Harraca v Quaife

[2025] VCC 1623

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-22-05214

SHERIF HARRACA	Plaintiff
v
MATTHEW QUAIFE	Defendant

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JUDGE:	Clayton
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27 August 2025, 22, 23, 24, 25, 29, 30 September 2025, 3, 6, 7, 9, 24 October 2025
DATE OF JUDGMENT:	14 November 2025
CASE MAY BE CITED AS:	Harraca v Quaife
MEDIUM NEUTRAL CITATION:	[2025] VCC 1623

REASONS FOR JUDGMENT
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Subject:Negligence

Catchwords:              Negligence - Motor vehicle accident – self-represented plaintiff – duty of care – consumption of methylamphetamine by defendant driver – whether plaintiff knew of consumption – whether plaintiff knew of risk associated with consumption – volenti non fit injuria – expert evidence

Cases Cited:Biggs v O’Connor [2021] VSC 826

Roggenkamp v Bennett (1950) 80 CLR 292

Judgment:                  The plaintiff’s claim is dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the Defendant	Mr P Jens with Ms A Wood	Solicitor to the Transport Accident Commission

HER HONOUR:

1Sherif Harraca was a passenger in a car driven by Matthew Quaife on 14 November 2018.  Mr Quaife drove into a tree and Mr Harraca suffered very severe injuries as a result of the collision.

2Mr Harraca says Mr Quaife was negligent in that he drove in an unsafe manner and failed to take reasonable care for Mr Harraca’s safety.

3Mr Quaife says he was adversely affected by the consumption of methylamphetamine to such an extent that he was incapable of exercising proper control over the motor vehicle at the time of the collision.  He says Mr Harraca knew that he was affected by methylamphetamine and voluntarily accepted the risk that driving with Mr Quaife could cause injury, loss and damage.  Mr Quaife says, in those circumstances, he owed Mr Harraca no duty of care. 

4Mr Quaife says that, if Mr Harraca did not voluntarily accept the risk of injury, then Mr Harraca contributed to his own injuries because of his own negligence in failing to take any precautions for his own safety, putting himself in a position of danger, failing to heed signs that Mr Quaife was intoxicated and getting into the vehicle with Mr Quaife when he knew, or ought to have known, that Mr Quaife was incapable of driving safely due to his consumption of methylamphetamine.

5There is no dispute that Mr Harraca was very badly injured in the car accident.

The issues

6The issues in dispute are:

(a)   Whether Mr Harraca and Mr Quaife consumed methylamphetamine on the day of the accident;

(b)   If so, whether Mr Harraca had actual knowledge that Mr Quaife had consumed methylamphetamine on the day of the accident;

(c)   If so, whether Mr Harraca was aware that consumption of methylamphetamine would impact Mr Quaife’s capacity to safely drive a car;

(d)   If so, whether Mr Harraca voluntarily accepted the risk of injury by getting into the car with Mr Quaife on the night of the accident; and

(e)   If Mr Harraca did not voluntarily assume the risk of injury, whether he contributed to his own injuries by his own negligence?

Mr Harraca’s background

7Mr Harraca was born in 1968.  He went to school until year 12 and completed a Certificate of Accounting at TAFE.  He transferred to Monash University in Frankston and obtained a Bachelor's degree in Business.  He started a Master's degree and finished six of eight subjects, but did not complete his Master's degree because he became too busy with his businesses.

8He worked as a tax accountant for H & R Block and then went into business as a partner in a car repair business, S&M Prestige Body Works.  He said he ran the finance side of the business and his partner did the quoting and the hands-on work of car repair.  He had 17 employees.  He opened a subsidiary car hire business which he also managed.

9He then sold those businesses and went into conveyancing.  He ran his conveyancing business for about eight years.  He obtained his finance broker’s licence, which he said went “hand in hand” with conveyancing, and for a number of years he ran both a conveyancing and finance broking business.[1] 

[1] Transcript (“T”) 42

10He “wanted out”[2] of the conveyancing and finance broking business.  He went into property management.  He described property as his “labour of love”.[3] He explained that he would purchase properties as investments, rent them out and renovate them for sale.  Two of his properties were rented out as rooming houses.   Other properties consisted of single houses or a group of units.  From time to time he would sell a property for profit.  He undertook the maintenance and repair of the properties, and did a substantial portion of the renovations on some properties.  In the period shortly before the accident, he owned about 18 properties.[4]

[2] T 41 Line (“L”) 24

[3] T 42 L 4

[4] T 85 L 18-19

11Mr Quaife moved into one of Mr Harraca’s properties, at 44 White Street, in April 2017.   About six months after moving in, Mr Quaife started helping Mr Harraca with maintenance, repairs and renovation on the properties.  In return for his work, Mr Harraca would, from time to time, buy Mr Quaife meals, give him small amounts of money, and buy him things he needed, such as tools and work clothing. 

The events leading to the accident

12Both Mr Harraca and Mr Quaife gave evidence that:

(a)   Mr Quaife and Mr Harraca were friends prior to the accident.  On many occasions Mr Quaife would drive Mr Harraca in Mr Harraca’s car.

(b)   From time to time, Mr Harraca provided methylamphetamine to Mr Quaife.  From time to time they consumed methylamphetamine together.  In general, Mr Harraca preferred to snort the drug and Mr Quaife preferred to inject the drug.

(c)   On the day of the accident, Mr Quaife and Mr Harraca were working on Mr Harraca’s unit in Whatley Street, which they were renovating in preparation for sale. The renovation was almost complete. Mr Harraca said the renovation on that property was nearly complete and they were  “fine tuning” it to finish it off.[5]  He said the work he was doing was “mainly cleaning up” because the renovation was 90% finished. 

(d)   After work on the day of the accident, they returned to White Street.  Mr Harraca went to his unit at 42 White Street and Mr Quaife to his room at 44 White Street.

[5] T 54

13Mr Harraca and Mr Quaife otherwise gave different accounts of the day of the accident.

14Jessica Grindrod, who lived in one of the units at 42 White Street, and who knows both Mr Harraca and Mr Quaife, also gave evidence at the hearing.

Mr Harraca’s account

15Mr Harraca said that on the morning of 14 November 2018, he and Mr Quaife got to Whatley Street at about 9:00am.  Mr Quaife drove them there in Mr Harraca’s ute .[6]  They were the only people working at Whatley Street that day. 

[6] T 53-54

16He said Mr Quaife had lunch with his mother between about 12:00pm and 2:00pm.  This was the first time Mr Harraca had met Mr Quaife’s mother.

17When Mr Quaife came back from lunch, they started to pack up their tools and “take it easy”.  Mr Harraca said he was tired because he “didn’t have anything”, meaning he had no methylamphetamine.[7]  He said he would usually self-medicate with methylamphetamine when he became tired.   He said on that day he did not have any methylamphetamine available and neither did Mr Quaife.  Mr Harraca said he did not see Mr Quaife take any methylamphetamine that day.

[7] T 54 L 22

18He said he had had a late night the night before, on 13 November 2018, but he could not recall whether Mr Quaife was with him that night.

19He had also had a late night on 12 November 2018, as he had worked late at Whatley Street to try to finish the renovation.

20He and Mr Quaife left work at about 5:00pm and got back to White Street by about 5:30pm. 

21Mr Harraca said he went to his property at 42 White Street and Mr Quaife went to his room at 44 White Street.  After getting home he jumped into a hot bath with bath salts to relax.  He read a book by Jeffrey Archer and put the TV on, though he was not really watching it.  He said he was “on and off napping”  on the couch.[8]

[8] T 58

22Mr Harraca said that, at about 10:00pm, Mr Quaife knocked on his door and said he was hungry and wanted to get a meat-lovers pizza “with pineapple”.  Mr Harraca said he remembered the time because he looked at the clock.  He said he was in his “pjs”, though he later said he might have been wearing soft tracksuit-type pants, similar to pyjamas.[9]

[9] T 370

23Mr Harraca said he did not want to go out because he was very tired, and was not feeling hungry, but when Mr Quaife mentioned pizza he decided he would go.  However, because he was so tired he told Mr Quaife he could not drive and that Mr Quaife would have to drive.  He had in mind that they would go to a pizza shop in Patterson Lakes and that, “at the same time we were going past – we thought we’d go past …the job site and just, you know – randomly check on it”.[10]

[10] T 60

24Later, in cross-examination, Mr Harraca said that he might have told Mr Quaife that they would check on Whatley Street because a door had been left outside and they were going to put it away.  On further questioning he remembered that, prior to going out, he had received a text message at about 9:00pm from his friend, Marco, who is an electrician.  Mr Harraca said Marco had gone past the unit at Whatley Street and texted Mr Harraca to say “you’ve left some tools out”.[11]  Mr Harraca said when Mr Quaife knocked at his door at about 10:00pm, to suggest getting something to eat, Mr Harraca discussed with him maybe driving past Whatley Street afterwards.  On further questioning, Mr Harraca said Marco had sent him a text and a photograph of a door and possibly some tools that needed to be put away.  Mr Harraca said it would be better if the tools were put away but it was not imperative, as the Whatley Street unit was at the back of the property and could not be seen from the street.

[11] T 385 L 7-9

25Mr Harraca said he checked whether Mr Quaife was alright to drive, as it was his habit to always ask, when anyone drove his car, “Are you right to drive?”.[12]  He said he also made sure that anyone driving his car looked like they were capable of driving.  He said he can usually tell if someone is on drugs, drunk or otherwise intoxicated.  He said Mr Quaife was not a drinker and that, though he knew he was on some prescription medication, he did not show any sign of being drug-affected.

[12] T 60 L 18-20

26Mr Harraca could not recall the exact sequence of events but recalled that, with Mr Quaife driving, they turned into Boundary Road and then went down Governors Road.  He was falling asleep and wanted to have a “power nap”.[13]  He said when he had a power nap it would usually be for about five or ten minutes.  He expected the drive to the Patterson Lakes Dominos Pizza to take about ten or fifteen minutes.  He said they stopped at the traffic lights opposite a petrol station and he told Mr Quaife he was going to have a nap. 

[13] T 61 L 28-29

27Mr Harraca said Mr Quaife “looked fine.  Just – there’s nowhere along the way when he was driving that he was driving reckless or, you know, danger[ously].  There was no danger…..there was no indication of- that he wasn’t safe – it wasn’t safe for him to drive.  I would have pulled him over”.[14]

[14] T 63 L 4-7

28He said he closed his eyes and the next thing he recalled was that he woke up just before the accident.  He believed he went down a ditch or an embankment, but later found out there was no ditch and that they had hit a tree in the median strip of Frankston Freeway.  He thinks he heard Mr Quaife saying “I’m sorry Sherif, I’m sorry Sherif” and he “must have woken up”.[15]  He said he was screaming and in pain and his foot was stuck in the engine.  He remembers hearing someone say “he’s alive”, lights flashing and being told that he was stuck, that they would have to cut the door open and that he was going to be given ketamine so he would not feel pain.  He remembered being asked what his wife’s phone number was, and he gave her number.  He said this happened at about 12:45am on 15 November 2018 and that the accident had happened at about 10:30pm on 14 November 2018.

[15] T 64 L 12-14

29He did not know why there was a gap between the time of the accident and the time his wife was called.  He said he may have been sedated.  He did not recall being transported to hospital.  He was unsure whether he remembered getting to the hospital and going to theatre, or whether this was just something he was told about later.

30I find that much of Mr Harraca’s evidence was not reliable.  This was, in part, because of the passage of time and the difficulty he had recalling events.  On crucial matters, such as the consumption of methylamphetamine and the timing of events on the day of the accident, I cannot accept his evidence.  It did not accord with the objective evidence available, which I will deal with below. 

31There is no doubt that Mr Harraca sustained very serious injuries in the accident and that he faces very substantial financial difficulties.  There was no doubt that, throughout the trial, Mr Harraca experienced great stress and anxiety and this impacted his ability to give evidence.  He may have convinced himself of the version of events he presented to the Court, or may have misremembered what transpired the day of the accident.  He also may have given an implausible account of events to bolster his case.

32Regardless, his evidence in relation to the circumstances around the accident, his consumption of methylamphetamine in the lead up to the accident, and his knowledge of Mr Quaife’s consumption of methylamphetamine, cannot be correct.

Mr Quaife’s account

33Mr Quaife said on the morning of 14 November 2018 he and Mr Harraca got to Whatley Street somewhere between mid-morning and lunchtime.   He agreed that he drove to Whatley Street.

34Mr Quaife said he would “always” use methylamphetamine when working with Mr Harraca, and that he would “always just get a bit of stuff off Sherif” and “that would just get us – get us going like”.[16] 

[16] T 896

35On the day of the accident he said he definitely had methylamphetamine “a couple of times” with Mr Harraca between arriving at Whatley Street and returning to White Street.  He said they would have a break, Sherif would “do his thing and he’d just give me some and I’d just go and I’d do – do it my way”.[17]

[17] T 898 L 23

36He said he did not see his mother for lunch that day.  His mother had been overseas on a cruise and had only just returned a day or two prior.  He had not seen her for a while.  He said he did not generally have lunch with his mother, but she would take him to appointments.  He said there was a day at Whatley Street when he did have lunch with his mother, but it was not the day of the accident because he had not seen her after her return from overseas.[18]

[18] T 933

37He said it was “standard” to have a little bit of methylamphetamine after finishing work for the day, before packing up the worksite.[19]  He said on the day of the accident, they packed up the work site quite late.  He did not know the time but said itt was completely dark outside.  They went to the Shell service station on the corner of Governor Road and Springvale Road.  He said this service station was on the way back to White Street, but required them to cross to the opposite side of the road.

[19] T 897

38He did not believe that they bought any petrol at the service station but they stopped there for Mr Harraca to buy methylamphetamine.  He said he saw Mr Harraca go to a car but did not watch what happened.  He remained in the driver’s seat of Mr Harraca’s ute.  Mr Harraca told Mr Quaife that he had got some methylamphetamine and they then returned to White Street.

39He said they pulled up in front of the “office” at 42 White Street, which I understand is the unit Mr Harraca used as his office, and also where he slept several times a week.  They went together into the unit at 42 White Street and had a little bit of methylamphetamine in the kitchen.  Mr Harraca gave Mr Quaife some methylamphetamine to take home with him in a Ziploc bag.

40Mr Quaife said he lived with three small dogs. When he got back to his room, his dogs “were carrying on like crazy because, like, I’d been – well I’d been gone for most of the day”.[20]

[20] T 904

41He said usually he would get the dogs settled down and then get their dinner.  On this day, he did not get that far because shortly after he got home Mr Harraca phoned him to say they needed to go back to Whatley Street.  Mr Harraca told Mr Quaife a friend had sent him a photo showing they had left all the power tools sitting out on the front doorstep of the Whatley Street unit.

42Mr Quaife said he did not want to go out, but Mr Harraca said he had to go with him.  Mr Quaife thought this was about 10:00pm “at a guess” but he could not be sure.  He thought it was “pretty late”.  He estimated that Mr Harraca called him perhaps half an hour after getting back to White Street.  Mr Quaife said he locked his room up and went back to 42 White Street to meet Mr Harraca at the car.

43He did not recall seeing anyone else as he went to Mr Harraca’s car.  Specifically, he did not recall seeing Ms Grindrod and did not recall her speaking to Mr Harraca or to him. 

44They set off for Whatley Street. Mr Quaife was driving and Mr Harraca was the passenger.  They pulled up at the set of lights near the Shell service station, and Mr Harraca said he was going to have a catnap.  Mr Quaife remembered the arrow on the traffic light was red, it turned green and he took off, turning onto Springvale Road from Governor Road toward Frankston Freeway.  The next thing he recalled was that he had ploughed into a tree in the median strip on Springvale Road.  He said the headlights of the ute were “looking at each other”.[21]

[21] T 909

45He said he tried to get out of the car but was unable to stand.  He realised this was because his left foot was very severely damaged and his bone was exposed.  He said he thought he had retained consciousness throughout.  He did not think he had called emergency services.  He said he used Mr Harraca’s phone to call his mother and Ms Grindrod.   He was not sure why he had called Ms Grindrod, except that she was the person at White Street who “gets things happening” and was “just the first person I thought to call there”.[22]

[22] T 914 L 18-22

46He was not sure why he had used Mr Harraca’s phone and not his own phone, but thought that possibly he could not find his own phone.  He was not sure what time the accident occurred, but said it happened not long after they left White Street.  He said he guessed it was around “10, 10-ish, maybe a bit later”.[23]

[23] T 920 L 17

47He said that the first responders arrived at some point after the accident.  He could not remember when, but he did not recall there being any significant delay between the accident and their arrival.  As far as he was aware, he remained conscious throughout.  He thought the fire service arrived first and he was given a “green whistle” to help with pain.  He was then taken to hospital by ambulance.

48Mr Harraca submitted that Mr Quaife’s account of events has been inconsistent, self-serving and unreliable.   

49In his answers to interrogatories, Mr Quaife had said that “to the best of his recollection, something ran across the roadway, causing me to swerve.  I believe it was an animal but I cannot be sure what kind of animal”.[24]   Mr  Harraca asked whether he had said that a rabbit had run in front of him.  Mr Quaife said “Maybe. I don’t know. Did I say that? Maybe I thought that.  I don’t know.  I don’t – I actually honestly can’t tell you.  I – I just -I don’t remember what happened when I turned that corner”.[25]   Mr Quaife did not deny having previously said a rabbit had run across the road. I formed the impression that he did not have any actual recollection of how the accident occurred. 

[24] T 1062 L 17

[25] T 961 L 10-13

50Mr Harraca asked him whether he had told someone called Daniel “about your methylamphetamine intake”.  Mr Quaife replied “Of course he knows we take methylamphetamine.  He’d been there when we’ve taken it together”.[26]   There was no further evidence about or from Daniel, nor was there any evidence of a prior inconsistent statement by Mr Quaife about his methylamphetamine consumption.

[26]        T 1051

51Mr Harraca put to Mr Quaife that, during the period after the accident, when he and Mr Quaife lived together in Mr Harraca’s unit at White Street, “not once you had said to me that we took drugs together, or that – or what – and we pulled over and bought drugs.  No- no drugs were ever mentioned, that was never mentioned as I’m saying to you”. Mr Quaife’s response was “Cause you know exactly what we did.  You were there  We did it.  Why would I need to mention that to you?  Why would I need to mention something that we both know happened?”.[27]

[27] T 957 L 6-7

52I found this a plausible explanation for why Mr Quaife would not have discussed with Mr Harraca their consumption of methylamphetamine on the day of the accident.

53Counsel for Mr Quaife submitted that his evidence was authentic, consistent, and honest, that he had no motive to invent and did not attempt to argue his position.

54I generally accept Mr Quaife’s account of events.  He was incorrect in his estimate of the time of the accident.  He made it clear, however, that he could not remember and was just guessing.

55Otherwise his evidence was plausible and consistent with the objective evidence.  Importantly, he had no reason to lie.  There was no benefit to him in saying that he had used methylamphetamine a number of times on the day of the accident.  Nor do I accept that he had set out to ruin Mr Harraca’s case, as alleged by Ms Grindrod.[28]   In response to this allegation, he said he had never said he was going to try to ruin Mr Harraca’s case.  He said “I’ve said the TAC contacted me um and - and asked for a statement, in which I made – made a statement. Other than that, that’s all that’s  -I’ve – I’ve never once said anything about him and his case.  I don’t -  I haven’t spoken to him, so I don’t care about, you know – I’ve got – got nothing to do with me, what happens with him and – and his – his dealings with TAC”.[29]

[28] T 597 L 3-4

[29] T 1053 L 11-17

56He rejected the allegation put to him by Mr Harraca that the version of events he gave benefited him as a driver.   He said he was just telling the truth about what happened that night.[30] 

[30] T 1049 L 20

57Mr Quaife was not defensive or argumentative.  He made appropriate concessions and said when he could not remember something.  There was no evidence of any benefit to Mr Quaife as a driver or financially, from lying about the circumstances of the accident, nor could I fathom what any benefit would be.

58Although at some point Mr Harraca and Mr Quaife had a falling out and no longer remain friends, neither of them gave any evidence that this has generated animosity between them, such that Mr Quaife would deliberately lie, solely to destroy Mr Harraca’s claim.  This would require a level of vindictiveness of which there was no evidence.  Mr Harraca submitted, though he did not put to Mr Quaife, that Mr Quaife’s account was motivated by malice.  However, Mr Harraca gave no evidence that Mr Quaife was motivated by malice, nor any evidence of any conduct that could be said to amount to malice.

59Mr Harraca submitted that Mr Quaife was lying about their consumption of methylamphetamine, notwithstanding that Mr Quife’s evidence is consistent with the toxicology and expert evidence.  This is implausible.

60Mr Quaife had declined to cooperate with a Transport Accident Commission investigation into the accident.  It was only when he was served in this proceeding that he made a statement to the TAC. 

61It is one thing to refuse to cooperate; it is another thing to come along to Court and deliberately lie.  When faced with the prospect of going to Court, I am satisfied that Mr Quaife decided he would “just [tell] the truth of what happened on the night”.[31]  I am satisfied that, despite his initial refusal to assist the TAC in their investigation, he was a truthful witness with no motivation to lie.

[31] T 1049 L 21-22

62If, as alleged, he told Ms Grindrod that he was going to ruin Mr Harraca’s case, it is more likely that this was said because he was aware that his truthful evidence was likely to have a negative impact on Mr Harraca’s case, rather than that, motivated by malice, he was going to lie in order to ruin Mr Harraca’s case.

Ms Grindrod’s account

63Ms Grindrod said she met Mr Harraca in January 2016, when she became one of his tenants at 42 White Street.  She met Mr Quaife when he moved into 44 White Street in about April 2017.

64Ms Grindrod says at about 6:00pm on the night of 14 November 2018, she called Mr Quaife to ask whether he had seen Mr Harraca.  She said she had called Mr Harraca but he had not answered. She was trying to find Mr Harraca to see whether he had a trolley jack, as she needed to change two flat tyres on her car.[32]

[32] T 591-592

65She said when she called Mr Quaife he said he was at home, he was not with Mr Harraca and was not sure where Mr Harraca was.  She asked whether Mr Quaife knew if Mr Harraca had a trolley jack.  She said Mr Quaife asked her whether she had some methylamphetamine. She said Mr Quaife said that “they hadn’t had anything, that he was – like, in – in other words, he said that he was fucked because of working” and that he wanted to know whether she had a little bit to help him wake up.[33]   She said he was a little bit flat and seemed disappointed that she did not have any methylamphetamine.

[33] T 641 L 4-7

66She said that later that evening she saw Mr Harraca and Mr Quaife as they were walking towards Mr Harraca’s driveway.  She said she spoke to them just after 10:00pm.   She came up close to Mr Harraca to ask him whether he had a trolley jack she could use.  They had a brief exchange and then Mr Quaife and Mr Harraca drove away.

67She said about 15 minutes later she received a panicked phone call from Mr Quaife, who was distraught and largely incoherent.  She said this call was at about 10.00pm.  She told Mr Quaife she would come to the accident scene.

68When she got to the accident scene, the tow truck was beginning to remove the vehicle and she was told by police that the ambulance had recently departed.  She estimated that she got to the scene of the accident sometime around 12:00am.   She said it took her a long time to get to the accident because she did not drive and her car had two flat tyres.  She needed her then-partner, Tim, to drive her in his van.  When they got to the end of the driveway, there was an issue with the gearbox in the van and it took Tim a while to fix the problem so they could use the van.[34]

[34] T 690-691

69Although she said she was an “impartial” witness who remains on speaking terms with Mr Quaife, I formed the view that, in crucial aspects, her evidence was designed to assist Mr Harraca and was not reliable.  This was particularly in relation to the timing of the accident, which did not accord with the objective evidence, and her conversation with Mr Quaife where he allegedly asked her for methylamphetamine, which I do not accept occurred.  I deal with this more fully below.

Documentary evidence

70The Emergency Services Telecommunications Authority records, which record calls to triple zero, show a call was placed to triple zero by a member of the public at 12:36am.  The ESTA record notes that 2 persons were trapped in a vehicle.  The fire brigade was dispatched at 12:37am.  Police were dispatched at 12:38am.  Fire Services Victoria arrived at 12:44am.  An Emergency Response Team Unit arrived at 12:46am.  I take this to be the ambulance.  Police arrived at the scene at 12:47am.

71The ESTA record records that a patient was loaded for transfer by 12:58am.  I assume this was Mr Quaife, as Mr Harraca was trapped in the vehicle.  The ESTA record states that the second patient was loaded for transfer at 1:29am.  This presumably was Mr Harraca, as this accords with the evidence that he was trapped.[35]

[35] Courtbook (“CB”) 950-961

72This also accords with the Ambulance Victoria records for Mr Harraca which show observations at 12:48am and a vital signs survey commencing at 12:50am.  Ambulance Victoria records note extrication of Mr Harraca at 1:16am, and that he departed the scene at 1:40am and arrived at the Alfred Hospital at 2:07am.

73This also accords with the Victoria Police records which record a police unit was dispatched to the accident scene at 12:38am on 15 November 2018.[36]  The Victoria Police notes dated 15 November 2018 record the name and details of the person who placed the triple zero call and records the following:

“On Hutton Rd to turn south onto Springvale.  Waited for ute to go past.  Saw ute fishtailing then into trees.  Called 000 12.35 am”.[37]

[36] CB 916

[37] CB 933

When did the accident happen?

74Hutton Road becomes Governor Road after Springvale Road.  I understand from the police notes that the witness was travelling towards Mr Quaife and Mr Harraca at the time of the accident.

75Mr Harraca and Ms Grindrod both said that the accident had happened around 10.00 or 10:30pm.  This was based on their evidence about when Mr Harraca and Mr Quaife had left White Street.  Mr Quaife was unsure of the time but guessed it was around that time as well.

76That evidence cannot be correct.  There is no reason why the witness to the accident would have waited two hours to call emergency services.  On the balance of probabilities, it is far more likely that the accident happened at around 12:35am on 15 November 2018, as recorded in the ESTA records.

77As both Mr Quaife and Ms Grindrod say that Mr Quaife called Ms Grindrod in the immediate aftermath of the accident, it is more likely that this call occurred between 12:35am and 12:45am.  Ms Grindrod said the call ended because the emergency services had arrived.  The first service to arrive was the fire brigade at 12:44am.  This accords with Mr Quaife’s recollection that the fire brigade was the first on scene. The timing of the accident at about 12:35am and the timing of the arrival of the fire brigade at 12:44am also accords with Mr Quaife’s evidence that he was conscious and was not aware of any significant delay between the accident and the arrival of emergency services.

78It cannot be correct that Ms Grindrod attended the scene of the accident at about 12:30am if, as she says, the tow truck was just starting to collect the vehicle and she was told that the ambulance had recently departed with Mr Harraca.

79It is more likely that she attended at around 2:00am, as this is consistent with the timing of Mr Harraca’s extrication from the car, the dispatch of the ambulance and the tow-truck removing the vehicle.  It is also consistent with Ms Grindrod’s evidence that there was a significant gap between receiving the call from Mr Quaife and attending the accident scene.

80I am therefore satisfied, on the balance of probabilities, that Mr Quaife and Mr Harraca departed White Street at around 12:00 – 12:15am on 15 November 2018 and the accident occurred at around 12:35am on 15 November 2018.

Did Mr Harraca and Mr Quaife consume methylamphetamine on 14 November 2018?

81As set out above, Mr Harraca and Mr Quaife gave very different accounts of their consumption of methylamphetamine on 14 November 2018.

82Mr Harraca said that he had not consumed methylamphetamine at all on that day and that, to his knowledge, Mr Quaife had also not consumed methylamphetamine.  Implicit in his evidence was that, if Mr Quaife had in fact consumed methylamphetamine, Mr Harraca had not supplied it, nor had he witnessed it.  On Mr Harraca’s account there were two periods when they were not together: the two-hour lunch that he said Mr Quaife had with his mother, and between about 5:30pm when they returned to White Street and about 10:00pm when Mr Quaife knocked on his door saying he wanted to get a pizza.

83Blood samples were taken from Mr Harraca at 3:00am on 15 November 2018. The toxicology report showed a blood concentration of 0.77mg/L for methylamphetamine.  A blood sample was taken from Mr Quaife at 2:30am on 15 November 2018.  The toxicology report showed a blood concentration of 0.57 mg/L for methylamphetamine.

84Mr Harraca relied on two reports of Dr Michael Robertson, pharmacologist and forensic toxicologist, dated 1 September 2025 and 10 October 2025.[38]

[38] Supplementary Court Book (“SCB”) 63-79; Supplementary Report of Doctor Michael Robertson dated10 October 2025

85Mr Quaife relied on two reports of Professor Edward Ogden, an addiction medical specialist and forensic physician, dated 22 December 2023 and 16 September 2025.[39]  Both experts attended and gave evidence in Court.

[39] CB 349-361; SCB 80-88

86Both experts agreed that methylamphetamine has a half-life of between 6 and 15 hours.  This means that an individual takes between 6 and 15 hours to get rid of half of the methylamphetamine in the body.  The rate of excretion of methylamphetamine depends on the acidity of the urine, as well as an individual’s metabolism. 

87Professor Ogden took a middle figure, being a period of 10 hours, to calculate the likely level of methylamphetamine in the blood of Mr Harraca and Mr Quaife at the time of the accident.  Dr Robertson explained that, using a half-life range of approximately 6 to 15 hours, the blood concentration could indicate use from around 30 hours to 75 hours prior.[40]

[40] T 994

88Both agreed that the level of methylamphetamine at the time of sampling was extremely high in both Mr Harraca and Mr Quaife.

89If, as Mr Harraca said, he had consumed no methylamphetamine since the night of 13 November 2018, and assuming in his favour that he cleared the drug from his system slowly, so that the half-life of the drug was 15 hours rather than 6 hours, this would mean that, 15 hours earlier, at about midday on 14 November 2018, the level in his system would have been 1.54mg/L.  Fifteen hours earlier than that, at around 9:00pm on 13 November 2018, the level would have been 3.08mg/L.

90Dr Robertson said it was “implausible” that someone would have had 3.00mg/L of the drug in their system because “we know that people die” at lower concentrations.  He has never seen a blood sample of 2.00mg/L, let alone 3.00mg/L, except in post-mortem examinations where someone has died as a result of methylamphetamine use.[41]

[41] T 994-995

91Dr Robertson said that the drug detected in the blood might have been from a number of doses of methylamphetamine rather than a single dose.  He said given the readings for both Mr Harraca and Mr Quaife at 3:00am and 2:30am, it would be unlikely that methylamphetamine was not used in the 24 hours before the crash.  He agreed that, given the blood concentration levels, it was probable that methylamphetamine had been consumed sometime during the day on 14 November 2018.

92Professor Ogden assessed the likely range of methylamphetamine in Mr Harraca’s blood at the time of the accident, being around 12;30am.  He concluded it would have been approximately 0.96mg/L with a range of 0.9 to 1.1mg/L.  The likely range of methylamphetamine in Mr Quaife’s blood at the time of the accident was approximately 0.71mg/L, with a range of 0.67 to 0.8mg/L.  This was a very high level.

93Professor Ogden said if methylamphetamine had not been consumed by either Mr Harraca or Mr Quaife since 13 November 2018, then their consumption on 13 November 2018 would have had to be “astronomic”.[42]  He said he was not sure if it would be possible to have a level of methylamphetamine in the blood high enough to account for the readings at 3:00am and 2:30am on 15 November 2018, if no methylamphetamine had been consumed in the prior 24-hour period. He said whether the actual excretion rate was 6 hours or 15 hours, the level of methylamphetamine in the blood before the accident and at the time of the accident, for both Mr Harraca and Mr Quaife, was very high.  If the accident did occur at around 10:30pm, the level of methylamphetamine in the blood would have been higher than at around 12:30am.

[42] T 1032 L 29

94The more likely scenario was that both Mr Quaife and Mr Harraca consumed methylamphetamine on 14 November 2018.

95Both experts agreed that, although the excretion rate of methylamphetamine is unknown in an individual, neither had any concern about the reliability of the toxicology reports themselves.  The fact that the samples were not tested until some time after the accident did not invalidate the results.

96Mr Harraca submitted that the toxicology reports demonstrated only a “probable” level of methylamphetamine at the time the samples were taken.  I do not accept this submission.  My understanding of the expert evidence is that the level of methylamphetamine in the blood at the time the samples were taken reflects the level reported upon analysis.  However, the level of methylamphetamine in Mr Harraca’s or Mr Quaife’s blood at the time of the accident, or at any other time, is a “probable” level based on a range of potential levels which are dependent on the actual rate of excretion.  The level of methylamphetamine at any given time prior to the time the sample was taken cannot be assessed with pinpoint accuracy because it depends on the rate of excretion from the body, which in turn depends on individual metabolic factors.  The blood concentration level prior to the accident must have been higher than at the time the samples were taken, because the samples were taken between two and two and a half hours after the accident, with no methylamphetamine consumption in the interim.   A very high level when the toxicology samples were taken equates with an even higher level prior to the accident.  While the exact level is a “probable” figure, this does not detract from the fact that the experts agreed that, regardless of the excretion rate, the level of meth in the bloodstream of both Mr Harraca and Mr Quaife was very high prior to the accident and, on the balance of probabilities, meant that methylamphetamine had been consumed that day.

97Mr Harraca invited me to speculate that there may have been an error or mistake at the time the blood samples were taken.  As I explained to Mr Harraca, I can act only on the evidence.  There was no evidence whatsoever that there had been any error or mistake in the sampling or analysis of the blood specimens. 

98On the basis of the opinions of both experts and the toxicology reports, I am satisfied that it is overwhelmingly likely that both Mr Harraca and Mr Quaife had consumed methylamphetamine on 14 November 2018.

99This also accords with Mr Quaife’s evidence. 

Was Mr Harraca aware that Mr Quaife had consumed methylamphetamine?

100Even though I am satisfied that Mr Harraca had consumed methylamphetamine prior to the accident, this does not automatically mean he was aware that Mr Quaife had also consumed methylamphetamine.

101Mr Harraca said he took methylamphetamine for depression and to help him focus.  He said he was only using a small quantity, and that he would generally take “a point” after lunch and that would help him focus.  He said he took methylamphetamine “when he needed it”.  He said he took methylamphetamine “two days on and two days off” but never on a Sunday, which was the day he caught up with his family.  Associate Professor Doherty recorded that on 17 July 2023 that he used methylamphetamine 6 days a week.[43]  Mr Harraca said that was not correct.  He said sometimes he would use it 6 days a week but “very rarely”.[44]

[43] T 404

[44] T 410 L26

102As best he can recall, prior to 14 November 2018, the last time he had used methylamphetamine was on 13 November 2018. 

103Mr Harraca agreed that he gave methylamphetamine to Mr Quaife “sometimes”.[45]  He agreed that he also gave methylamphetamine to others, including Ms Grindrod. 

[45] T 221; T 228 L 27; T 331 L 12

104Mr Harraca said he did not use it the day of the accident.  He gave no explanation as to why he did not use it that day, other than that he did not have any methylamphetamine available.    He said sometimes he would not have it because “I didn’t want to have it, I’d take a break”.[46]  He said he had used it on the Monday prior to the accident, when he was working late and long hours to get Whatley Street finished.  To the best of his recollection he had also used methylamphetamine on the Tuesday before the accident.

[46] T 239 L 19

105He accepted that he was able to obtain methylamphetamine, and the fact that he supplied methylamphetamine to other people demonstrates that he had the means and access to obtain methylamphetamine.  He, unlike Mr Quaife, also had money available to purchase methylamphetamine.  I formed the view that Mr Harraca downplayed his use of methylamphetamine prior to the accident. He said he only used small amounts of methylamphetamine, about 2 or 3 “dots” a day.  He said a “dot” or “point” was 0.1g of methylamphetamine.

106Given the level of methylamphetamine in his bloodstream at the time of the accident, and even giving him the benefit of the slowest possible discharge rate of methylamphetamine from his body, being 15 hours, it is likely that his level of consumption of methylamphetamine was greater than he said, at least in the 24 to 48 hour period prior to the accident. 

107He said that though he was  along term user, the amount he used had not increased, and he used only very small amounts for “self-medication”.  This is not consistent with the history given to Associate Professor Doherty, nor with the toxicology results.  Given his toxicology results and the fact that, with that level of methylamphetamine in his blood stream he was able to fall asleep, I conclude that Mr Harraca’s consumption of methylamphetamine was likely higher than he said, and that he had developed a significant tolerance to its effects.

108Mr Quaife said that at the time of becoming a tenant of Mr Harraca’s he was using methylamphetamine “close to daily”.[47]  When he received his Centrelink payment he would use methylamphetamine pretty much daily until his money ran out.[48] 

[47] T 894 L 9

[48] T 894

109However, once he moved into White Street and began doing work for Mr Harraca, his access to methylamphetamine changed.  He said “I’d just get it off Sherif”.[49]  He said when he worked for Mr Harraca he would go into the office and “stuff”, meaning methylamphetamine, was just there.  He said when he was working for Mr Harraca he would always use methylamphetamine and that would “just get us going like”.[50]  He said that “whenever we were working, Sherif will supply it”.[51]  He said using methylamphetamine while working was “just standard”.  He said “if I was doing work for him, it was pretty much – yeah, he’d – he’d give me some meth to have”.[52]

[49] T 894 L 22-23

[50] T 896 L 7

[51] T 1073 L 2-3

[52] T 897 L 18-19

110Ms Grindrod said she called Mr Quaife on 14 November 2018 and he told her he had not had methylamphetamine that day and asked if she had some.  Mr Quaife this call never occurred and he did not ask Ms Grindrod for methylamphetamine.  He said “I wouldn’t ask Jess that because I know that she gets it off Sherif.  So it would be pointless to even ask that question to her”.[53]

[53] T 922 L 11-13

111For the following reasons I accept Mr Quaife’s evidence about the events of that day:

(a)   I have already found, as a matter of fact, that he and Mr Harraca had consumed methylamphetamine on 14 November 2018.

(b)   The toxicology results could be explained by multiple smaller doses of methylamphetamine, or by one large dose of methylamphetamine on the day of the accident.  Given Mr Quaife’s evidence of multiple uses of the drug that day, and Mr Harraca’s evidence that he would only use a small amount at a time, it is more likely that there were multiple uses of the drug throughout the day of the accident.

(c)   Both Mr Harraca and Mr Quaife gave evidence that they would use methylamphetamine while working, to give them focus and energy.  There was no reason why, on this day, when they were very close to finishing the renovation at Whatley Street, and when Mr Harraca had had two late nights and was tired, they would have departed from that practice.

(d)   Mr Quaife said Mr Harraca was the person who, in general, supplied him with methylamphetamine, particularly when they were working together.  Although Mr Harraca was somewhat more equivocal, saying that he “sometimes” supplied Mr Quaife with methylamphetamine, I am satisfied it is more likely than not that he was the main supplier of methylamphetamine to Mr Quaife, particularly when they were working together.  Mr Harraca had the financial means to obtain methylamphetamine.  Mr Quaife was on Centrelink and was working without pay for Mr Harraca.  In exchange for his labour, I am satisfied that Mr Harraca provided Mr Quaife with methylamphetamine amongst other things such as food and tools.

112Because I have generally accepted Mr Quaife’s version of the events of that day, I do not accept Mr Harraca’s evidence that Mr Quaife had a two-hour lunch with his mother.  Mr Harraca may have been mistaken about the date of any such lunch, or may have given this evidence to bolster his case by creating a period of time in which he and Mr Quaife were not together, and Mr Quaife could have consumed methylamphetamine without his knowledge. However, it is highly unlikely that, even if Mr Quaife did have a two-hour lunch with his mother on that day, he would have used methylamphetamine while in her company, particularly given his preferred mode of use was by intravenous injection.  It is far more likely that he used methylamphetamine while at work with Mr Harraca.

113I also accept Mr Quaife’s evidence that he and Mr Harraca left Whatley Street after dark, although he was unsure of the exact time.  On Mr Harraca’s evidence he had worked late on the Monday night at Whatley Street, and had a late night on Tuesday night.  It is inherently unlikely that he was up early and at Whatley Street by 9:00am, as he said.  It is more likely that they arrived at Whatley Street mid-morning or closer to lunch time as Mr Quaife recalled.  Given this start time, it is more likely they would have stayed beyond 5:00pm, to keep working on the nearly completed renovation.  This is also more likely, given that I am satisfied they had used methylamphetamine on at least a couple of occasions during the day.  Mr Quaife, Mr Harraca and Ms Grindrod all confirmed that they did not keep regular 9:00am to 5:00pm working hours.  It is inherently unlikely that, on this single occasion, they worked a standard day without the use of any methylamphetamine. 

114It follows that I also do not accept Ms Grindrod’s evidence about the phone call she says she had with Mr Quaife at around 6:00pm.  This appeared to be an attempt to explain why she had called Mr Quaife, in order to provide a pretext for her alleged conversation with him in which he said he had not had any methylamphetamine that day.  I formed the view that this evidence was given in an attempt to support Mr Harraca’s case.  On the basis of the toxicology reports, Mr Quaife had, in fact, consumed methylamphetamine that day.  There would have been no reason for him to tell Ms Grindrod that he had not.  Further, I accept Mr Quaife’s evidence that he would not ask Ms Grindrod for methylamphetamine because, like him, she got her supply from Mr Harraca.   

115I do not accept Mr Harraca’s evidence that he returned home at about 5:30pm and he had a bath, got into his pyjamas and settled in for the night, only to be disturbed at 10:00pm by Mr Quaife wanting to get a pizza.  This version of events is inherently unlikely.  If Mr Harraca was as tired and ready for bed as he claims, it makes little sense that he would agree, against his wishes, to go out to get pizza at what must have been, on the findings I have made, close to midnight. 

116Mr Quaife estimated that there would have been no more than 30 minutes between getting to his own room at 44 White Street and departing for Whatley Street.  Working back from the accident time at about 12:30am, Mr Quaife and Mr Harraca likely left White Street at around 12:15am on 15 November 2018.  Mr Quaife would have returned to his room from Mr Harraca’s unit sometime between 11:30pm and 12:00am.  He said after returning to White Street they used methylamphetamine in the kitchen of Mr Harraca’s unit.  This means they probably arrived home from Whatley Street sometime between 10:30pm and 11:30pm.  Taking into account the time to travel from Whatley Street to White Street and the stop at the Shell service station to purchase methylamphetamine, they likely left Whatley Street between 9:30pm and 10:00pm.  This accords with Mr Quaife’s evidence that it was dark and the street lights were on when they left Whatley Street.  Given the time of year and the fact that daylight savings had commenced, it would not have been completely dark until around 9:00pm.

117This means that, aside from the period before they left for work in the morning of 14 November 2018, and the half hour or so when Mr Quaife returned to 44 White Street after work and before departing again around midnight, Mr Quaife and Mr Harraca were together for the entire day. 

118Given their history of consumption of methylamphetamine together, there is no plausible reason why Mr Quaife would have kept his methylamphetamine consumption from Mr Harraca, or have consumed his methylamphetamine in secret.  As I am satisfied, on the balance of probabilities, that Mr Harraca supplied the methylamphetamine Mr Quaife consumed, it is highly probable that Mr Quaife consumed it, either in Mr Harraca’s presence, or with Mr Harraca’s knowledge.

119I am satisfied that Mr Harraca was aware that Mr Quaife had consumed methylamphetamine during the course of 14 November 2018, on at least 2 occasions at Whatley Street and in the kitchen at 42 White Street after returning from work.

Was Mr Quaife exhibiting signs of drug use to find that Mr Harraca had knowledge of consumption?

120Professor Ogden and Dr Robertson both gave evidence about the possible signs a methylamphetamine user may exhibit, but both agreed that the signs can be variable from person to person.  In addition, the signs of methylamphetamine use differ, depending on when the methylamphetamine was consumed.  Symptoms immediately after consumption, such as increased energy, euphoria and talkativeness, may give way to different symptoms as the drug wears off, such as irritability, paranoia and restlessness.  The symptoms displayed will also be impacted by the user’s tolerance for the drug.   

121Typically, methylamphetamine use suppresses appetite and fatigue, making it difficult to sleep.  However, after a period of prolonged methylamphetamine use, the user will no longer be able to combat the body’s need for sleep.  Even with methylamphetamine still in the bloodstream, the user may experience overwhelming fatigue.  Given that both Mr Harraca and Mr Quaife describe Mr Harraca having a “cat nap” within minutes of getting into the car on the night of the accident, it is likely that Mr Harraca, after two previous late nights and heavy methylamphetamine consumption, was in the phase of the cycle where his body could no longer fight the fatigue, even though high levels of methylamphetamine remained in his blood stream.

122This is consistent with Mr Harraca being able to fall asleep, notwithstanding having used methylamphetamine in the kitchen after returning to White Street at about 10:00pm.

123Ms Grindrod said she saw Mr Harraca and Mr Quaife in the driveway shortly before the accident and they both looked tired but were not in any way obviously drug-affected. She says at that time she was aware how both of them looked when they had used methylamphetamine, and to her observation, neither of them looked like they had used methylamphetamine. 

124Even if I accept this evidence, Ms Grindrod’s observations of Mr Quaife provide no assistance, given that I am satisfied Mr Harraca had actual knowledge of Mr Quaife’s consumption of drugs.

125Mr Harraca submits that the toxicology evidence was not quantified to determine tolerance or impairment level and that Professor Ogden made speculative comments, favourable to the defendant, without a valid scientific basis.

126I take this submission to be that, regardless of the level of methylamphetamine in an individual’s bloodstream, an expert cannot say with any certainty what impact methylamphetamine will have on an individual.  I accept that the symptoms an individual displays will vary and will depend on tolerance.  Both Professor Ogden and Dr Robertson expressed this view.  The degree to which an individual is impaired by the presence of methylamphetamine will also be variable.

127Had I accepted Mr Harraca’s evidence that he did not have actual knowledge that Mr Quaife had consumed methylamphetamine, it would have been necessary for me to determine whether Mr Quaife was likely to be exhibiting symptoms, such that Mr Harraca must have known he was drug-affected.

128However, because Mr Harraca had actual knowledge that Mr Quaife had consumed methylamphetamine, it is irrelevant whether Mr Quaife displayed any symptoms of having consumed the drug.

Was Mr Harraca aware that Mr Quaife’s capacity to drive was impaired?

129Mr Harraca was a long-term methylamphetamine user.  At the time of the accident, he had used methylamphetamine for about ten years.  He said that the amount of methylamphetamine he was using was not increasing. 

130Mr Harraca agreed he was tolerant to the drug, to the extent that taking the drug did not make him feel “high” but rather assisted him with focus and motivation.  He attributed this to his long-term use of the drug.

131Mr Harraca said that he always asked anyone who drove his car whether they were alright to drive.  On this occasion he said he checked with Mr Quaife that he felt alright to drive.  He said Mr Quaife was not showing any signs of being intoxicated or drug-affected. Mr Harraca said Mr Quaife was a good driver. 

132Mr Quaife agreed that he was “[al]right to drive”.[54] He did not recall whether Mr Harraca asked him if he was ok to drive “because I was driving regardless”.[55]  In response to Mr Harraca’s question as to whether methylamphetamine impaired his ability to drive, Mr Quaife said “well, we were always using methylamphetamine and driving so it didn’t matter”.[56]

[54] T 930 L 25

[55] T 930 L 27-28

[56] T 938 L 2-3

133Mr Quaife said he thought he was a good driver and agreed with Mr Harraca that he had no prior accidents, did not generally speed and had never been fined while with Mr Harraca.[57]

[57] T 938-939

134Mr Harraca asked him whether, if he felt he could not drive, he would have said something.  He said “Um yeah, cause I’d already  -I remember saying to you, I- I couldn’t be bothered.  I didn’t want to got back and get the tools because I – I couldn’t be bothered going back to Whatley.  But then you said “Well no come on”, you know, I’ve gotta come with you, so I came with you”.[58]  He agreed that he was not forced to drive, and that Mr Harraca had never punished him for not driving when asked.

[58] T 931 L 6-11

135The issue is not, however, whether Mr Quaife considered he was impaired or not, but whether Mr Harraca, knowing that Mr Quaife had consumed methylamphetamine, knew that Mr Quaife’s capacity to drive was impaired and, in so knowing, accepted the risk of driving with him.

136Mr Harraca said he knew it was against the law to drive with methylamphetamine in one's system.[59]   He said he now understood that taking methylamphetamine effected a “chain reaction” and that it was dangerous.[60]   He said that, as a result of courses that he had done since the accident, he was now aware that methylamphetamine can last for a long time in the body, and as a result he does not drive at all when he uses methylamphetamine now.  Implicit in this evidence was an inference that he did not know this before.

[59] T 396 L 8-9

[60] T 396-397

137He agreed that the reason it was illegal to drive with methylamphetamine in one's system because it was dangerous and agreed that “it is obvious now”[61] but said “back then I was thinking differently”.[62]

[61] T 452 L 16-17

[62] T 452 L 20-21

138He said he thought it would be dangerous to drive “if you’re not feeling – if you’re feeling hot you can’t drive, or if you’re feeling that you’re – you know, you’re not coherent to drive and it’s a bit (indistinct) to drive”.[63]

[63] T 452 L 25-28

139He said that his state of mind, prior to the accident, was that if someone had drugs in their system, even if they had just taken drugs, it was safe to drive so long as they thought they were okay to drive.  He said “I was wrong, because I wasn’t taking a lot  - a big amount.  I would say about myself only”.[64]

[64] T 453 L 7-8

140He was asked whether, if he saw a young person who had taken methylamphetamine, he thought they would be safe driving.  He said “I’m answering for myself because [I] wouldn’t trust someone if they are not able – if I see them taking – I don’t know what to say about that”.[65]

[65] T 453 L 12-14

141When pressed on this and asked whether, if he knew another person, not himself, had taken methylamphetamine, that it would not be safe for that person to drive he said “I would think so, yes.  If I seen them I would know it would have been dangerous, yes, but I don’t know – I’m just talking about myself there.”[66]

[66] T 454 L 2-5

142He said on the night of the accident “I made a judgment that I was [too tired] to drive, right, and I looked at Matthew and he was – he looked all right to me, he looked fine to drive okay.  So he was – I wouldn’t have given him his car keys”.[67]  He said if Mr Quaife had shown signs of being intoxicated, such as driving erratically, he would have told him to pull over, but there were no such signs present.

[67] T 397 L 6-9

143The question is whether, knowing that Mr Quaife had taken methylamphetamine on multiple occasions throughout the day, Mr Harraca knew of the nature and extent of the risk which eventuated, appreciated the nature and extent of that risk and freely and voluntarily accepted that risk.

The defence of voluntary assumption of risk

144To establish the defence of voluntary assumption of risk or volenti, the defendant must prove not just that the plaintiff perceived the existence of danger, for that alone would be insufficient, but fully appreciated it, and voluntarily accepted it.  The question of whether a plaintiff has voluntarily accepted a risk is ordinarily a question of fact and may be inferred from conduct in the circumstances.[68]

[68] Roggenkamp v Bennett (1950) 80 CLR 292 (“Roggenkamp”) at [300]

145The inference that a plaintiff voluntarily accepted a risk may be more readily drawn where it is proved that a plaintiff knew and comprehended the danger, where the danger was apparent, or where proper warning was given of the danger.  It will also be relevant to consider whether the plaintiff was obliged to incur the risk or had no reasonable opportunity to elect whether or not to take the risk.[69]

[69] Roggenkamp at [300]

146In Roggenkamp, the majority of the High Court was satisfied that findings of fact, made by the trial judge, that the plaintiff had participated in causing the driver’s intoxication by drinking with him, and therefore knew of the driver’s intoxication, were sufficient to support the finding that the plaintiff voluntarily encountered the risk, which was obviously associated with the drunken condition of the driver.  The High Court found there was no necessity in undertaking the car trip, and that, though the plaintiff was also drunk, there was no evidence that he was so drunk he was incapable of appreciating that the driver was very drunk.   The defence was made out; there was no breach of duty by the defendant driver.

147In Biggs v O’Connor,[70] Keogh J observed that the circumstances in which a volenti defence will succeed are relatively rare.  In that case, Mr Biggs, a pillion passenger on O’Connor’s motorcycle, died when the motorcycle crashed. His widow sued for damages.  Mr Biggs, Mr O’Connor and two others had been playing golf together prior to the accident.  Keogh J found that Mr Biggs was aware that Mr O’Connor was drinking alcohol during the round of golf, but was not aware of the amount he had consumed.  Other evidence about Mr O’Connor’s behaviour was insufficient to establish that Mr Biggs had actual knowledge of the risk he was taking by riding as a pillion passenger on Mr O’Connor’s motorcycle.  Mr Biggs did voluntarily accept the risk of riding without a helmet, but there was no evidence that that was the risk that eventuated – that is, the lack of a helmet was not the cause of death.  In those circumstances, Keogh J found that the evidence did not support an inference that Mr Biggs believed Mr O’Connor to be so grossly intoxicated that he voluntarily accepted the risk of riding with Mr O’Connor in that condition.[71]

[70] [2021] VSC 826 (“Biggs”)

[71]        Biggs at 61-62

148Mr Harraca’s practice of always asking Mr Quaife (and others) whether he was ”right to drive” suggests that Mr Harraca knew that, even when a person was not displaying obvious signs of intoxication or incapacity, they might still be impaired.  I infer that he asked that question because he knew that, despite appearances, Mr Quaife might not be safe to drive.

149Mr Harraca is a highly intelligent man.  He completed a tertiary undergraduate degree and most of a Master’s degree.  He has run a number of businesses and has bought, sold, renovated and managed many properties.   Prior to the accident, and notwithstanding some financial difficulties, he was able to support himself and his family in a substantial home in Brighton, without the assistance of social security, and to engage in his pastimes, including playing in poker tournaments and paying for his methylamphetamine use.   

150It is simply not plausible that an intelligent man such as Mr Harraca believed that consumption of methylamphetamine did not impair one's ability to drive safely. 

151Because Mr Harraca had previously driven with Mr Quaife after he had used methylamphetamine without incident, he may have been willing to accept the risk on this occasion. However, that does not mean he was unaware of the risk.

152Had I accepted Mr Harraca’s evidence that he and Mr Quaife had not consumed methylamphetamine together on the day of the accident, then this might have been a scenario similar to that in Biggs. A person who is aware only that a driver has consumed methylamphetamine twenty-four hours before driving might not be aware that the drug could remain in the system or continue to have an impact on one’s capacity to drive.  In such circumstances, the nature and extent of the risk might not be appreciated or accepted.

153However, the toxicology evidence overwhelmingly supports a finding that methylamphetamine had been taken during the day of the accident.  Given that both Mr Harraca and Mr Quaife said their usual practice was to take a “point” or a “dot” at a time, and given the toxicology results 2 hours after the accident, it is overwhelmingly likely that both of them had consumed methylamphetamine, as Mr Quaife said, in the kitchen at White Street after returning from work in Whatley Street within the hour or so before the accident.  In those circumstances, with a build-up of methylamphetamine use over the day, plus “fresh” methylamphetamine on board, I can infer that Mr Harraca knew that Mr Quaife’s capacity to drive was impaired.

154The fact that the risk, posed by driving under the influence of methylamphetamine, had not eventuated on other occasions, does not mean that Mr Harraca did not know the nature and extent of the risk which did eventuate on 15 November 2018.

155If, as I find, Mr Harraca knew that a person who had consumed methylamphetamine had a reduced or impaired capacity to drive, logic dictates that Mr Harraca also knew that an impaired driver was at greater risk of having a car accident.

156The nature of the risk was the risk of a car accident.  It is common knowledge, and I find Mr Harraca understood, that a car accident can cause death or very serious injury.  It is not possible to accept that, if Mr Harraca knew that methylamphetamine impaired Mr Quaife’s driving capacity, he was nevertheless ignorant of the risk that an impaired driving capacity posed.

157Once it is accepted that a reduced driving capacity results in an increased risk of a car accident, the extent of that potential risk, should it eventuate, is obvious. 

158It follows from the findings I have made that Mr Harraca knew Mr Quaife had consumed methylamphetamine, that he had supplied the drug to Mr Quaife, and that he freely and voluntarily accepted the risk of getting into a car which Mr Quaife was driving.  In fact, I am satisfied that he not only freely got into the car with Mr Quaife, but he requested that Mr Quaife drive, as he himself was too fatigued to do so.

159I have rejected Mr Harraca’s evidence that he was persuaded or cajoled by Mr Quaife into accompanying him on a drive to get pizza. 

160Mr Harraca’s evidence about checking on Whatley Street was also not persuasive.  Initially he did not mention Whatley Street at all as a motivation for going out.  The sole reason he gave was to get pizza for Mr Quaife.  He then said that he might have decided to check on Whatley Street just “randomly”.  He then said that, in addition to going to get pizza, he had received a message that something had been left out at Whatley Street, either a door or some tools, and that they might put them away, but “it wasn’t imperative” that he go back and get them, because the Whatley Street unit was down the back of the property and was not visible from the road.  Upon further questioning, he thought that he had probably been told that power tools had been left out.[72]  

[72] T 434

161It is implausible that Mr Harraca would not be concerned about putting away the power tools. It is far more likely that he asked Mr Quaife to drive him back to Whatley Street to put them away.  Mr Harraca’s evidence seemed to be an attempt to underplay the need to go out on the night of the accident, and to put the responsibility for the outing on Mr Quaife’s shoulders.  The fact that tools were left out and the need to put them away provides a persuasive explanation for why, despite his evident fatigue, Mr Harraca wanted to go out late at night, and why he might be willing to take the risk of driving with Mr Quaife to do so.

162Had, despite his evidence, Mr Harraca deemed it imperative to return to Whatley Street to put the tools away, he could have taken a taxi, or even asked Mr Quaife to take a taxi and put the tools away.   The need to put the tools away does not detract from a finding that Mr Harraca voluntarily accepted the risk of driving with Mr Quaife.  Mr Harraca was not put under pressure, nor was he coerced, into taking the risk.

163Plainly enough, freely and voluntarily accepting a risk does not require a plaintiff to have actual knowledge that the risk will eventuate.  What is required is that a plaintiff has actual knowledge that the risk could eventuate, and, if the risk were to eventuate, what the likely consequences would be.

164There was no evidence that Mr Harraca’s own consumption of methylamphetamine rendered him incapable of voluntarily assuming the risk of driving with Mr Quaife.  On his own evidence, his tolerance to the drug was high, and he no longer experienced a feeling of being “high” when he took it.  Instead, he used it to give him energy and help him with focus and motivation. 

165Despite the high level of methylamphetamine in his bloodstream, there was no evidence that satisfied me that Mr Harraca was so affected by the drug that he was incapable of freely and voluntarily accepting the risk of driving with Mr Quaife.

166Accordingly, I am satisfied that Mr Harraca was aware that Mr Quaife had consumed methylamphetamine, was aware that this presented a risk to his capacity to drive safely, was aware that, if Mr Quaife was unable to drive safely, a serious car crash was a possible outcome, and voluntarily accepted that risk.

167The unfortunate consequence of this finding, for Mr Harraca, is that his case fails.

Contributory Negligence

168As a result of my findings in relation to volenti, there is no need for me to consider the alternative defence of contributory negligence. 

169However, I make the following brief comments:

(a)   The defence of volenti requires a subjective test.  I must be satisfied that Mr Harraca voluntarily assumed the risk. 

(b)   A defence of contributory negligence is an objective test and requires me to consider whether a reasonable person, in the position of Mr Harraca, contributed to his own injuries by his own negligence.

(c)   If I am wrong in my findings in relation to volenti, in that Mr Harraca did not fully appreciate the extent of the risk he was incurring because he did not, at that time, understand that methylamphetamine affects one’s capacity to drive, then I would nevertheless be satisfied that he did contribute to his own injuries by his own negligence.

(d)   This is because I am satisfied that a reasonable person would be aware that a person who consumed methylamphetamine would have an impaired ability to drive.

170I would have been satisfied that, by providing methylamphetamine to Mr Quaife an hour or so before the accident, and then driving in a car with him, Mr Harraca was negligent and his negligence contributed to his own injuries.  I note that Mr Harraca was older and was Mr Quaife’s landlord and informal employer.  It was apparent from Mr Quaife’s evidence that he felt a degree of admiration for, and gratitude, to Mr Harraca.  Mr Quaife said he had learned a great deal from Mr Harraca and that he enjoyed working for Mr Harraca.  I consider Mr Harraca was in a position where it would have been, at least, uncomfortable and awkward for Mr Quaife to refuse to drive him to Whatley Street when requested to do so.  He would have had to refuse the request of a man he liked and respected, who was providing him with an opportunity to attain new skills and who was providing him with desired goods, including methylamphetamine and his place of residence.  Having regard to my finding that Mr Harraca supplied the methylamphetamine and requested Mr Quaife to drive to Whatley Street, I would apportion 70% of Mr Harraca’s injury to his own contributory negligence.

171I make the following observation. I do not consider there is an alternative finding to the finding that both Mr Harraca and Mr Quaife consumed methylamphetamine on the day of the accident.  However if I am wrong that Mr Harraca had actual knowledge of Mr Quaife’s consumption of methylamphetamine, then I would not have been persuaded, on the evidence, that a reasonable person in Mr Harraca’s position would have known Mr Quaife was drug affected by reason of his behaviour.  The expert evidence was that the signs and symptoms of methylamphetamine use are variable and depend on the phase of the cycle the user is in.  Those signs and symptoms will likely be reduced in a person with a high tolerance to the drug.  I could not be satisfied that, at the time Mr Harraca got into the car with Mr Quaife, Mr Quaife must have been exhibiting such obvious signs and symptoms of methylamphetamine use, that a reasonable person would have known that he had used the drug and avoided getting into the car.  In circumstances where Mr Harraca had no actual knowledge of Mr Quaife’s drug use, I would not consider Mr Harraca contributed to his own injuries.

Assessment of damages

172As Mr Harraca’s claim has failed, it is not necessary to undertake an assessment of damages.

173Nevertheless, I set out here the general approach I would have taken, had an assessment been necessary.

174Mr Harraca has been very badly injured.  He has been left with a very severe physical injury which causes him to walk with a pronounced limp and requires the use of a walking stick.  He is in constant and significant pain.  He cannot stand for long periods.  He was confined to a wheelchair for a substantial period after the accident.  He required numerous surgeries.  He has an exacerbation of his pre-existing psychiatric condition.  I am satisfied that, before the accident, he was suffering from depression, although I have limited information about the likely extent and duration of that condition, had the accident not occurred.

175In any event, I would consider that Mr Harraca would be entitled to very substantial damages for pain and suffering and loss of enjoyment of life, had his claim succeeded.  Any assessment would have been towards the top of the “range” of damages for a very severe injury.

176His claim for loss of earnings and loss of earning capacity is more difficult to assess.  His tax returns show he had no taxable income in the years prior to the accident, and that his property business was running at a loss.  The amounts he was receiving in rent did not cover the amounts he was having to pay in mortgage repayments.  From time to time, he sold a property and obtained an injection of capital through the net increase in the value of the property.  Through his own labour and endeavours, he contributed to the increase in the value of his properties by undertaking renovations personally.

177Mr Harraca relied on various accountant reports, as well as evidence from his accountant,  which attempted to put a value on the cost of the work he was doing on his properties and extrapolate those costs into an income of which he was now deprived.  For example, because he managed the payment of rent himself, he saved himself the fees associated with having a real estate agent undertake this work.  This, it was said, was a net value that he was entitled to claim.  The difficulty with this approach is that there was no evidence that he was now unable to manage payment of the rent in much the same way as he had done before the accident.  Most of his tenants were on Centrelink payments and had their rent directly debited through “Centrepay” whereby Centrelink makes rent payments directly to the landlord.  Ms Grindrod’s evidence was that, both before and after the accident, she was providing Mr Harraca with assistance in running and managing his properties.  In exchange for her work she received a rent reduction.

178I accept that Mr Harraca’s capacity to undertake maintenance on the properties himself, or to renovate properties for sale, would be significantly curtailed as a result of his injuries.  The difficulty in assessing the loss to him, however, is the absence of evidence about what properties had been renovated or maintained since the accident and the cost of that to him, or, in the alternative, evidence that the properties had lost value as a result of not being renovated or maintained and the value of any such loss.  Mr Harraca retains a significant property portfolio worth about $3.5 million. 

179It is difficult to avoid a conclusion that, prior to the accident, Mr Harraca’s business was already facing significant challenges, largely as a result of fire damage to three properties that were not insured.  Mr Harraca said that he was about to get back onto his feet in relation to his property business at the time of the accident.  There was an absence of evidence about why the Whatley Street property, the renovation of which was nearly complete at the time of the accident, was apparently left to fall into a state of disrepair.

180There were allusions in the evidence to other factors at play, including that Mr Harraca owed money to various people, and that some undesirable people had become tenants who were not paying rent.  There was evidence that squatters had moved into some of his properties.  There was insufficient evidence about these matters for me to be able to quantify what of the difficulties he experienced could be attributed to the accident, and what loss he sustained as a consequence.  I could not identify any past loss of earnings for which Mr Harraca could be compensated.

181This is not to say that I do not accept that the very significant injuries Mr Harraca sustained have resulted in a loss of earning capacity.  The difficulty is in quantifying that loss.  I am not satisfied that Mr Harraca has no earning capacity.  He is an intelligent man, and, notwithstanding his difficulties, retains marketable skills.

182Counsel for Mr Quaife submitted that the appropriate assessment in the circumstances was to make a fair and reasonable allowance for the loss of earning capacity that Mr Harraca has sustained, structured as a global figure.  I accept that submission.  Had I been required to do so, I would have approached the assessment of his loss of earning capacity by determining, as a global figure, a fair and reasonable sum in compensation. Such a sum would have been more than a nominal sum to represent a potential future loss, but would not have been an assessment of a weekly loss amenable to an actuarial multiplier.

Orders

183The plaintiff’s claim is dismissed.

184I will hear the parties on the question of costs.