and similar household cleaning. She also allowed two hours per week for shopping. It is clear that the shopping is actually done by Sam. From their current residence at Woodburn, he drives 40 minutes to Lismore and 40 minutes to return from Lismore as well as doing the weekly shopping. He decides what grocery items and food and the like are needed and purchases them. Only on some occasions is he accompanied by the plaintiff. The two hours claimed is quite reasonable.
Ms Henry allowed half an hour a week for the assistance given by Mr Burnie to the plaintiff with laundry. When Mr Burnie is working, Ms Connors does the majority of the laundry and Ms Henry estimated that that only meant that occasionally Mr Burnie would gather soiled items, load and unload the washing machine and hang out the washing and bring it in after it dried. A half hour per week is reasonable.
She also accepted that there was a need for seven hours per week meal preparation. The plaintiff is a very fussy eater. Yesterday, when reciting the medical evidence, I pointed out her low iron levels and a tendency to eat only vegetarian food. She does not like cooking and she told me so. I pointed out to her that many of us do not like cooking but must do it and she maintained that she does not like doing it but that is clearly mandated by her disturbed psychiatric state. However, to allow one hour per week for Sam to prepare and serve and clean up after the main meal of the day and to provide other food preparation and service is, in my view, a modest claim and I allow it.
The plaintiff herself claimed four hours per week for driving made by Sam. Ms Henry did not allow anything for it. However, Mr Turnbull SC urged me to allow something for it but I, again, rely on what Ms Henry said in her report. In it she said this:

"When the couple were living in town, she was able to walk to the necessary places and had sometimes taken the bus. By moving to a rural area without access to public transport, she became entirely dependent on Mr Burnie's assistance with transportation."

This move to a rural area was the move to Marom Creek, which creek is actually the border between the Lismore City Council and the Ballina Council local government areas. Marom Creek is near Wollongbar. Mr Burnie told me that when Eyla was attending day care in Wollongbar it took him about ten minutes to drive her to preschool. One of the medical practitioners does not have Wollongbar as the site of the child care centre but said it was at Walgett. Walgett is eight hours drive from Lismore and the doctor probably did not have much local knowledge.

Ms Henry also allowed a half hour per week for "administration", 30 minutes per day managing general household bills and the like. She thought the reasonable amount to allow was half an hour per week. I also accept that to be reasonable. Traditionally, in the Australian family, the lady of the house looks after the bills and the bank books and administers the household. The plaintiff cannot do that in her current state and Sam must do that in addition to doing work when he is working. He has been working in the past on the Pacific Highway in the reconstruction of it between Woolgoolga and Ballina. However, he took time away from work to care for his wife and Eyla when Eyla was born until she was weaned and he is off work again caring for his wife and their two children and his wife's mother and his wife's half-sister at the current time. However, it is likely that he will return to work once Xenith is weaned. The total of those amounts is 12 hours per week.
In addition, Ms Henry allowed a further 4.12 hours for gratuitous child care support but that was not pressed by the plaintiff because the law makes it clear that only if children were born prior to the motor vehicle accident can such amounts be claimed and they cannot be claimed when the children are born after the motor vehicle accident. I am, therefore, prepared to allow 12 hours domestic assistance per week for the 335 weeks since the motor vehicle accident. Counsel has averaged out the amount to be $30 per hour. $30 per hour for 335 weeks is the sum of $120,600.
There is also a claim for future domestic assistance. I accept that such should be provided for the next six years. 12 hours per week at $33 per hour applying the six year multiplier ends up with a lump sum of $107,474. In addition, the plaintiff claims a buffer of $40,000. On this occasion, I would allow a further buffer for other assistance beyond the six year period of $30,000. The total I would allow for future domestic assistance is, accordingly, $137,474 rather than the $178,858 claimed in MFI 2.
One will note that I have not discounted amounts awarded for the future, that is for future economic loss, for future out of pocket expenses and for future domestic assistance, by the traditional 15% to account for the vicissitudes of life. As I have pointed out, I have only allowed for sums for six years into the future. The plaintiff is now 24. When these payments stop, she will be 30 years old. As I said, her life expectancy is at least 50 years into the future. The idea that the plaintiff might be struck down by the proverbial bus or succumb to some terminal illness within the period between her 24th and her 30th years, is so remote that I decline to apply the traditional discount for the vicissitudes of life.
The total of the sums I have announced is $1,025,096. A third of that sum is $341,357. The result is that the damages to be awarded to the plaintiff are $683,739. I have inquired of counsel for the plaintiff taking this judgment and the solicitor for the defendant taking this judgment whether any further reasons for judgment are required, I am told that none is so required. For those reasons, I give verdict and judgment for the plaintiff against the defendant for $683,739.
I order the defendant to pay the plaintiff's costs.
I certify for counsel to take the judgment over the last two days.

**********

Amendments

12 August 2020 - [95] Change "Fuger" to "Furzer"

Decision last updated: 12 August 2020

Medium Neutral Citation:	Connors v Nominal Defendant (No 4) [2020] NSWDC 438
Hearing dates:	4 June 2020, 9-12 June 2020, 15-16 June 2020.
Date of orders:	16 June 2020
Decision date:	16 June 2020
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the plaintiff against the defendant for $683,739
Catchwords:	TORTS - Action for damages for MENTAL HARM (nervous shock). P’s father killed in a one vehicle motor accident. Registration and insurance of vehicle had expired. Liability admitted subject to a defence of contributory negligence on the part of the deceased. Driver had admitted drinking alcohol and ingesting illegal drugs before the accident. Driver pleaded guilty to an offence of dangerous driving causing death as a result of her ingestion of illegal drugs. Admission of driver does not bind P. D failed to prove that there was present in the driver’s blood or breath any alcohol or illicit drugs and, if it had, did not call any expert evidence to prove the effect on the driver’s ability to drive. Driver had been without sleep for 32 hours and during that whole time was active either working or dancing at a “bush doof” party. Driver fell asleep at wheel of the car which left the carriageway and collided with a power pole, leading to death of P’s father. Deceased was aware of the time spent by driver without sleep. Driver asked deceased twice to stay awake to keep her awake. Finding of on-third contributory negligence.
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
Cases Cited:	Clyde v State of NSW (TAFE Commission) [1995] NSWCC 38; (1995) 12 NSWCCR 541 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 Zlojutro v GIO (NSW), Court of Appeal, 40569/89, 11 August 1995
Texts Cited:	Matt 26, 41; Mark 14, 38, King James Version.
Category:	Principal judgment
Parties:	Summer Rain Connors – Plaintiff Nominal Defendant - Defendant
Representation:	Counsel: J. Turnbull SC & J. de Greenlaw - Plaintiff M. Williams SC – Defendant Solicitors: S. Adams (Adams & Co Lawyers) – Plaintiff L. Patrick (Vardanega Roberts) – Defendant
File Number(s):	2018/00159755
Publication restriction:	Nil.