Raad v Cossey

[2022] NSWDC 59

District Court

New South Wales

Medium Neutral Citation:

Raad v Cossey [2022] NSWDC 59

Hearing dates:

18 - 22 August 2018; 30 November 2021; 7, 21 and 22 December 2021; 11 February 2022

Date of orders:

15 March 2022

Decision date:

15 March 2022

Jurisdiction:

Civil

Before:

Cowdroy AO QC ADCJ

Decision:

(1) Judgment for the defendant.

(2) Costs reserved.

(3) Exhibits retained for 28 days.

Catchwords:

TORT – negligence – motor vehicle accident – plaintiff claiming damages for personal injury – judgment on liability only – defence of joint illegal enterprise – defence of conduct tainted with illegality – defence under s 5D of the Civil Liability Act – contributory negligence

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5R, 5S, 49 and 54

Civil Procedure Act 2005 (NSW), ss 56 and 64

Crimes Act 1900 (NSW), s 351B

Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 12, 19 and 25

Evidence Act 1995 (NSW), s 128

Motor Accidents Compensation Act 1999 (NSW), s 138

Road Transport (Driver Licensing) Act 1998 (NSW), s 25

Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 12 and 42

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:

Bevan v Coolahan [2019] NSWCA 217

Cockburn v Jacobsen [2017] ACTSC 380

Cook v Cook [1986] HCA 73; (1986) 162 CLR 376

Cusack v Stayt [2000] NSWCA 244

Fabre v Arenales (1992) 15 MVR 303

Gala v Preston [1991] HCA 18; (1991) 172 CLR 243

Giorgianni v The Queen (1985) 156 CLR 473

Godbolt v Fittock [1964] NSWR 22

Goodrich Aerospace Pty Limited v Arisic [2006] NSWCA 187

Huynh v The Queen [2013] HCA 6

Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39

Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438

Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34

Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666

Manning v Noa (1956) 77 Am LR 2d 955

McAuliffe v R (1995) 183 CLR 108

Miller v Miller [2011] HCA 9; (2011) 242 CLR 446

Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30

Moors v Burke (1919) 26 CLR 265

Motor Accidents Authority of New South Wales v Mills [2010] NSWCA 82

Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell [2013] NSWCA 219

Nominal Defendant v Meakes [2012] NSWCA 66

Osland v The Queen (1998) 197 CLR 316

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492

Quine v Keeraswat [2014] WADC 150

R v Rawcliffe [1977] 1 NSWLR 219

Raad v Cossey (District Court of New South Wales, Cowdroy OAM QC DCJ, 21 August 2018)

Raad v Cossey (District Court of New South Wales, Cowdroy AO QC ADCJ, 24 February 2021

Raad v Cossey (re application to amend statement of claim) (District Court of New South Wales, Cowdroy AO QC ADCJ, 15 March 2022)

Reardon v Seselja [2021] ACTCA 4

Smith v Jenkins (1970) 119 CLR 397; [1970] HCA 2

Strong v Woolworths Ltd [2012] HCA 5

Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59

The Nominal Defendant v Cooper [2017] NSWCA 280

The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Wallace v Kam (2013) 250 CLR 375

Williams v Government Insurance Office of New South Wales (1995) 21 MVR 148

Category:

Principal judgment

Parties:

Plaintiff: Raad Raad
Defendant: Peta-Lee Cossey

Representation:

Counsel

Plaintiff: Mr B Gross QC / Mr J Jobson
Defendants: Mr Deakin QC / Mr B Wilson

Solicitors
Plaintiff: Harrow Legal
Defendants: Hall & Wilcox

File Number(s):

2014/262109

Publication restriction:

None

Headnote

[This headnote is not to be read as part of the judgment]

The plaintiff brings proceedings for negligence against the defendant arising out of a single vehicle accident where the defendant was the driver and the plaintiff was the passenger.  The plaintiff was, at the relevant time, the owner of the motor vehicle.

Prior to the hearing, the plaintiff obtained a 25% whole person impairment from MAS.  After inconsistencies arose in the evidence presented at trial, the defendant sought a review of the 25% whole person impairment.  Following a two year delay, MAS revised its assessment of the plaintiff’s whole person impairment to 7%.  Following this review, the plaintiff sought a further assessment with the Personal Injury Commission (previously MAS) in relation to his claimed psychiatric injury, which had never been assessed.  This assessment remains pending as at the date of this judgment.

The parties have since agreed, and the Court has granted, an application to separate the issue of liability from quantum.  This judgment relate to liability issues only.

The defendant challenges whether a duty of care is owed by the defendant because of the circumstances leading up to the accident, including:

1. the arrangements made between the plaintiff and the defendant concerning which of them would drive the vehicle (as neither party held a driving licence);

2. the supply of drugs by the plaintiff to the defendant in the hours prior to their journey;

3. the fact that both parties consumed drugs together prior to their journey;

4. the fact that the defendant stopped the vehicle during the journey and informed the plaintiff that she was unfit to drive;

5. the fact that the plaintiff urged the defendant to continue to drive despite knowing or being aware of her unfitness to drive;

6. the plaintiff’s consumption of drugs in the vehicle whilst he was being driven by the defendant.

The defendant raised the following defences:

1. joint illegal enterprise (see [160]-[177]);

2. conduct tainted with illegality that no duty of care arose (see [178]-[193]);

3. that the scope of liability under s 5D(1)(b) of the Civil Liability Act 2002 (NSW) should not be extended to the harm suffered by the plaintiff (see [194]-[211]);

4. contributory negligence (see [212]-[230]).

Held:

In relation to (a), it is found that the defendant owed the plaintiff no duty of care in the circumstances.

In relation to (b), it is found that the defendant owed the plaintiff no duty of care.

In relation to (c), it is found that s 5D(1)(b) should not be extended to find a duty of care between the plaintiff and the defendant.

In relation to (d), it is found that, in the event the Court erred in its findings in relation to (a) to (c) above, a 70% contributory negligence finding is made.

Judgment

The Claim

1. The plaintiff claims damages against the defendant alleging negligence resulting from a single vehicle collision which occurred on 8 September 2011 in Henry Lawson Drive, East Hills (“the accident”). The plaintiff claims to have no recollection of the accident and accordingly the only evidence is that of the driver of the motor vehicle, namely the defendant, and of a witness, Constable Colefax, who was an off-duty police officer at the time. The statement of claim states that CARS has issued a Certificate of Exemption dated 27 March 2013 pursuant to s 92(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”).

2. This decision relates only to the issue of liability. By consent, the parties have requested the Court to determine liability in advance of any issue of damages pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW). The circumstances in which this order was made are set out later in this decision.

3. The plaintiff pleads the following particulars of negligence against the defendant:

1. Driving at an excessive speed;

2. Failure to keep the vehicle under control;

3. Failure to properly steer the vehicle;

4. Failure to brake the vehicle in time;

5. Failure to keep a proper lookout and reduce the speed of the vehicle keeping in mind the terrain of the road.

4. The plaintiff claimed disabilities as follows:

1. Injury to the brain with loss of consciousness for several days;

2. Bleeding on [sic – in] the brain;

3. Fractures to the facial bone;

4. Scarring;

5. Loss of memory;

6. Constant pain in the neck;

7. Dizziness;

8. Loss of balance;

9. Blurred vision;

10. Constant pain in the back; inability to sit for long periods of time; [Note: “inability to sit for long periods of time” is a separate particular]

11. Inability to stand for long periods of time;

12. Inability to walk for long periods of time;

13. Inability to properly attend to personal care and domestic chores;

14. anxiety;

15. depression.

Procedural history of proceedings

5. Before setting out my reasons for decision, I set out the procedural history of this case, in order to explain the extensive delays between the hearing and this decision. The delays are not attributable to any person nor to the Court; but extensive delays have occurred in the medical assessments of the plaintiff. Such delays have been exacerbated by COVID restrictions.

First MAS Assessment

6. On 5 September 2014 the Statement of Claim was filed and, following the filing of a Defence, the Judicial Registrar made orders on 12 November 2015 setting down the proceedings for hearing on 26 July 2016.

7. On 13 May 2016 an Application for Assessment of Whole Person Impairment was lodged by the plaintiff with the Medical Assessment Service under the Motor Accidents Compensation Act 1999 (NSW) (hereafter referred to as “the Act”). Accordingly, on 30 May 2016, the hearing was vacated to allow for the MAS determination.

8. On 14 November 2016, his Honour Judge Letherbarrow SC noted in his orders that the matter is “still in MAS as per its letter of 13 October 2016”. I have set out below the text of this letter, which is attached to his Honour’s orders on JusticeLink:

“I refer to previous correspondence regarding the above matter. I note that the claimant attended an appointment with Assessor Melissa Barrett on 12 September 2016 for assessment of a psychological injury, and that no physical injuries were listed in either the application or reply. Assessor Barrett has indicated that she feels that an assessment of the claimant’s brain injury is required in order to prepare her MAS Certificate.

The matter will be referred to a neurologist for assessment under the ABI protocol. We invite you to make submissions regarding the brain injury no later than close of business on Wednesday 26 October 2016. The matter will then be referred for assessment after this date.”

9. As note in this letter, the injury for assessment related to the plaintiff’s “brain injury”.

10. On 23 December 2016 MAS Assessor Cameron issued a certificate assessing a 25% whole person impairment in respect of the plaintiff’s brain injury.

11. On 20 November 2017, his Honour Judge Letherbarrow SC fixed this matter for hearing to commence on 13 August 2018.

12. On 14 December 2017, his Honour Judge Wilson SC made the following orders:

1. I make orders in accordance with the Standard Orders #1 (The Yellow Sheet) handed to the parties today and placed on the court file.

2. I further order that in the event that the plaintiff wishes to rely upon an alternate psychiatrist, an application for leave to do so is to be filed on or before 4pm Friday 9 February 2018.

13. The reference to “Standard Order #1 (The Yellow Sheet)” is a reference to the following order:

“The plaintiff is not permitted to rely upon the opinion or any expert report(s) of Dr Akkerman at the hearing of these proceedings.”

14. On 12 April 2018, her Honour Judge Balla made orders as follows putting in place a timetable for the parties to provide any “supplementary liability and/or medial expert reports” and confirming the 13 August 2018 hearing date:

1. The defendant to serve any supplementary liability and/or medical expert reports it intends to rely upon by 24/5/18.

2. The plaintiff to serve any supplementary liability and/or medical expert reports it intends to rely upon by 5/7/18.

3. The defendant to file and serve any Notice of Motion to amend its Defence by 26/4/18.

4. Hearing date confirmed.

15. On 13 August 2018 the hearing of the plaintiff’s claim commenced in this court and continued until 22 August 2018. On 15 August 2018, after hearing a contested application, I granted leave to the defendant to file in court a Second Further Amended Defence. Also on 15 August 2018, I granted leave to the plaintiff to amend his particulars of disabilities to include a claim for epilepsy.

16. No psychiatric evidence was adduced by the plaintiff at the trial. However a psychological report of Dr Gary Banks was relied upon as part of the plaintiff’s medical evidence (contained in Exhibit A). The defendant sought to rely upon the psychiatric evidence contained in report of Dr Roberts. However the plaintiff objected to the use of such evidence, and the Court determined that it was inadmissible.

Second MAS Assessment

17. As a result of significant inconsistencies revealed in the plaintiff’s oral evidence, the defendant applied for a review of the MAS whole person impairment finding and, on 21 August 2018, the Court ordered that the question of whether the degree of whole person impairment of the plaintiff as a result of any brain injury caused by the motor vehicle accident was greater than 10% be referred for further medical assessment pursuant to s 62(1)(b) of the Act. The reasons are set out in the decision Raad v Cossey (District Court of New South Wales, Cowdroy OAM QC DCJ, 21 August 2018). In reaching the conclusion I made, I was mindful of the decision of the New South Wales Court of Appeal in Motor Accidents Authority of New South Wales v Mills [2010] NSWCA 82.

18. I set out below the orders made by me on 21 August 2018 following a contested application on this issue:

“1. Leave granted to file Notice of Motion (re application to refer matter back to MAS) in court.

2. Motion granted

3. Defendant to draft consent order

4. Stood over part heard to 21/8/18 for submissions on liability

CONSENT ORDER TERMS OF ORDER MADE BY COURT

1. The question of whether the degree of permanent impairment of the plaintiff as a result of brain injury caused by the motor accident is greater than 10% be referred for further medical assessment pursuant to section 62(1)(b) of the Motor Accidents Compensation Act 1999.

2. The re-assessment be expedited.

3. The Court orders that only the evidence before the Court is to be provided to the relevant MAS Assessor.

4. The court requests that MAS Assessor Cameron should perform the further medical assessment.

5. The application for further assessment is to be in the form of the draft submitted to the Court by the Defendant”

19. On 29 June 2019 Assessor Ian Cameron, having referred to further assessments and documented deliberate attempts by the plaintiff in feigning responses in a neuropsychological assessment, determined that the plaintiff’s whole person impairment in relation to brain injury is 7% (the “second assessment”, see Exhibit C). It thereby followed that the plaintiff has no entitlement to non-economic loss damages.

20. A review was then sought by the plaintiff of the second assessment. The review panel, in the exercise of its powers under s 63(4) of the Act concluded that the whole person impairment for the assessed injuries was 7%. In reaching its assessment, the Review Panel noted:

“Neither the Assessor or the Panel has been asked for a psychiatric assessment. This is a physical assessment.”

Third MAS Assessment

21. As set out in my earlier judgment (Raad v Cossey (District Court of New South Wales, Cowdroy AO QC ADCJ, 24 February 2021), the plaintiff brought a notice of motion dated 27 October 2020 seeking a third referral to the Personal Injury Commission (“PIC” – previously known as the Medical Assessment Service, “MAS”).

22. The defendant simultaneously filed a notice of motion dated 17 November 2020 seeking an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the question of liability to be determined separately to the question of quantum of damages.

23. The hearing of these motions took place on 11 February 2021 and I delivered a judgment on 24 February 2021 making the following orders:

1. The medical dispute concerning the alleged psychiatric injury suffered by the plaintiff be referred pursuant to s 60(1) of the Motor Accidents Compensation Act 1999 (NSW) to the Medical Assessment Service for assessment of the whole person impairment.

2. The plaintiff and the defendant take all necessary steps to expedite the referral for assessment.

3. The defendant’s motion for a separate determination under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) be adjourned pending the result of the assessment referred to in order (1) above.

4. The cost of the plaintiff’s motion and of the defendant’s motion be costs in the cause.

5. Liberty to either party to apply for re-listing of these proceedings.

Subsequent proceedings

24. As the Court received no communication from the parties concerning the third MAS assessment, the court of its own volition convened directions hearings on the following dates with the view to expediting the third MAS referral:

1. 12 April 2021;

2. 21 May 2021;

3. 7 June 2021;

4. 6 July 2021;

5. 3 August 2021;

6. 17 August 2021;

7. 7 September 2021;

8. 1 November 2021; and

9. 12 November 2021.

25. The delay in progressing the determination of the issues has essentially been caused by the Personal Injury Commission (“Commission”). However, the Court acknowledges that the COVID restrictions may have impacted upon the ability of the Commission to carry out the third assessment.

26. On 29 October 2021, I caused my associate to send the following email to the parties:

“Dear Parties,

Raad v Cossey (District Court Proceedings 2014/262109)

I refer to the orders made by his Honour Acting Judge Cowdroy QC made on 7 September 2021, a copy of which is set out below:

(1) Noting that the PIC Assessment will take place on 19 October 2021 as a face to face appointment.

(2) Adjourn the directions hearing today to a date to be fixed.

(3) The plaintiff is to notify my associate by email within 7 days of receiving the PIC Assessment.

(4) The court will then fix a further directions hearing convenient to the parties and to the court.

Although order (3) above only requires the plaintiff to notify me within 7 days of receipt of the PIC Assessment, his Honour is anxious to ensure that the overriding purpose in section 56 of the Civil Procedure Act 2005 (NSW) is observed and achieved.

For these reasons, this matter will be re-listed on Monday 1 November 2021 at 2:00pm in Court 7D John Maddison Tower for directions. This directions hearing will be conducted via teleconference. Please dial the following number and use the following PIN at the time allocated for the listing:

DIAL: [redacted]

PIN: [redacted]”

27. On 1 November 2021, the parties informed the court that the third assessment had not in fact taken place, as the assessor who was initially assigned to hear the assessment refused to do so, and the replacement assessor required further time to consider the material under referral. The Court inquired of the parties as to the status of the defendant’s outstanding motion seeking an order that the issue of liability be determined separately to the issue of damages pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW). In consequence, the plaintiff acceded to the orders sought by the defendant.

28. Accordingly, I made the following orders on 1 November 2021:

1. The directions hearing is adjourned to Friday 12 November 2021 at 9:00am by telephone.

2. The parties are to confer and advise the court by close of business on Thursday 11 November 2021 on the following matters and, where agreed, to provide the court with a Draft Short Minute of Order signed by both parties documenting:

1. Whether the parties agree to have the issue of liability determined separately from quantum;

2. If agreement is reached as to order (2)(a) above, the parties are to:

1. provide my associate, by close of business on Thursday 11 November 2021, the necessary documentation in affidavit form in compliance with paragraph 9 of District Court Civil Practice Note 16 “Applications for leave for in person appearances in Civil Trials”;

2. confer on a timetable for written submissions, with the view of allowing the parties to speak to their submissions on Wednesday 8 December 2021.

3. Subject to the parties’ agreement in order (2) above, the hearing is tentatively listed part heard on Wednesday 8 December 2021 for submissions on liability only.

29. On 11 November 2021, the parties provided the Court with agreed Consent Orders for the question of liability to be determined separately from the question of quantum of damages pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW).

30. On 12 November 2021, the Court considered that as the issue of liability was a threshold issue, and as the third MAS assessment had not been completed despite the Court’s attempts to expedite the referral and with no indication of when the assessment would be completed, the Court should accede to the request of the parties for separate determination of liability.

31. In reaching its conclusion, the Court was mindful that the issue of liability raised numerous complex issues for determination including joint illegal enterprise, plaintiff’s participation in illegal conduct generally, the application of s 5D(1)(b) of the Civil Liability Act 2002 (NSW) (“CLA”) and contributory negligence. The Court considered that these issues should be determined before any issue of damages was to be considered since an adverse finding to the plaintiff could impact substantially, or even negative, the plaintiff’s claim for damages. The Court is also mindful that the claims considered by the second MAS determination eliminated several of the particulars of injuries. The only remaining question to be assessed, if leave is granted to the plaintiff to reopen to tender any further assessment, would be whether the plaintiff has suffered a psychiatric injury, which is still before the Commission for determination.

32. Accordingly, the Court made the following orders on 12 November 2021:

1. By consent and pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the question of liability is to be determined separately to the question of quantum of damages.

2. The defendant to file and serve its written submissions as to liability only by 26 November 2021.

3. The plaintiff to file and serve its written submissions as to liability only by 3 December 2021.

4. Matter is tentatively set down for hearing on 7 and 8 December 2021, with liberty to apply.

5. The employed solicitor for the plaintiff, Ms Sarah Farhat, is to provide in 7 days either an affidavit stating that she has been vaccinated within the meaning of District Court Civil Practice Note 16, or to supply a copy of her COVID vaccination certificate verifying such fact.

6. Grant leave to the parties under District Court Civil Practice Note 16 to appear in person at the hearing on 7 and 8 December 2021.

7. Any variation to the hearing date is to be made to the Court by emailing my associate.

33. On 30 November 2021, in response to questions raised by the Court concerning inconsistency in the pleadings contained in the Second Further Amended Defence, the defendant indicated that it wished to amend its defence. Such amendment related solely to issues of law and not of fact.

34. On 2 December 2021, the defendant provided the Court with a Notice of Motion and a draft of the Third Further Amended Defence.

35. On 3 December 2021, the plaintiff provided the Court with his latest submissions on liability. Such submissions were predicated upon the basis that the Third Further Amended Defence would be allowed.

36. On 7 December 2021, the defendant sought leave to file and rely upon its proposed Third Further Amended Defence, relying upon Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666, The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 and s 64 Civil Procedure Act 2005 (NSW). Mr Jobson, counsel for the plaintiff, raised no specific objection to the filing of the Third Further Amended Defence and submitted that he “can’t identify a specific prejudice” (see pp 7-8 of the 7 December 2021 transcript). Accordingly, the Court granted leave for the Third Further Amended Defence to be filed and relied upon.

37. Following the hearing of submissions on 30 November 2021, 7, 21 and 22 December 2021, the Court adjourned to consider its judgment on the issue of liability. On 22 December 2021, the plaintiff foreshadowed an application to further amend the statement of claim. According, the following orders were made on 22 December 2021:

1. Plaintiff to file an application to amend the Statement of Claim on or before 8 January 2022.

2. Defendant to respond by 28 January 2022.

3. Proceedings adjourned to a date to be fixed.

38. On 24 December 2021, the Court made the following additional orders:

1. The plaintiff is to provide the defendant with written submissions on the amendment application on a date to be agreed upon prior to 28 January 2022.

2. The parties are to provide a copy of their written submissions to the Court on or before 28 January 2022.

3. By 15 January 2022, the parties are to provide a list of mutually convenient dates in the first two weeks of February 2022 for the hearing of the proposed motion to amend.

39. The plaintiff filed its motion on 7 January 2022. This motion was heard on 11 February 2022 when judgment was reserved. A separate judgment on the notice of motion was handed down prior to delivery of this judgment: see Raad v Cossey (re application to amend statement of claim) (District Court of New South Wales, Cowdroy AO QC ADCJ, 15 March 2022).

The Claim

40. The plaintiff alleges that about 5:30am on 8 September 2011, he was a passenger in a Ford Falcon sedan (the Ford) with registration number AC72JE which was then being driven by the defendant. The plaintiff alleges that the defendant was driving the vehicle at high speed as it entered a bend in Henry Lawson Drive, East Hills, and that the vehicle veered off the roadway, striking a guard rail and then colliding with a fence, a boat and a house. The plaintiff claims to have suffered injuries as a consequence of the negligence of the defendant.

41. The plaintiff makes no claim for economic loss. Any claim for non-economic loss will be dependent upon the outcome of the third MAS assessment which is awaiting determination, and dependent upon a finding of liability in favour of the plaintiff.

42. The particulars of negligence are set out in paragraph 3 of this judgment.

43. The remaining claims relating to injuries are not relevant for the purpose of this decision, which is confined only to the question of liability.

Defences

44. By Third Further Amended Defence filed in court on 7 December 2021 (“the Defence”), the defendant does not dispute that at the relevant date and time the plaintiff was a passenger in the vehicle but does not admit negligence.

45. The particulars of the Defence are as follows:

“1 The defendant admits paragraphs 1, 2, 3 and 4 of the Statement of Claim.

2 The defendant does not admit paragraphs 5 and 6 of the Statement of Claim.

2A The defendant denies owing the plaintiff a duty of care

2B The defendant further denies that any duty of care is owed by the defendant in the following circumstances:

(a) At all material times the parties were engaged in a joint illegal enterprise (b) The driving of the vehicle was so tainted by illegal conduct on the plaintiff’s part that the defendant could not in the circumstances be expected to act sensibly

Particulars

The defendant relies upon the commission of the following offences:

(i) Sections 10, 12, 19 and 25 of the Drug Misuse and Trafficking Act 1985 (NSW)

(ii) Sections 12(1)(a) and 42 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW)

(iii) Section 25(1)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW)

3 If the court is satisfied that a duty of care was owed, notwithstanding the matters set out, in response to paragraph 7 of the Statement of Claim, the defendant admits that she breached her duty of care to the plaintiff but she does not admit the particulars of negligence at sub-paragraphs 7(i) to 7(v) inclusive. Further, the defendant:

(a) denies that the plaintiff suffered the injuries alleged as a result of the collision;

(b) denies that the plaintiff suffered the injuries alleged as a result of the negligence of the defendant (which is denied);

(c) denies that it is appropriate for the scope of the liability on the part of the negligent defendant (which is denied) to extend to the harm so caused pursuant to section 5D(1)(b) of Civil Liability Act 2002.

4 In response to the whole of the claim the defendant says that the plaintiff was at all relevant times a voluntary passenger in the vehicle driven by the defendant.

5 The plaintiff’s injury, loss and damage as alleged or at all are not admitted denied.

6 Further, in answer to the whole of the Statement of Claim, the defendant says that if the plaintiff suffered a loss or damage to the extent alleged or at all, which is not admitted denied, such loss or damage was due to the plaintiffs own negligence and there ought be no damages awarded, or in the alternative, any damages awarded to the plaintiff should be reduced accordingly.

Particulars of Contributory Negligence

(a) Travelling as a passenger in the defendant’s vehicle whilst the defendant was affected by drugs and unlicenced.

(b) Travelling as a passenger in the defendant’s vehicle whilst he knew or ought to have known, that the defendant was affected by drugs and unlicenced.

(c) Failing to request the defendant drive at a slower speed or in a manner that was not dangerous.

(d) Failing to take sufficient care for his own safety in the circumstances.

(e) Participating in an illegal act, namely taking Ice.

(f) The plaintiff knew or ought to have known the defendant’s ability to drive the motor vehicle was impaired as a consequent of her consumption of the following drugs:

(i) Delta-9-THC acid:

(ii) Cocaine:

(iii) Benzoylecgonine:

(iv) Amphetamine:

(v) Methylamphetamine.

(g) The defendant relies on sections 5R, 5S and section 49 of the Civil Liability Act 2002 as well as section 138 of the Motor Accidents Compensation Act 1999.

7. In response to the Statement of Claim and in response to the Statement of Particulars filed pursuant to UCPR Rule 15.2, the defendant relies on Section 83 of the Motor Accidents Compensation Act 1999 as a defence to the extent of any payments made for or on behalf of the plaintiff.

8. Notwithstanding those matters pleaded above, and in further response to the whole of the Statement of Claim, the Defendant denies she owed the plaintiff any duty of care as the Plaintiff and the Defendant were engaged in a joint illegal enterprise at all material times during the use or operation of the vehicle.

Particulars

The Defendant repeats paragraphs 6(a) to (f) above.”

Liability

The plaintiff’s evidence

46. The plaintiff stated that, at the time of the accident, he resided in Chester Hill with his wife, son and other family members. He said he came to Australia from Lebanon in 1974 and in 1980 returned to Lebanon. In 1993 he returned to Australia. At the date of the accident he was in receipt of Centrelink benefits.

47. The plaintiff, who is now 67 years of age, was unable to provide the Court with any recollection of the events of the accident. In respect of the plaintiff’s recollection of the accident, the following is recorded in the transcript during the plaintiff’s cross-examination:

“Q. And in fairness to you, the letter went on to say in the second sentence and I’ll read it to you. “Our client instructs us he has no further memory of events 6 September 2011 to 8 September 2011”?

A. INTERPRETER:  The first part, probably could be referring to what my son or my wife have informed me. They know more than I do because I don’t remember anything, not even before a minute‑‑“ (T 86)

48. When asked whether he was present when the defendant took illegal drugs, he responded:

“No. Not correct and I don’t remember.” (T 73 line 22)

49. The plaintiff was asked at T 73 - 74:

“Q. In the course of the journey before the accident, the driver, I want to put to you, was so badly affected by the drugs that she’d taken, she pulled over. Do you remember this?

A. INTERPRETER:  If that’s what she said she’s probably truthful, but I don’t remember.

Q. You were awake sufficiently, despite the drugs you’d taken, to ask if she was all right. Do you remember that?

A. INTERPRETER:  I have no answer for what you say.

Q. I want you to assume that the driver of the vehicle has admitted taking a number of drugs before the accident happened, and I’ll read it to you what she admits?

A. INTERPRETER:  In my opinion, don’t read it because I don’t remember anything. You are wasting time, the court’s time.

Q. You had had experience with drugs before this accident, hadn’t you?

A. INTERPRETER:  In your dreams.”

50. The plaintiff acknowledged the events of the accident as recounted by the defendant were “probably truthful” (see the above quote).

51. The plaintiff was asked in examination in chief to describe his relationship with the defendant and the plaintiff gave the following evidence:

“Q. Have you been told that the driver of the vehicle you were in, was someone called Peta, P‑E‑T‑A, Lee, L‑E‑E, Cossey, C‑O‑S‑S‑E‑Y?

A. WITNESS:  Yes, she was like family friend especially my son, they be in school together.

Q. And how did you know Ms Cossey?

A. WITNESS:  From a family and my son, my.

Q. Did she ever drive you anywhere?

A. WITNESS:  Yeah. Drive me, drive my wife, shopping” (T 11)

52. He went on to elaborate the relationship between himself and the defendant as follows:

“Q. Before the accident, what sort of things did you do with Ms Cossey?

A. WITNESS:  Who is Cossey?  Who is Cossey?

Q. Did you know her has [sic - as] Lee?

A. WITNESS:  Yeah, I don’t remember her name, Lee, she comes to our house, takes my Mrs shopping, take me doctor, take me places, my son helped our schedules stuff like that.” (T 12)

53. In cross-examination, the plaintiff was asked the extent of driving that the defendant undertook for the plaintiff:

“Q. And you’ve told his Honour that she used to take you and your wife shopping, is that right?

A. INTERPRETER:  She used to take me to doctor’s appointment but she take my wife shopping.

Q. What were the doctor’s appointments that she took you to?

GROSS: Are we talking about before the accident or after, sorry it’s a bit unclear your Honour.

DEAKIN: I’ll make it clear your Honour.

Q. You were talking about before this accident being taken to the doctor weren’t you?

A. INTERPRETER:  And my answer is before the accident.

Q. What were the doctors that she took you to?

A. INTERPRETER:  Dr Hanna for my diabetes.

Q. And how long had that gone on before the accident that Ms Cossey was taking you to the doctor?

A. INTERPRETER:  When I need if my son is busy, she will come and take.” (T 77)

54. However, when asked whether he was aware that the defendant did not hold a licence, he said:

“A. INTERPRETER:  How would I know she didn’t have a licence?  And every second day comes and drives how would they allow her to drive if she doesn’t have a licence.” (T 80)

55. The plaintiff denied knowledge of the defendant’s driving licence status:

“Q. And you knew before this accident Mr Raad, that she had never held a driver’s licence didn’t you?

INTERPRETER: Before the accident?

Q. Yes?

A. INTERPRETER:  How do you say these words that I don’t know that I know that she didn’t have a licence and every time she comes to our place, comes driving the car.

Q. Did you ever ask her about her driver’s licence?

A. INTERPRETER:  It’s not my business to ask her.” (T 78)

56. The plaintiff said he had never asked the defendant her age and did not know how old she was (T 78).

57. The plaintiff was further asked if he had experience with drugs at T 74:

“Q. Had you ever seen anyone affected by drugs before this accident?

A. INTERPRETER:  I don’t remember and I have no experience in these things.

Q. You were convicted, as I put to you yesterday, of having drugs in your possession, do you agree with that?

A. INTERPRETER:  I’ve already told him that my son and my solicitor pleaded guilty to finish the matter because some people told them to say that and this is all finished. With all these criminal offences, I was only in prison for two months, does that reflect that I’m a criminal?

Q. Do you agree that if the driver was seriously affected by drugs before this accident you should not have driven in the car with her?

A. INTERPRETER:  No‑one in my whole life can use drugs in front of me.”

58. The plaintiff was also unable to remember whether he owned the vehicle involved in the accident:

“Q. Do you recall that you were ‑ do you have any understanding who the owner of that vehicle was at the time of this accident?

A. INTERPRETER:  Go and ask the owner if I know or not.

Q. Do you recall a man by the name of Mr Greg Hayes from Birrong?

A. INTERPRETER:  I have many friends, but I don’t remember any of them.

Q. Do you remember that only a few days before this accident, you went with Peta‑Lee Cossey to purchase this vehicle, do you remember that?

A. INTERPRETER:  Me?

Q. Yes?

A. INTERPRETER:  I don’t remember anything I have cars, why would I buy a car, I don’t remember any of this.” (T 80 – 81)

59. As is demonstrated in Exhibit 14, the plaintiff had used vehicles extensively. He had a significant record of driving offences (Exhibit 14) and had owned more than 26 cars between 1994 and 2008 (Exhibit 14).

Constable Matthew Colefax

60. The plaintiff adduced evidence from Matthew Colefax, a constable in the New South Wales Police Force. Constable Colefax was an off-duty police officer at the time of the following events. He testified that at approximately 6am on 8 September 2011, he was driving north bound in Henry Lawson Drive when, approaching a gradual left hand curve, he observed the Ford travelling in the opposite direction in the southbound lane. He said the Ford was travelling “at speed towards me” (T 194), and was moving erratically. As the Ford came closer to his vehicle, it turned in the direction of his vehicle, and crossed into the northbound lane. Constable Colefax braked his vehicle and took evasive action by steering out of the Ford’s way. The following exchange occurred:

“Q. In terms of suddenness or gradual, how would you describe that movement out of its lane into your lane?

A. I’d call it sudden. I was ‑ it was shocking, I was scared, it caused me to have to take evasive action. I had to hit the brakes. The ABS in the car activated and I quickly, you know, tried to steer out of its way and ended up off to the side of the road, on the shoulder and then as I was doing that, that vehicle has then travelled back across ‑ through its lane and then off the other side of the road and into the house.”

61. Constable Colefax moved his vehicle to the shoulder of his laneway to avoid a collision. He saw the Ford swerve suddenly back to the other side of the road, across its southbound lane, and continue to the other side of the road. He heard the engine of the other car revving. It increased speed, “fishtailed”, then left the roadway.

62. Constable Colefax saw the Ford then travel across a grassed area, through a fence before it collided with a boat, then with a house which was located in close proximity to a creek.

63. Constable Colefax performed a U-turn and stopped his vehicle. He approached the Ford and saw that there was a female who had alighted from the car. Constable Colefax stated that the female, who was the driver, was calling out that she had killed the passenger.

64. Constable Colefax observed that the female driver (the defendant) was “quite manic. She may have been glassy eyed, she was sort of stumbling around, she was very incoherent and muttering” (T 200). He assessed her age as in her early 30s, and found it difficult to obtain responses to his questions which he asked of her. He recalled her saying, “I killed him, I’m going to gaol”. Constable Colefax observed that she was unsteady and described her walking as “pacing” and was repetitively making comments. Constable Colefax believed that the defendant had consumed drugs:

“Q. If you were to assume that she later admitted to taking methamphetamine, coke and marijuana, can you assist the Court as to whether her appearance and how she presented herself to you was consistent with her having consumed drugs of that kind?

A. It was consistent, and that’s why I told her to disclose it to the ambulance.” (T 201)

65. The defendant said to Constable Colefax words to the effect “is he going to die?” (T 198). Constable Colefax responded, “I don’t know, I’m trying to help” and “He looks like he’s on gear. Has he taken anything” (T 198). The defendant responded “He had some ice” (T 198).

66. The transcript records:

“Q. That’s what I wanted to ask you about. What was it that you observed of the passenger in the vehicle that caused you to ask the driver, “He looks like he’s on fear [sic - gear]. Has he taken anything?”?

A. I think I describe it ‑ if you don’t mind, I’ll just have a quick look, yeah, so I entered through the driver’s side of the vehicle and knelt on the driver’s seat and tried to talk to him and he was just sort of groaning. He had glazed eyes, they were sort of half open and I remember he had like a white sort of dry foaminess in the side of his mouth ‑ the corner of his mouth, sort of like ‑ they call it cotton mouth, you see it with people who have taken drugs and that sort of stuff and I‑‑

Q. It was an observation that you have in your experience seen with people who have taken drugs, that they’ve got some cotton mouth appearance?

A. Yes. And in conjunction with the other ‑ the way that he presented, I thought it might be that he was drug affected.

Q. And that’s why you asked the question?

A. Yes.

Q. And she gave you the answer that is recorded and that it had occurred as she told you while they were driving in the vehicle?  You’ll see that in the middle of the page?

A. Yes.” (T 198-199)

67. Constable Colefax then entered the Ford through the driver’s side and knelt on the driver’s seat to talk to the male passenger. He observed that the passenger had glazed eyes and had a “white sort of dry foam in this in the side of his mouth – the corner of his mouth, sort of like – they call it cotton mouth, you see it with people have taken drugs and that sort of stuff and I…”

68. Constable Colefax had had experience with people having taken drugs. Constable Colefax said:

“He had glazed eyes, they were sort of half open and I remember he had like a white sort of dry foaminess in the side of his mouth ‑ the corner of his mouth, sort of like ‑ they call it cotton mouth, you see it with people who have taken drugs and that sort of stuff and I‑‑

Q. It was an observation that you have in your experience seen with people who have taken drugs, that they’ve got some cotton mouth appearance?

A. Yes. And in conjunction with the other ‑ the way that he presented, I thought it might be that he was drug affected.

Q. And that’s why you asked the question?

A. Yes.

Q. And she gave you the answer that is recorded and that it had occurred as she told you while they were driving in the vehicle?  You’ll see that in the middle of the page?

A. Yes.” (T 199)

69. Constable Colefax reiterated that he had experience in motor accidents involving drugs. He stated:

“Q. You noticed, and you made a note of the fact, that you observed white froth at the edges of the passenger’s mouth?

A. Mm.

Q. What did that indicate to you?

A. In terms of an indication, just ‑ that in conjunction with his eyes and appearance and the way ‑ I thought he was affected by drugs, and that’s consistent with that. That’s why I asked her what I asked her about. I’ve been to a lot of car crashes and they appeared different to people, obviously people react differently but they appeared drug affected to me.” (T 203)

The defendant’s evidence

70. The defendant testified reluctantly. It was necessary for an arrest warrant to be issued to secure her appearance in court. The defendant stated that she was born on 9 December 1989 and was 21 years of age at the date of the accident. She confirmed that she was the driver of the Ford involved in the collision. As the defendant was to provide evidence that she participated in offences, the court made an order on 20 August 2018 under s 128 of the Evidence Act 1995 (NSW) that no portion of her evidence could be used against her in other proceedings.

71. The defendant testified that she had personal dealings with the plaintiff (“Raad”) and had used drugs with him, “a couple of times a week, sometimes I would be in his company for a couple of days” (T 211). She said that she would take drugs with him, generally methamphetamine, otherwise known as “Ice” (T 212). She said that she was a “pretty heavy user” at about the time of the accident. She said she did not take heroine but smoked marijuana. She had taken cocaine and occasionally ecstasy pills, but very rarely (T 212).

72. The defendant said that during the days prior to the accident, Raad was with her for some of the time, that she had not slept for about a week, that in the 24 hour period before the accident occurred she had smoked a fair bit of ice and cocaine, which Raad had received from a supplier (“the supplier”) who resided in close proximity to The Grandstand Hotel at Warwick Farm (“the hotel”).

73. On the evening of 7 September 2011, the defendant obtained a room at the hotel, and said that she knew she needed to sleep. The defendant gave the following evidence in chief concerning the events at the hotel:

“Q. When were you at The Grandstand Hotel at Warwick Farm on the evening before this accident?

A. I couldn't tell you exactly what time I checked into The Grandstand but it was the first time I had run into any sort of money and I needed to go to bed. I knew I needed to sleep. I got the room at The Grandstand and that's when Raad had rang while I was there. He came to The Grandstand. One of my friends had rung and she was having some difficulties. Her and her partner come to The Grandstand and they started arguing. I couldn't handle it, I just needed to sleep. So he said, "Okay, well, I will go fishing and you can sleep."” (T 213)

74. The defendant said that, at the hotel, she and Raad “had smoked a couple of pipes, meaning ice, a couple of lines of coke which he had actually gotten from the guy [the supplier]” (T 214).

75. The defendant said she and Raad shared the drugs from the early hours of the morning. The sharing took place over more than an hour. The following exchange occurred at T 214:

“Q. Again, as best you can; was it an hour, less than an hour, more than an hour that you shared drugs with him‑‑

A. More than an hour.” (T 214)

76. In cross-examination, the defendant stated that she had been in the company of Raad for “a couple of hours” at the hotel (T 235).

77. The defendant also said that she had frequently consumed drugs with Raad. In cross-examination, the defendant gave the following evidence:

“Q. How long before the accident did you first take drugs in that hotel room?

A. I don’t know, I had taken drugs since I was probably about 14 every single day so I couldn’t tell you how long that was. But when something horrible happens to you and you relive it, you don’t forget it or forgive yourself.

Q. What drugs do you say Mr Raad took in that hotel room?

A. Ice with me.

Q. Sorry?

A. Ice with me.” (T 237)

78. Early the next morning, Raad and the defendant left the hotel. According to the defendant, Raad intended to go fishing at a boatshed at Revesby River (T 227). The defendant was asked questions concerning her driving of the Ford.

79. The defendant said that Raad was disqualified from driving and that she held an expired learner’s permit. She testified:

“Q. Can I take you back to the motor vehicle?  You did mention that he came to the hotel, how did he get to the hotel, do you know?

A. He drove.

Q. What was the car that he drove?

A. White Ford Falcon.

Q. What happened at the hotel as far as driving is concerned?

A. He was disqualified, I was on an expired learners permit, it was less ‑ I would get in less trouble than what he would have gotten in drive so I drove.

Q. Did he ask you to drive?  Did you offer to drive?  What happened as far as you doing the driving?

A. It is just how it went. He had been disqualified for a while and it wasn’t the first time. Any time I saw him, I drove, so he wouldn’t get in trouble.

Q. So what you are saying to his Honour is this is not the first occasion when you had driven him in a motor vehicle before this accident?

A. No.

Q. What were the occasions prior to this evening when you drove him in a motor vehicle?

A. I drove him to rock Dale [sic - Rockdale] quite frequently for drugs.

Q. Where else did you drive him before this accident?

A. Anywhere he asked me to. Any time he needed to get drugs, I drove him.” (T 214 – 215)

80. In cross-examination, the defendant gave evidence of the plaintiff’s knowledge of her unlicensed status:

“Q. You have mentioned your licence and forgive me if I am duplicating this; you had an expired learners permit and no other licence, that is correct, isn’t it?

A. No other licence.

Q. Had the topic of your licence ever come up for discussion between yourself and Mr Raad before the accident?

A. Yes.

Q. What was said about that?

A. “You are disqualified, I am expired, I would have got in less trouble.”“ (T 218)

81. The defendant gave evidence that she was with Raad when Raad purchased the Ford (which was driven by the defendant and involved in the accident) from a man (full name redacted) at Birrong (T 215):

“Q. How long before this accident was it that you were at Birrong with a man who you knew as Greg?

A. I had been there a couple of times with Raad prior to the accident and prior to him buying the car.”

82. The defendant could not recollect when the Ford was purchased, but stated:

“I had been to Greg’s house for a space of over maybe two, two to three weeks with Raad on several occasions before the accident.” (T 216)

83. The defendant was asked questions concerning the accident. The defendant said that after leaving the hotel she drove the Ford but she stopped the vehicle about five minutes before the accident. She testified:

“A. I pulled off North paragraph [sic - Telegraph] Road onto Henry Lawson drive just after the set of lights and got out and lent [sic - leant] against the bonnet.

Q. Take it slowly. You got out and you lent [sic - leant] against the bonnet?

A. He asked me if I was okay and I said, “I shouldn’t be driving. I really shouldn’t be driving. I need to go to sleep.” “Five more minutes Peta [referring to the plaintiff], we are nearly there”

Q. That is a quotation of what he said to you?

A. Yep.

Q. What did you say to that?

A. I looked at him and all I thought was “I just need to go to sleep”, I got back in the car and continued

Q. At that point, can you assist his Honour about how far is that from where you run off the road?

A. Five minutes literally.” (T 219)

84. The defendant described her condition when she stopped the vehicle and leant against the bonnet as follows:

“A. I was all over the shop. I couldn’t stand up straight. I couldn’t talk. Anything I was saying wasn’t making sense. You would have taken one look at me and said I was completely psycho or I was absolutely out of it.

Q. In terms of what you are saying, were you making any sense at all?

A. No.

Q. In terms of your balance or your steadiness on your feet, what was the position?

A. I had to lean against the bonnet of the car to be able to stand up.

Q. In terms of your manner of speech to the extent you were saying any words, was it clear and articulate or something else?

A. No, it was slurred, it was snappy, it was all over the shop”.

85. The defendant testified that she found small satchels of ice and cocaine in the Ford after the collision. She said:

“Q. What was in the car by the time it came to rest?

A. There was small satchels, a few of them, satchels of ice and cocaine. Once the car come to rest Raad wouldn’t wake up. I emptied his shirt pocket and they were all over the floor and put them into my wallet.

Q. Why did you do that?

A. So he didn’t get into trouble.” (T 219 – 220)

86. The defendant agreed that she told Constable Colefax that she had taken ice. The defendant also acknowledged that the cocaine found in her wallet was owned by Raad. The defendant had removed the drugs from Raad’s shirt pocket immediately after the accident. The defendant said in cross-examination:

“Q. Could I ask this:  why did you put the cocaine into your wallet?

A. Because that’s me. I considered him family. I thought I had nearly killed him. I didn’t want anything to help to [sic – harm] him when he woke up. He was like the father I didn’t have back then.

Q. Did you put the cocaine into your wallet so that you could use it?

A. Well, it wasn’t to look at. I was a drug addict back then, of course it wasn’t to look at.

Q. Did you put it in your wallet in order to hide it from the police?

A. I put it in my wallet because I didn’t want him to get in trouble. Like I said, he was like a father back then.

Q. Where did you put your wallet?

A. I don’t know.

HIS HONOUR

Q. You said he was like a father back then; how did you come to meet Mr Raad?

A. Through a mutual friend of ours.

Q. Had he supplied you with drugs?

A. He helped me get them on an occasion.” (T 238)

87. The quantity of cocaine found in the defendant’s wallet were the property of the plaintiff. The following is the evidence on ownership of the drugs:

“Q. Now, whose drugs were they?

A. Raad’s. They were the drugs that he had taken from the man that was two doors down or whatever it was at The Grandstand Hotel.” (T 220)

88. The defendant said that she had consumed alcohol before driving the vehicle involved in the collision and had thrown a “can of bourbon out the window just before I pulled over” (T 221).

89. In cross-examination, it was suggested that the defendant was attempting to damage Raad’s case:

“Q. Are you trying to, in effect, damage Mr Raad’s case by giving false evidence here?

A. No. I left his life style behind. I am a mother. I live with this accident. I went bankrupt over this accident. I lost my life over it. I copped his charges, now for him to be suing for his injuries?  There is a lot more I could say but I wouldn’t.” (T 228)

90. The defendant replied that she had left Sydney and “left my past as my past, behind me, and I don’t have any intention of throwing myself under a bus” (T 223).

91. In cross-examination, it was suggested to the defendant that she had provided inconsistent answers to an NRMA investigator. In response, the defendant said:

“Q. What did you tell the investigator was said when you stopped the car and got out of the car?

A. Exact same answer I just gave you. I don’t remember what I had said to the NRMA investigator. Since I came up here I have tried this thing called honesty, Raad should try it. He might get a bit further. I looked up to him.

Q. So the statement to the investigator, when was that statement made?

A. I don’t remember. It was once I had moved out of Sydney which was after 2013 ‑ October 2013, to be exact.

Q. Was the statement made last year?

A. I don’t recall, I don’t remember when he was there.

Q. At the time when you saw the investigator what was your memory like of events?

A. My memory of events?  The only thing I actually remember about the conversation was what the ‑ excuse my language ‑ what the fuck do I do?  That was all I could think.

Q. Why were you asking yourself that question?

A. Because if I be honest in that world there is repercussions.

Q. Did you tell the investigator the truth?

A. I don’t know what I told the investigator so I can’t answer that. You can ask me that question a million times, you are going to get the same answer.

Q. Is it quite possible that you told the investigator lies?

A. If I see what I actually said to him I will tell you exactly what I lied about. I would like this to end. It is a big enough nightmare.

Q. You have been convicted of offences of dishonesty in the past?

A. Dishonesty?

Q. Yes

A. I’ve been convicted of drug offences, driving offences, I have never been charged with being dishonest” (T 232)

92. The defendant acknowledged that the statement she provided to the police on 3 November 2011 was “not 100% correct”; and that she had, in the past, lied to the police. The following exchanged occurred:

“Q. Did you then tell the police officer, “I do remember at one stage I had pulled over the car”?

A. Yes.

Q. Was that correct?

A. Yes.

Q. Then you added, “Raad, my passenger, had asked me if I was okay, and I said, ‘yes’.”  Is that correct?

A. No, it’s not correct, but that’s what I said.” (T 224)

93. Other discrepancies in her statement were put to the defendant, namely in respect of her driving ability but she confirmed that the following conversation occurred when she stopped the vehicle:

“Q. Is that what in fact occurred, yes, did that conversation take place?

A. No, not exactly that way. The conversation that actually occurred was, I pulled over, I got out, leant against the bonnet, his exact words were, “Are you okay, habubib?”  That replays in my head every day?

HIS HONOUR

Q. Are you okay?

A. Habubib, like darling girl.

GROSS

Q. I’m sorry, “Are you okay” what?

A. Habubib, darling girl.

Q. And you replied, “Yes”?

A. No. My actual response to him was, “No, I’m fucked.”  “Habubib, five minutes we’ll be at the boat shed.”

Q. What boat shed are you talking about?

A. Revesby, Revesby River.

Q. What was the ‑ were you driving to Revesby River?

A. We were.

Q. The boat shed?

A. Yes.

Q. For what purpose?

A. So he could fish and I could sleep.” (T 226 – 227)

94. The defendant was asked:

“Q. Having got out of the car did you feel capable of getting to the place where you going to drop him off?

A. No, I didn’t, or I wouldn’t have gotten out of the car and leaned against the bonnet, I would have just kept driving.” (T 229)

95. The following questions were put to the defendant:

“Q.  He asked you whether you were okay to drive, didn't he?

A.  He said, "Honey bee, are you okay?"

Q.  You said that you were okay to drive.

A.  No, that's what I had said in my statement.  I have just been over this with you.  That's what I said in my statement.  Him as the owner of the vehicle has a legal obligation to not allow me to drive knowing I am unlicensed or under the influence.” (T 230)

96. The defendant’s driving record contains entries of several defaults and confirms that on 29 August 2012 at Bankstown Local Court she was convicted of being an unlicensed driver on 8 September 2011, namely the date of the collision which is the subject of these proceedings.

97. The defendant stated that she had been found guilty at Bankstown Local Court on 29 August 2012 of having a quantity of prohibited drug namely 1.3 g of cocaine in her possession. The conviction resulted from drugs being found in the defendant’s wallet at the scene of the accident.

98. The plaintiff’s driving record has also been tendered. It confirms that on 26 June 2011 at Burwood Local Court the plaintiff was found to have driven whilst disqualified and on the same day was declared a habitual offender. The plaintiff had been previously declared a habitual offender on 2 December 2009, 6 June 2012, 28 March 2013 and 27 May 2015.

Certificate of Analyst

99. A Certificate by Analyst pursuant to the provisions of section 35(3) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) dated 21 October 2011 (Exhibit 9) identifies the following drugs which were found in the blood sample of the defendant:

1. Delta-9-THC acid – 0.072 mg/L;

2. Cocaine – 0.01 mg/L;

3. Benzoylecgonine – 0.43 mg/L;

4. Amphetamine – 0.04 mg/L;

5. Methamphetamine – 0.25 mg/L.

Evidence of Dr Perl

100. Dr Judith Perl, consultant pharmacologist, has provided a report dated 11 April 2015 (Exhibit 8, pp 20 - 40). Such report, admitted into evidence without objection, records that Dr Perl had been provided with the Police Report, transcript of a court hearing dated 29 August 2012 (date of conviction of defendant) and other records relating to the accident, including the NSW Ambulance Report.

101. Dr Perl stated that methylamphetamine is “a central nervous system stimulant which can impair driving ability by altering perceptions and judgement [sic] and increasing aggressive or risk-taking behaviour during the acute phase of intoxication. This drug can also produce hallucinations.” Such drug also “impairs visual scanning… for environmental stimuli and decreases the ability to filter out stimuli that are irrelevant to the task, as a result driving ability is impaired…” (Exhibit 8, p 23). Dr Perl also stated that “Methylamphetamine use is epidemiologically associated with increased traffic crash risk” (Exhibit 8, p 24).

100. Dr Perl states at paragraphs 7 to 13 (Exhibit 8, p 24):

“7. Methylamphetamine reaches a maximal blood concentration approximately 2.5 hours after consumption irrespective of the means of administration and the half-life of the drug is approximately 11 hours (de la Torre et al., 2004). The half-life of a drug is the time for the peak blood concentration to decrease by 50%.

8. The blood concentration of methylamphetamine detected in the Driver is well above the expected “therapeutic” levels of 0.01 to 0.05 mg/L and is around the toxic and potentially fatal range which has been reported as greater than 0.1 mg/L (mean 0.23 mg/L) (Stead & Moffat, 1983).

9. Low doses of methylamphetamine generally results in reduced appetite, increased alertness and energy, a general increase in activity and a sense of well-being. Low, therapeutic doses have been reported in some studies to increase alertness and therefore improve some psychomotor skills (Baselt, 2001), particularly in fatigued subjects. However, in some persons even therapeutic doses can produce restlessness, dizziness, insomnia, mild confusion or even panic states.

10. High doses of methylamphetamine generally produce extreme wakefulness, a rapid flow of ideas with attention jumping from one thing to another as if in a manic state, talkativeness, rapid speech, inability to concentrate, agitation, jerky movements, possible paranoia or hallucinations.

With high doses there are altered perceptions and judgement and increased aggressive or risk-taking behaviour during the acute phase of intoxication. There can also be hallucinations.

11. Epidemiological studies, which generally involve recreational methylamphetamine users or abusers of this drug, do indicate that methylamphetamine adversely affected the skills required for safe driving (Logan, 2002; Baselt 2001).

12. Typical behaviour displayed by methylamphetamine users in the acute stage after usage of recreational doses, include increased activity and alertness, talkativeness and restlessness. There will also be insomnia, a loss of appetite, increased blood pressure, pupil dilation and increased sweating. Higher doses can result in pallor, hypre-reflexia, the user can become submerged in a flood of thoughts and thoughts can jump from one thing to another as in a manic psychosis, there can be continually repetitive, purposeless movements, paranoia and hallucinations, although consciousness is usually clear.

13. Methylamphetamine is a potent central nervous system stimulant. The adverse effects of methylamphetamine increase with dose and frequency of dosing. They are commonly seen during a “run”, when the user ingests numerous doses of drug over several days during which the user remains hyperactive, stimulated, in a euphoric state characterised by rapid speech, often jerky movements, dilated pupils which are relatively unreactive to light, high energy, depressed appetite, tremors, increased agitation paranoia, apprehensiveness, confusion and occasionally hallucinations. A “run” usually ceases because the user becomes too disorganised and confused. This is then followed by a period of marked withdrawal during which there is extreme fatigue, exhaustion, sleepiness and depression.

Thus, the actions of methylamphetamine are biphasic in nature, with the acute affects caused by the stimulation of the CNS whereas the second phase is dominated by rebound fatigue and sedation (Gustavsen et al., 2006; Logan 2002). During this stage the driver may experience drowsiess/sleepiness/fatigue, a slowing of reactions and impairment of perceptions and judgement (Logan, 2002).”

103. Dr Perl continued to make the following observations at paragraphs 14 and 15 (Exhibit 8, pp 25 – 26):

“14. The reactive depressive phase is often referred to as the “comedown” or “crashing”. During this phase, there can be severe depression and suicidal tendencies associated with this withdrawal. Thus, the withdrawal is potentially dangerous and frequently results in more impairment of driving ability than the impairment due to acute stimulation particularly if the drug is used to delay the effects of fatigue due to lack of adequate sleep and rest.

In a state of increased fatigue or drowsiness, perceptions and judgement [sic] would be likely impaired, reactions would be slower and responses to an event such as the veering of an on-coming vehicle would most likely be slower.

15. Acute effects of methylamphetamine use frequently results in driving behaviours such as driving at an excessive speed, overtaking and aggressive and risk-taking behaviour.

Methylamphetamine withdrawal results in a drug-induced reactive depression of the central nervous system and generally results in driving behaviours associated with increased drowsiness or sedation such as deviating from the lane or weaving behaviour in additional to slower reactions.”

104. At paragraphs 28 and 29 of this report (Exhibit 8, pp 28 – 29), Dr Perl made the following observations about the defendant, which I note are consistent with the defendant’s evidence at trial:

“28. The Driver advised she used “hell of a lot” of drugs prior to the collision and 3-4 grams of methylamphetamine in the form of “ice” and 2 grams of cocaine is a much higher dose than the average recreational dose. This stated level of usage is consistent with her high methylamphetamine level and significant cocaine level.

She also stated that she pulled over before the collision because she felt affected by the drugs. She also indicated to Police that the Claimant had asked her if she was okay.

The Driver was seen to be driving at high speed, she veered from the road and hit the guard rail before overcorrecting and fish-tailing and then colliding with the fence.

29. Therefore, based on the blood results which are consistent with the heavy use of methylamphetamine and cocaine prior to the collision, based on her own subjective assessment that she felt affected and based on her manner of driving, I am of the opinion the Driver would have been very significantly impaired in her ability to drive. Given these factors she would have been in the acute stage of stimulation due to methylamphetamine and cocaine and she would most likely have been displaying the signs of acute intoxication due to these drugs.

Typical signs and behaviours displayed by stimulant users in the acute stage after usage of moderate to high doses, include increased activity and alertness, talkativeness, restlessness, pupil dilation, increased sweating, a euphoric stage characterised by rapid speech, often jerky movements, high energy, tremors and increased agitation.

These signs would have been available to the Claimant. In addition the manner of driving by the Driver should have also been noted by the Claimant. When she pulled over, the Driver states the Claimant asked her if she was alright, therefore, it appears he did consider there was something wrong.”

105. Dr Perl formed the following opinion:

“34. If the Claimant had used “ice” (methylamphetamine) prior to the collision then his cognitive and motor functions may have been impaired by the drug but this would depend on the dose used, when it was used and how often he uses it. If it is accepted that he asked the Driver if she was alright when she pulled over, then it is likely he was still in a position to consider that she may have been affected. Furthermore, if he did use methylamphetamine around the same time as the Driver (and she appeared to have been in the acute state of intoxication), then it is highly likely that he would have been asleep at the time of the collision (as indicated in his Claim Form and indicated to Dr Banks).

Summary of Opinion

35. In summary, the Driver would have been impaired by the acute effects of methylamphetamine and cocaine at the time of the collision. My opinion is based on the admissions of the Driver, the manner of driving witnessed and the blood levels of the drugs in the Driver. Given her manner of driving she would not have had proper control of the vehicle. I would also expect her to have displayed obvious signs of intoxication when she left the hotel where she allegedly used drugs. The expected signs of intoxication and the manner of driving would have been available cues to the Claimant in assessing the Driver’s ability to drive, especially if he did not use drugs as indicated by him.” (Exhibit 8, p 30)

106. Dr Perl provided a second report dated 26 July 2018 (Exhibit 8, pp 41 - 50). At paragraphs 2 – 8, Dr Perl opined:

“2. In Point 28, I noted the Driver advised she used a “hell of a lot” of drugs prior to the collision (she indicated to Police she used them around 3 hours prior to the collision), including 3-4 grams of “ice” (methylamphetamine) and 2 grams of cocaine. I also noted this alleged usage would be consistent with her blood concentrations of those drugs. Furthermore, the Driver admitted she pulled over because she felt affected by the drugs.

3. Therefore, given the Driver’s alleged use of the drugs and her alleged subjective effects of intoxication (she indicated she could walk but she was talking “absolute crap” and she was in another world – effects which are consistent with excessive stimulant use), I would also expect the Driver to have displayed signs and symptoms prior to commencing to drive and during driving. These signs and symptoms would include increased activity and alertness/extreme wakefulness, a rapid flow of ideas with attention jumping from one thing to another as if in a manic state, talkativeness, rapid speech, inability to concentrate, agitation, jerky movements, pupil dilation, increased sweating, possible confusion, paranoia or hallucinations.

4. Not only would the Driver have displayed the signs and symptoms of intoxication due to methylamphetamine and cocaine, but her alleged manner of driving was also consistent with her degree of intoxication. Constable Matthew COLEFAX stated he was travelling on Henry Lawson Drive around 6 am when he saw the Driver travelling towards him. The vehicle driven by the Driver moved from the southbound lane into the northbound lane forcing him to take evasive action and then the Driver swerved back, fish-tailing across the kerb and crossing into a grassed reserve. The engine of the vehicle was heard to be revving harshly and the vehicle drifted sideways into a fence and collided with the property.

The observed manner of driving by the Driver, is consistent with the expected impairing effects of stimulant drugs such as methylamphetamine and cocaine in the acute stage of intoxication when manner of driving is likely to include driving at an excessive speed, overtaking and aggressive and risk-taking behaviour.

5. Assuming the Driver used the drugs about 3 hours prior to the collision, the peak effects of the stimulant drugs methylamphetamine and cocaine would have occurred within the 1-2 hour prior to the collision and around the time of the collision and with the passage of time over the next 4 hours after the collision, I would expect these signs to significantly diminish and the Driver would progressively appear to get more drowsy, sedated (sleepy in appearance).

6. I also indicated the expected signs and symptoms relating to various concentrations of cocaine in Points 19 and 20 (page 7) of my previous report.

Assuming she also used the cocaine around 3 hour prior to the collision, the effects of cocaine, which are very similar to those of methylamphetamine, would have increased the signs indicated above in Point 3 above.

7. I indicated in Point 27 of my previous report, that it is unlikely the Driver would have appeared affected or intoxicated due to her use of cannabis, given the alleged time of use and given the relative effects of the very significant methylamphetamine concentration combined with the effects of cocaine. The effects of the stimulants would have been far greater than any expected effects of cannabis.

8. As previously indicated, the signs and symptoms due to high dose methylamphetamine and cocaine use by the Driver would have been available to the Claimant. In addition the manner of driving by the Drive should have also been noted by the Claimant. When she allegedly pulled over due to her subjective feelings of intoxication, the Driver states the Claimant asked her if she was alright, therefore, it appears he did consider her state of intoxication.”

107. Dr Perl was not required for cross-examination.

SUBMISSIONS ON LIABILITY

The plaintiff’s submissions on liability

108. The plaintiff submitted that:

1. The defendant owed a duty of care to the plaintiff;

2. That there was a breach of that duty (s 5D Civil Liability Act 2002 (NSW));

3. There is no basis for the defendant to rely upon the provisions of ss 5B(1)(a) and 5B(1)(b) Civil Liability Act to avoid liability;

4. That with regard to contributory negligence, the facts must be given effect to:

1. When the vehicle driven by the defendant stopped, the defendant told Constable McSweeney as follows:

“I do remember at one stage I pulled over the car, Raad, my passenger has asked me if I was okay and I said “yes”.

2. The plaintiff also relied upon the fact that the defendant drove the car from the Grandstand Hotel for approximately 10 minutes without accident before she stopped the car, thereby demonstrating that she was capable of driving the car.

3. That s 5R(1) of the Civil Liability Act applies, and that for the purposes of s 5R(2) the standard of care required of the plaintiff is “that of a reasonable person in the position of that person”. Further, as to s 5B namely what risk the plaintiff knew or ought to have known and what a reasonable person in the plaintiff’s position would have done by precautions, is dependent upon the evidence.

4. The Court must take into account the provisions of s 138 of the Motor Accidents Compensation Act 1999 (NSW). The principal issue is whether the plaintiff was aware or ought to have been aware that the defendant’s ability to drive the vehicle was impaired as a consequence of the consumption of alcohol or another drug (s 138(2)(b)(ii)). The Court notes that the s 138 MACA refers to a plaintiff’s awareness whereas the defence relating to contributory negligence refers to the plaintiff’s knowledge, which is the test under s 5B Civil Liability Act. According to the Macquarie Dictionary definition of “knowledge”, it is to be equated to “the state of being cognisant or aware, as of a fact or circumstance.”

5. If, contrary to the above submissions the court considers that contributory negligence exists, the plaintiff submits that the maximum contribution by the plaintiff would be 10% having regard to the fact that:

1. the cause of the accident was the failure of the defendant to properly manage or control the vehicle so that it did not leave the road surface;

2. if the defendant’s intoxication by drugs caused or substantially contributed to the accident, such conduct constitutes criminal conduct in breach of the rules aimed at road safety;

3. that the defendant was able to tell the police that she was “all right” and that she may have been affected not only by tiredness but also by drugs, but did not confess that she was not fit to drive when the plaintiff specifically asked her the question whether she was able to drive following her stopping the vehicle en route to the destination;

4. that the defendant’s lawyers would be required to show unreasonable conduct by reference to the criteria in negligence contained in s 5B. However, the defendant revived herself and assured him that she was fit to drive;

5. that there is no evidence that the plaintiff was aware when he met the defendant at the hotel that other tiredness or drug consumption made her unable to drive;

6. that the risk that she would cause the vehicle to leave the roadway was not a risk which he knew or ought to have known under s 5B(1) and therefore he was entitled to treat the risk of injury from road collision as being insignificant within s 5B(1)(b); and

7. that he would be acting in accordance with the standard that a reasonable person in his position would have acted in accordance with s 5B(1)(c). The plaintiff was unable to determine the presence and extent of drugs in the defendant system, as revealed by the analysis certificate. The defendant had a greater capacity to be aware of such risks rather than the plaintiff.

6. In the plaintiff’s submissions dated 3 December 2021, the plaintiff revised the contribution of the plaintiff to a maximum of 15%. The plaintiff submits that the defendant has a high level of fault resulting from the lack of skills in driving and also from the breaches of the statutory provisions prohibiting driving under the influence of drugs and alcohol and the criminal provisions regarding consumption of illegal drugs. The plaintiff submits that the defendant’s failure was extreme. The plaintiff had “trusted the defendant to drive him the short distance of 20 minutes to where he would go fishing” (plaintiff’s submissions, paragraph 27).

7. The plaintiff relies upon the fact that the defendant was tired and that her fault was greater because “she should not have misinformed the plaintiff when he made the specific enquiry of her on this subject. She knew the extent and cause of her tiredness (i.e. no sleep for a week, but there is no evidence that he was told or knew of this)” (plaintiff’s submissions, paragraph 39)

8. The plaintiff submits that the drugs which “she admitted taking in his presence were all “uppers” (i.e. designed to increase alertness rather than induce sleep). The plaintiff was entitled to believe that her drug consumption would make her simply a more alert driver” (plaintiff’s submissions, paragraph 42).

9. The plaintiff submits that the risk that the defendant would go off the road was “not a risk of which he knew or ought to have known under s 5B(1). He was entitled to treat the risk of injury from a road collision as being insignificant within section 5B(1)(b), and he would be acting in accordance with how a reasonable person in his position would have acted in accordance with section 5B(1)(c)” (plaintiff’s submissions, paragraph 43).

10. As to the defendant’s evidence relevant to liability, the plaintiff refers to several extracts of the evidence which have already been referred to and submits that there is no scientific evidence, nor blood test taken, to suggest that the plaintiff was under the influence of any drugs; the fact that “the plaintiff may have been glassy eyed and something coming from his mouth is also consistent with a number of injuries that he may have sustained including a head injury as a result of the motor vehicle accident” (plaintiff’s submissions, paragraph 60).

11. The plaintiff submits that it was not a joint criminal enterprise, there was no complicity in the committing of the offences and the relevant statutory provisions are not applicable.

12. The plaintiff submits that the accident resulted not from drug related impairment but from the fact that the defendant was tired. The defendant said that she had not slept for a week and needed to sleep at the hotel.

109. The plaintiff initially relied upon the provisions of s 54 of the Civil Liability Act 2002 (NSW) which provides:

“54 Criminals not to be awarded damages

(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that--

(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and

(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).

Note: Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant’s conduct constitutes an offence.

“18 The determination of factual causation under s 5D(1)(a) is a statutory statement of the “but for” test of causation: the plaintiff would not have suffered the particular harm but for the defendant’s negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff’s harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm.

19 The division of the causal determination under the statute into the distinct elements of factual causation and scope of liability is in line with the recommendations in the Final Report of the Committee convened to review the law of negligence (“the Ipp Report”). The authors of the Ipp Report acknowledged their debt to Professor Stapleton’s analysis in this respect. The policy considerations that inform the judgment of whether legal responsibility should attach to the defendant’s conduct are the subject of the discrete “scope of liability” inquiry. In a case such as the present, the scope of liability determination presents little difficulty. If the appellant can prove factual causation, it is not in contention that it is appropriate that the scope of Woolworths’ liability extend to the harm that she suffered. In particular cases, the requirement to address scope of liability as a separate element may be thought to promote clearer articulation of the policy considerations that bear on the determination. Whether the statutory determination may produce a different conclusion to the conclusion yielded by the common law is not a question which is raised by the facts of this appeal.”

201. Since the element of s 5D(1)(a) has been conceded by the defendant, there must now be the inquiry whether it is appropriate for the scope of liability be extended to the harm allegedly caused.

202. In contrast to the circumstances in Strong, the finding of factual causation (s 5D(1)(a)) by the defendant does not readily lead to the conclusion that it is appropriate for the scope of the defendant’s liability to extend to the harm allegedly caused to the plaintiff (s 5D(1)(b)), for the reasons which follow. In the present case, there is a requirement for the Court to “address scope of liability as a separate element” which “may be thought to promote clearer articulation of the policy considerations that bear on the determination” (Strong at [19]). This is a normative consideration. At [14] of the decision of the High Court in Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19, the Court considered the scope of s 5D(1) and said, inter alia:

“14 … A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”

203. At [23] the Court said:

“23 In a novel case, however, s 5D(4) makes it incumbent on a court answering the normative question posed by s 5D(1)(b) explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to “the purposes and policy of the relevant part of the law”. Language of “directness”, “reality”, “effectiveness” or “proximity” will rarely be adequate to that task. Resort to “common sense” will ordinarily be of limited utility unless the perceptions or experience informing the sense that is common can be unpacked and explained.” (Footnote omitted)

204. The Court stated the interrelationship between the common law and the legislation as follows at [26]:

“26 Within that limiting principle of the common law, the scope of liability for the consequences of negligence is often coextensive with the content of the duty of the negligent party that has been breached. That is because the policy of the law in imposing the duty on the negligent party will ordinarily be furthered by holding the negligent party liable for all harm that occurs in fact if that harm would not have occurred but for breach of that duty and if the harm was of a kind the risk of which it was the duty of the negligent party to use reasonable care and skill to avoid. However, the scope of liability in negligence is not always so coextensive: “[t]he scope of liability for negligence finds its genesis but not its exhaustive definition in the formulation of the duty of care”. That is in part because the elements of duty and causation of damage in the wrong of negligence serve different functions (the former imposing a forward-looking rule of conduct; the latter imposing a backward-looking attribution of responsibility for breach of the rule) with the result that the policy considerations informing each may be different. It is in part because the policy considerations that inform the imposition of a particular duty, or a particular aspect of a duty, may operate to deny liability for particular harm that is caused by a particular breach of that duty.” (Footnotes omitted)

205. I set out the plaintiff’s submissions on s 5D in its entirety:

“There is no real dispute on the defendant’s behalf that if there was a duty of care the defendant’s negligence involved breach of that duty of care and resulted factually in the plaintiff being injured. There is no reasonable basis for the defendant to succeed under either limb of the causation provisions in section 5D of the Civil Liability Act 2002 (NSW).” (Plaintiff’s submissions, 3 December 2021 at paragraph 23)

206. This submission overlooks the fact that the onus of proof rests on the plaintiff to establish that it is appropriate to extend the scope of liability to the harm suffered by the plaintiff. In Wallace v Kam at [23], the High Court referred to a Court’s task as being “the identification and articulation of an evaluative judgment by reference to “the purposes and policy of the relevant part of the law”“.

207. The defendant submits the following in relation to s 5D(1)(b) (having conceded s 5D(1)(a)):

“54. In the present case the Defendant firstly invokes the same factors as earlier set out in respect of the illegal activity in which the parties were engaged, to support the conclusion that the scope of the Defendant’s liability should not extend to the damages claimed by the Plaintiff in this case.

55. The purpose and policy of the legislation is to prevent those drivers who are clearly affected by the drugs they have consumed from driving the vehicle. In doing so they pose a heightened risk of being involved in an accident arising from their inability to control their vehicle, combined with the risk-taking behaviour that accompanies the consumption of such drugs.

56. The Defendant submits that even if the relationship between the parties was not so tainted with illegality to exclude a duty of care, the scope of the Defendant’s liability as the driver should not extend to the entirely predictable consequences of the extensive quantity of illegal drugs consumed by the Defendant in the presence of the Plaintiff before he accompanied her as a passenger in the vehicle.

57. As a matter of policy, the scope of the Defendant’s liability to the Plaintiff should not extend to the harm he suffered.

58. He knew or at the very least ought to have known that her ability to manage the vehicle as an unlicensed driver was severely impaired and likely to result in her losing control of the vehicle.

59. Even if he could not come to any reliable conclusion about the matter before she stopped the vehicle, it must have been obvious to him, once she alighted from the vehicle shortly before the accident, yet it was the Plaintiff who insisted on the Defendant continuing to drive.”

208. Leaving aside any wrongdoing on the part of the plaintiff, the Court is satisfied that, having accepted that the defendant was negligent in the driving of the vehicle, it would be contrary to policy to find that the scope of the defendant’s liability extended to the plaintiff’s alleged harm for the reason that the plaintiff’s vehicle was driven by the defendant when he knew or ought to have known that the defendant was drug affected, was unlicensed and was urged to drive by the plaintiff when the defendant indicated that she was unfit to drive. Given these factors, it is not appropriate and contrary to public policy to extend the scope of liability when the plaintiff voluntarily became a passenger in full knowledge of the defendant’s condition.

209. The Court’s conclusion is reinforced by the fact that shortly before the accident occurred, the plaintiff had been engaged in illegal conduct in drug supply to the defendant, consumption of drugs with the defendant and the plaintiff’s own drug consumption within the vehicle prior to the accident. It was the plaintiff’s illegal conduct which initiated the train of events which led to the accident. In these circumstances, it will be contrary to policy for the Court to enable the plaintiff to be recompensed for any alleged injury.

210. Accordingly, this defence is upheld because s 5D(1)(b) has not been proved by the plaintiff on the balance of probabilities.

Alternative defence – Contributory negligence

211. The defendant relies on the particular of contributory negligence as set out above that the defendant was unlicensed and had consumed drugs shortly before the defendant commenced to drive the plaintiff’s vehicle.

212. In the Third Further Amended Defence, the defendant has pleaded the provisions of ss 5R, 5S and 49 of the Civil Liability Act 2002 (NSW). I set these provisions out in full as follows:

“5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose—

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

49 Effect of intoxication on duty and standard of care

(1) The following principles apply in connection with the effect that a person’s intoxication has on the duty and standard of care that the person is owed—

(a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated,

(b) a person is not owed a duty of care merely because the person is intoxicated,

(c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.

(2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision.”

213. The defendant also pleaded s 138 of the Motor Accidents Compensation Act 1999 (NSW), which provides:

“138 Contributory negligence – generally

(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.

(2) A finding of contributory negligence must be made in the following cases—

(a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident,

(b) where—

(i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and

(ii) 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 injured person or the deceased person was aware, or ought to have been aware, of the impairment,

unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle,

(c) where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seat belt when required by law to do so,

(d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so.

(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(4) The court must state its reasons for determining the particular percentage.

(5) For the purposes of this Act, a deceased person is taken to have been convicted of an offence if any circumstances exist in respect of the deceased person which, but for the deceased person’s death, would have resulted in the conviction of the deceased person for the offence or the proving of the offence against the deceased person.

(6) This section does not exclude any other ground on which a finding of contributory negligence may be made.

(7) For the purposes of this section, an “alcohol or other drug-related offence” is—

(a) an offence of driving a motor vehicle with a particular concentration of alcohol or other drug in the person’s breath or blood, or

(b) an offence of driving a motor vehicle under the influence of alcohol or other drug, or

(c) an offence of causing death or injury while driving a motor vehicle under the influence of alcohol or other drug, or

(d) an offence, in connection with the driving of a motor vehicle, of—

(i) refusing or failing to submit to breath analysis, to undergo a breath test, to submit to an assessment of sobriety or to provide samples of the person’s blood and urine, or

(ii) wilfully altering the concentration of alcohol or other drug in the person’s breath or blood, or

(iii) preventing a sample of the person’s blood from being taken for analysis.”

214. In the event that the Court should be found to have erred in its application of the principles in relation to the above defences, the Court provides its findings concerning contributory negligence alleged by the defendant.

215. The assessment of contributory negligence is governed by Part 1A, Div 8 of the CLA (see ss 3B(1)(e), 3B(1)(e1) and (2)(a)) in which, relevantly, ss 5R and 5S are found.

216. Section 5R of the CLA requires the Court, when considering whether the plaintiff has contributed to his injuries, to apply the same principles in determining whether the defendant was negligent resulting in harm to the plaintiff. The standard to be applied to the conduct of the plaintiff is that of a reasonable person in the position of that person (s 5R(2)(a)) and the matter must be determined on the basis of what the plaintiff knew or ought to have known at the time (s 5R(2)(b)).

217. The Court finds that, applying the provisions of s 5R(2) of the CLA, the plaintiff’s conduct falls within s 138(2)(b) Motor Accidents Compensation Act 1999 (NSW) because:

1. The plaintiff was a voluntary passenger in the vehicle and initiated the journey by allowing the defendant to drive his vehicle, with whom he shared drugs with earlier over a period of two hours.

2. The plaintiff permitted the defendant to drive his vehicle knowing she was unlicensed and that she had consumed drugs immediately prior to driving;

3. The plaintiff was aware, or ought to have been aware, of the defendant’s impairment to drive the vehicle at the beginning of the journey in consequence of the defendant’s consumption of drugs with the plaintiff.

4. After the defendant stopped the vehicle indicating to the plaintiff that she could no longer drive, the plaintiff urged her to resume driving knowing she was not in a fit state to do so. At this point in time, not only should the plaintiff had been aware or ought to have been aware, he knew of her impairment to resume driving.

5. There is no basis to suggest that the plaintiff could not reasonably be expected to have declined to become a passenger in the motor vehicle when the defendant resumed driving. In this regard, I make the following alternative findings:

1. If I accept the plaintiff’s submission that the plaintiff was never in the hotel and did not consume drugs on the night of the accident, the plaintiff would have had the opportunity to observe the defendant’s fitness to drive prior to the commencement of the journey. Further, if I accept Mr Jobson’s submission that the plaintiff had no reason to doubt the defendant’s fitness to drive the motor vehicle prior to the commencement of the journey, the plaintiff was made acutely aware of the defendant’s unfitness to drive after the defendant stopped the vehicle. The plaintiff could have declined to become a passenger at that point in time, but instead urged the defendant to resume driving.

2. As I have found in my fact findings above, the plaintiff supplied drugs to the defendant and, further plied her with drugs and consumed drugs with her over a two hour period in the hotel room. The ability of the defendant to drive the car safely, irrespective of her tiredness, must have been impaired. The plaintiff must have known, or at least ought to have been aware, of the risks of travelling in a vehicle being driven by the defendant. The plaintiff went on to permit the defendant to drive his vehicle and continued to consume drugs whilst travelling in the vehicle. Despite the defendant having clearly conveyed to the plaintiff that she could no longer drive and that she was “fucked”, the plaintiff urged her to continue driving. There is nothing in this scenario which could suggest that the plaintiff could not reasonably be expected to have declined to become a passenger in the motor vehicle.

218. The Court is accordingly required to form its own assessment of contributory negligence which it considers appropriate in the circumstances. In doing so it must be guided by the principles referred to by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494. In summary, the court must undertake a comparison of culpability, that is assessing the degree of departure from the standard of care of a reasonable man, and of the importance of such acts in causing the damage.

219. In Joslyn, McHugh J at [35] – [38] said, inter alia:

“35 … But otherwise the plaintiff is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused the plaintiff’s injury or damage. No exception should or could in principle be made in the case of the passenger accepting a lift from an intoxicated driver.

36 It is true that the reasoning in some decisions concerned with a passenger accepting a lift with an intoxicated driver appears to suggest that this class of case, like those concerned with children, is another exception to the general rule that the test for contributory negligence is an objective test. But, in principle, intoxicated drivers cannot be an exception to the general rule. Cases like Banovic v Perkovic, Nominal Defendant v Saunders and McPherson v Whitfield cannot be followed in so far as they hold or suggest that a passenger is guilty of contributory negligence in accepting a lift from an intoxicated driver only if the passenger knew, or was aware of signs indicating, that the driver was intoxicated. In my view, the law on this subject was correctly stated by Cooper J in Morton v Knight and by Clarke JA in McGuire v Government Insurance Office (NSW).

37 The issue in a case like the present is not whether the passenger ought reasonably to have known of the driver’s intoxication from the facts and circumstances known to the passenger. The relevant facts and circumstances include those which a reasonable person could have known by observation, inquiry or otherwise. In cases of contributory negligence outside the field of intoxicated passengers and drivers, the courts take into account as a matter of course those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care. In Morton, Cooper J relied, correctly in my opinion, on the reasoning in the judgments of this Court in O’Neill v Chisholm and held that the relevant facts and circumstances included those which a reasonable person would have ascertained. The test applied by all members of the Court in O’Neill, including Walsh and Gibbs JJ who found no contributory negligence, was whether the passenger ought to have realised that alcohol had impaired the driver’s capacity to drive.

38 Hence, the issue is not whether a reasonable person in the intoxicated passenger’s condition - if there could be such a person - would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person - a sober person - would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.” (Footnotes omitted)

220. The whole conduct of each negligent party must be subjected to comparative examination. In the present circumstances, the plaintiff knew of the consumption of drugs by himself and of the defendant at the hotel and the fact that the defendant was unlicensed. The plaintiff willingly entered the Ford and allowed the defendant to drive from the hotel. As Dr Perl set out at paragraph 8 of her second report, signs of the defendant’s intoxication were available to the plaintiff prior to their journey. Further, when the defendant stopped the vehicle during the journey, he was sufficiently aware of her condition because he asked her the question, “Are you okay, habubib?” He then urged her to continue to drive despite her condition. Accordingly, I find that the plaintiff was aware of the impaired state of the defendant, yet he participated in the journey.

221. Any submission that the plaintiff was impaired to the extent that he could not understand any inability of the defendant to drive is, in these circumstances, rejected. Further, I apply the observations of McHugh J in Joslyn at [39] when his Honour said:

“39. … a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained. … Similarly, the fact that the passenger’s intoxicated condition prevents him or her from perceiving the risks attendant on driving with an intoxicated driver does not absolve the passenger from complying with the standard of care required of an ordinary reasonable person…”

222. Whilst the plaintiff asserts that the accident resulted from the defendant’s tiredness, which was something beyond his knowledge, there is no evidence that the defendant’s tiredness is the dominant cause of the accident. The evidence of Dr Perl establishes that the defendant had consumed methylamphetamine to a potentially fatal range (paragraph 8 of Dr Perl’s report) and that a “run” of drugs is usually followed by a period of marked withdrawal “during which there is extreme fatigue, exhaustion, sleepiness and depression”. On the balance of probabilities, the accident resulted from the effects of drugs supplied by the plaintiff and consumed by the defendant.

Assessment of contributory negligence

223. In Williams v Government Insurance Office of New South Wales (1995) 21 MVR 148, the New South Wales Court of Appeal by majority found that a plaintiff who sustained injuries in a motor vehicle as a passenger, knowing that the driver had consumed alcohol and held only a learner’s permit, should have damages reduced by 80% for contributory negligence. Both the driver and the appellant were affected by alcohol.

224. In Nominal Defendant v Green; NominalDefendant v Golding; Nominal Defendant v Campbell [2013] NSWCA 219 (“Green”), the Court of Appeal held an apportionment of 80% contribution by an injured passenger should not be set aside. Although the primary cause of the damage was the carelessness of the driver, the Court of Appeal examined the culpability of the injured plaintiff as follows:

“However this submission is attended by two separate difficulties. First, it elides causation and culpability. Culpability is the measure of departure from an appropriate standard of care and may be viewed separately from the causal link between carelessness and harm. Secondly, the comparison between the culpability of the driver and that an injured plaintiff is problematic and highly fact specific.… An apportionment which is “just and equitable” requires the weighing of the culpability of each plaintiff as against that of the negligent driver and an assessment of the causative contribution of the lack of care of each.”

225. Section 138(4) of the MACA requires the Court to state its reasons for determining the percentage of contributory negligence. Applying the principles in Green, the Court is required to assessment “an apportionment which is “just and equitable””, which “requires the weighing of the culpability of each plaintiff as against that of the negligent driver and an assessment of the causative contribution of the lack of care of each”.

226. The test for contributory negligence is an objective test. In Nominal Defendant v Meakes [2012] NSWCA 66, Sackville AJA (with whom McColl JA agreed) observed at [79] – [80]:

“79 The common law and the enacted law of contributory negligence apply to an award of damages in respect of a motor accident, subject to presently irrelevant exceptions: MAC Act, s 138(1). The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case: s 138(3); Law Reform (Miscellaneous Provisions) Act 1965, s 9(1)(b). The Court must state its reasons for determining a particular percentage: s 138(4). The enacted law of contributory negligence includes s 5R of the Civil Liability Act 2002 (“CL Act”).

80 The test of contributory negligence is objective: the question is whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Joslyn v Berryman [2003] HCA 34; 214 CLR 552, at 564-566 [32], [34], [38], per McHugh J; CL Act, s 5R(2). Once contributory negligence is found, the apportionment as between a plaintiff and defendant:

“of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, at 532-535, per curiam.”

227. The Court considers that the culpability of the plaintiff was high. In addition to his knowledge that the plaintiff had consumed drugs over a substantial period; had supplied her with drugs in the hours before her driving; and knew that she had no licence to drive, the plaintiff was negligent to a high degree in travelling in the vehicle as a passenger knowing all the circumstances; the plaintiff urged the defendant to resume driving after the defendant stopped the car and informed him that she was incapable of driving.

228. The plaintiff initiated the idea of embarking on a fishing trip and asked the defendant to accompany him on such trip. The plaintiff was aware of the unlicensed status of the defendant, and the fact that she had consumed drugs. Nevertheless, the plaintiff voluntarily became a passenger in the vehicle, thereby assuming the risk that the defendant might drive negligently.

229. In the circumstances the court notes the defendant’s claim that contributory negligence should be 100%. However, such claim ignores the fact that the defendant was in part to blame for the accident, as she was the driver albeit unqualified to drive and under the influence of drugs. The Court finds that the following considerations warrant apportionment of 70% contributory negligence on the part of the plaintiff:

1. The plaintiff knew that the defendant did not have a driver’s licence;

2. The plaintiff allowed the unlicensed driver to drive his vehicle;

3. The plaintiff was aware or ought to have aware that the defendant was intoxicated by drugs;

4. The defendant had made it plain to the plaintiff that she was not capable of driving after stopping the plaintiff’s vehicle during the journey;

5. The plaintiff urged the defendant to continue to drive after it was conveyed to him that she was under an impairment to drive.

Conclusion

230. In view of the above findings, I give judgment for the defendant against the plaintiff.

General observations

231. The Court is mindful that there is a MAS assessment pending.

232. In the event that the parties seek to appeal from this decision, the Court requests MAS to continue to carry out the assessment with expedition. The parties are to prosecute any appeal with expedition.

Orders

233. The Court orders:

1. Judgment for the defendant.

2. Costs reserved.

3. Exhibits retained for 28 days.

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Decision last updated: 15 March 2022