District Court New South Wales Medium Neutral Citation: Cooper v Nominal Defendant [2017] NSWDC 3 Hearing dates: 30-31 May 2016, 1-3 June 2016 (Nowra); 7-8 June 2016 (Sydney) Date of orders: 20 January 2017 Decision date: 20 January 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: Verdict and judgment for the plaintiff for $1,114,493 Catchwords: MOTOR ACCIDENTS COMPENSATION – Collision between two motorcycles, one driven by plaintiff (P) and other driver by Lamont (L) – Each motorcycle was an "offroad bike" – Neither bike registrable or insured – Both P and L had been in each other's company for over 18 hours – Each had been consuming alcohol – L's BAC was 0.156 – P's BAC was of no evidentiary value – Collision occurred before any natural light, about 5.15 am, on a public street – Neither P or L had any reliable recollection of the 12 hours preceding the collision – Whether L owed a duty of care to P – Extent of P's contributory negligence – P was catastrophically injured – Extent of P's non-economic loss – What P could have been expected to earn but for collision – Whether P had any earning capacity post collision Legislation Cited: Civil Liability Act 2002 Crimes (Administration of Sentence) Act 1999 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Motor Accidents (Lifetime Care and Support) Act 2006 Road Transport Act 2013 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Butt v Liebherr Australia Pty Ltd [2015] NSWDC 3; (2015) 19 DCLR (NSW) 346 at [11] Clyde v State of NSW (TAFE Commission) (1995) 12 NSWCCR 541 Collins v Clarence Valley Council [2015] NSWCA 263 Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498 Green & Ors v Nominal Defendant [2012] NSWDC 37 Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199; Imbree v McNeilly [2006] NSWSC 680 Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 Insurance Commissioner v Joyce (1948) 77 CLR 39; [1948] HCA 17 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Kallouf v Middis [2008] NSWCA 61 Knight v GIO of NSW [1995] NSWCA 246 Mackenzie v Nominal Defendant [2005] NSWCA 180 McNeilly v Imbree [2007] NSWCA 156; (2007) 47 MVR 536 Mead v Kerney [2012] NSWCA 215 Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 Moran v McMahon (1985) 3 NSWLR 700 Nettleship v Weston [1971] 2 QB 691; [1971] 3 All ER 581 Nominal Defendant v Green & Ors [2013] NSWCA 219 Paul v Cooke [2013] NSWCA 311; (2013) 85 NSWLR 167 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 RACQ Insurance Ltd v Motor Accidents Authority of NSW (No 2) [2014] NSWSC 1126 Reece v Reece [1994] NSWCA 259; (1994) 19 MVR 103 Schultz v McCormack [2015] NSWCA 330 Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397 Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 Varga v Galea [2011] NSWCA 76 Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427 Wyong Shire Council v Vairy [2004] NSWCA 247; Zanner v Zanner [2010] NSWCA 343 Zlojutro v GIO (NSW) (NSWCA, unreported, 11 August 1995, 40569/89) Category: Principal judgment Parties: Buck Anthony Cooper (Plaintiff) The Nominal Defendant (Defendant) Representation: Counsel: Mr A J Stone SC with Ms S Warren (Plaintiff) Mr R Stitt QC with Mr B Wilson (Defendant) Solicitors: Slater & Gordon (Plaintiff) Holman Webb (Defendant) File Number(s): 2014/287850 Publication restriction: No Contents Title (or Subject Matter) Paragraph Introduction 1 The plaintiff's background 3 The plaintiff's experience riding motorcycles 41 Mr Timothy Lamont 43 Tuesday, 15 October 2013 46 Lamont's alcohol consumption 51 The reliability of Lamont's memory 53 The failure of the plaintiff to call his wife, Jade 54 Wednesday, 16 October 2013, the early hours 55 The collision scene 57 The motorcycles 60 The collision 64 Vehicle noise 75 The immediate aftermath of the collision 76 Treatment at St George Hospital 79 Treatment after discharge from SGH 86 Treatment of the left arm problems in 2014 88 Other treatment in 2014 91 Treatment since 2014 97 Did the plaintiff suffer a brain injury? 101 Professor Fearnside's assessment 107 The plaintiff's psyche 108 A return to work? 109 (a) What would the plaintiff have done uninjured? 110 (b) The post collision plans 114 (c) Other work? 121 How the plaintiff spends his day 122 Credibility 129 The plaintiff's sobriety at the time of the collision 135 Playing "Chicken"? 143 An accidental collision 144 Did Lamont owe the plaintiff a duty of care? 145 (Leading cases) 147 (Joint criminal enterprise cases) 172 (Green et Ors v Nominal Defendant) 182 Consideration 187 Defence under Civil Liability Act 2002, s51 193 Liability 204 Contributory negligence 206 (Particulars provided by the defendant) 206 (Nominal Defendant v Green) 209 (The plaintiff's submissions) 213 (Relevant causal factors) 215 (Apportionment) 217 Damages 219 (a) Non-economic loss 219 (b) Past economic loss 231 (c) Past superannuation 236 (d) Future economic loss 237 (e) Future superannuation 242 (f) Other heads of damage 243 (g) Summary and Total 244 Order 245 Judgment Curia advisari vult Introduction 1. The plaintiff, Buck Anthony Cooper, suffered "complex and life threatening injuries" when the motorcycle he was riding collided with a motorcycle being ridden by Timothy Robert Lamont ("Lamont"). The collision occurred at approximately 5.15am on Wednesday 16 October 2013 on the Lake Conjola Entrance Road ("LCER") in the village of Lake Conjola, between the intersections of that road with Milham Street and Norman Street. Neither of the two motorcycles was registered to be driven on a "road" as defined in the Motor Accidents Compensation Act 1999 ("MACA") s 3 and the Road Transport Act 2013 s 4(1). Each of the motorcycles has been described as a "motocross type of motorbike" and as a "trail bike". Seeking to recover damages for his personal injuries, the plaintiff brings an action in negligence against the Nominal Defendant pursuant to MACA s 33. 2. The parties have agreed upon a large number of issues and facts in issue. In accordance with the Court's Standard Directions counsel presented Schedules of Issues (that for the plaintiff is MFI 7, that for the defendant is MFI 9). I trust I shall be forgiven for reducing the issues to those which were ultimately argued in addresses: 1. did Lamont owe the plaintiff a duty of care? If he did, the defendant admits that that duty of care was breached, thus admitting negligence; 2. a defence under the Civil Liability Act 2002; 3. what was the extent of the plaintiff's contributory negligence? The plaintiff, through his counsel, admits that he was guilty of contributory negligence and submits that he should be found to be 25% responsible for this collision; the defendant submits that the plaintiff's responsibility for the collision is much higher and submits that it should be 100% pursuant to the Civil Liability Act 2002, s 5S, or, alternatively, 80% (defendant's written submissions, MFI 15, [45]); 4. quantum; and 5. the plaintiff's credibility, which, although not formally an issue or a fact in issue, is a fact relevant to all the facts in issue, and was the subject of a major challenge by the defendant. The circumstances prior to and at the time of the collision are unusual. The plaintiff and Lamont had been in each other's company for at least 18 hours prior to the collision. What occurred in that period is the subject of controversy between the parties. Involved is "the dreaded demon drink". To understand what occurred is best understood by considering the plaintiff's background, which is relevant to each of the issues I have identified. The plaintiff's background 1. The plaintiff was born on 8 January 1988. He believes that he was born in Sydney, but his earliest memory was of growing up at Culburra Beach, in the Shoalhaven. His father was Scott Cooper and his mother is Jane, but that relationship ended shortly after the plaintiff's birth. The only contact, of which the plaintiff is aware, with his father is one telephone call. The plaintiff's mother then married Mr Ben Dowling, and his mother is known as Ms Jane Dowling. In effect, Ben Dowling has been the plaintiff's father although the plaintiff has always been aware that he is his step-father. Jane Dowling bore Ben Dowling a daughter, April, the plaintiff's half-sister. April is about 6 years younger than the plaintiff. Ben and Jane separated when the plaintiff was 14 or 15 years old (T109.46). Jane Dowling settled in Lake Conjola after their separation and Ben Dowling in Milton, although the evidence suggests the plaintiff had lived in Milton with the Dowlings since age 11 years (T84.15). According to a medical history given on 9 October 2012, the plaintiff's "biological father reportedly has a heroin problem and a severe mental illness." The plaintiff's mother was present at that interview and that history may have been given by her. If it were given by the plaintiff one would expect him to have that information from his mother any way. A heroin addiction could cause a psychiatric illness. This piece of information is, therefore, a dubious source on which to base a "family history of psychiatric illness." 2. Dr Pauline Langeluddecke interviewed the plaintiff on 19 October 2015. Part of her history is that the plaintiff was "not required to repeat any grades at school." That history is consistent with the other evidence. Assuming that the plaintiff commenced his schooling at age 5 years (the norm in this State), the following chart can be constructed: Year Age Grade 1993 5 Kindergarten 1994 6 Year 1 1995 7 Year 2 1996 8 Year 3 1997 9 Year 4 1998 10 Year 5 1999 11 Year 6 2000 12 Year 7 2001 13 Year 8 2002 14 Year 9 2003 15 Year 10 1. The plaintiff's first "difficulty" was apparent at age 11 years. At the psychiatric interview in 9 October 2012 (with Dr Michael Hong, reports exhibit O) Dr Hong recorded this history: "Mr Cooper's mother informed that Mr Cooper has had conduct problems from a young age, even though the home environment was stable, and there were no particular reasons for this. His behavioural and mood problems probably started at age eleven years, before he commenced using substances. He is described as someone who is difficult to connect with, and he finds small changes difficult to adjust to, and he will become fixated. His mother described that he would become so fixated on watching television and would become angry when he was not allowed to, that the family ended up giving away television for five years." 1. The evidence does not disclose where the plaintiff undertook his primary education. He commenced his secondary education at Shoalhaven Anglican College at Milton. He left that College at the end of the first term of Year 9 (T82.12). I asked the plaintiff why he left that College and he answered (T83.07): "I actually can't remember, your Honour, I just – I was becoming the age of being rebellious and stupid, basically." The plaintiff then went to Ulladulla High School. A number of other significant events occurred in 2002. The plaintiff started to use cannabis and also alcohol. He also formed a relationship with Jade Pritchard, which has persisted to this day. They married after the motorcycle collision on 29 November 2014 (T163.22). Jade's family was the source of free cannabis. The plaintiff also displayed other behavioural difficulties. On 24 November 2002 the plaintiff assaulted his parents, leading to his appearing before the Children's Court at Milton. The plaintiff was placed on a bond to be of good behaviour for 12 months and to be under the supervision of Juvenile Justice. A few weeks after assaulting his parents, the plaintiff stole a VCR from a school, which led to the Police giving him a caution. 1. The plaintiff commenced Year 10 in 2003 at Ulladulla High School but left "just after the commencement" (T82.35). The reasons given by the plaintiff prior to giving evidence and in chief as to why he left Ulladulla High School lack credibility, but this is not the place to consider that issue. The true reasons emerged in cross-examination. The plaintiff, with his free source of cannabis, was known to his "mates" as a source of supply. He did supply cannabis to his "mates" who included some of his "school friends". This became known to the school authorities who asked the plaintiff "to leave and not come back" (T190.32). The plaintiff knew after leaving Ulladulla High School that he was "not acceptable at any other high school" (T193.36) and the only reason he knew for his being unwelcome at other schools was his "drug dealing" (T194.01). On 17 April 2003 the plaintiff attended upon Dr Timothy Devlin at the Mollymook Medical Centre. Under the heading "Diagnosis" the clinical notes (exhibit M) state this: "Behaviour problem. - exclude petit mal/SA/ADHD/depression" There is then a heading "Actions" but the exhibit is truncated and there is no page beyond that numbered 28. I do know that thereafter there was a blood examination performed and a CT scan of the brain. The plaintiff returned to see Dr Devlin on 6 May 2003. The notes are these: "Diagnosis Behaviour problem Dope abuse EEG changes Management Counselling re options – with Step father > trial Tegretol Dope reduction Actions Prescriptions printed: Tegretol tablet 100mg i nocte for 2/7 then BD Document saved – EEG" Tegretol is an anti-convulsive drug. In a report of 25 June 2003 Dr Devlin referred to the EEG changes as showing "Dysfunctional Frontal Encephalopathy", which Dr Langeluddecke described as temporal lobe pathology which might be related to a high cannabis (THC) intake. Thereafter the plaintiff fairly regularly attended upon Dr Devlin, who remains his treating general practitioner. Most consultation notes commence with the diagnosis of "behaviour problem" and often treatment is described thus: "Counselling +++ - long discussion re nature of illness and its course. Specific attention directed to: (a) reassurance (b) support (c) insight." The prescription of Tegretol continued for years. 1. Sometime in May 2003, the plaintiff was charged with possession of cannabis. That drug and a "bong" were found by the police in his backpack. He was again required to appear before the Children's Court at Milton. He saw Dr Devlin on 25 June 2003 when an additional diagnosis of "Anxiety re court appearance" was added. Dr Devlin also referred to cannabis detoxification under Ms Petra Lehman at Ulladulla Mental Health Service. Whether that was treatment prescribed by Dr Devlin or something he merely noted I do not know. On the same day Dr Devlin wrote this letter to be tendered in the Children's Court: "Thank you for considering this submission re Master Buck Cooper, age 15 years. As you know he has suffered from behavioural problems resulting in various legal issues. A recent EEG has diagnosed a Dysfunctional Frontal Encephalopathy which may explain many of his behavioural traits. He has been on medication and has shown a marked improvement. He is also undergoing cannabis detoxification ... Could you please take account of these issues in your deliberations." The plaintiff was placed on a further good behaviour bond for a period of 12 months. 1. The plaintiff continued his education through the Open Training and Education Network (OTEN) at a youth centre at Ulladulla. This provided him with a qualification equivalent to the School Certificate. This study was over a period of "nearly two years" (T83.17). Unfortunately, I do not know whether those years were 2003 and 2004, or 2004 and 2005. 2. There was a gap in the plaintiff's treatment by Dr Devlin for eleven months between 1 August 2003 and 12 July 2004. On that occasion Dr Devlin noted that the forensic issues were over, but the plaintiff had stopped taking Tegretol and there had been a return of his behavioural problem. The doctor noted that the plaintiff was still "cannabis dependent" but that he was using less. Tegretol was again prescribed and counselling provided. This treatment regime was again provided on 11 August and 22 November 2004. 3. In April 2005 the plaintiff obtained a certificate that he had completed the course "General Construction OHS Induction in NSW". That was issued by TAFE and I infer that it was completed under the aegis of that government body. On 16 August 2005 the plaintiff again saw Dr Devlin. The reason is unclear. According to the clinical notes the plaintiff's behaviour issues were "excellent" and he was having no problems with Tegretol. Nevertheless the "usual" counselling was provided. Blood tests were also prescribed. This may merely represent a "check-up". 4. In January 2006, shortly before his 18th birthday, the plaintiff was charged with assault (T115.04). That was a "street fight". The plaintiff was again required to appear before the Children's Court at Milton. He was fined. The only subsequent crime with which the plaintiff was charged was one committed on 19 August 2012. On 7 February 2006 the plaintiff attended upon Dr Devlin again. The clinical notes record the "Reason for visit" thus: "Behaviour – excellent Right Scrotal Mass – clinically epididymal cyst" The notes then record the provision of the "usual" counselling, the prescription of Tegretol and a direction for a scrotal ultrasound to be performed. The latter was performed on 9 February 2006 and the plaintiff was advised of the results on 13 February 2006. Since this medical problem is not further discussed, it is likely that Dr Devlin's diagnosis of the scrotal mass was correct. As the plaintiff did not advise Dr Devlin of any behavioural problem it seems likely to me that what prompted this consultation was the plaintiff's discovering the scrotal mass. 1. In March 2006 the plaintiff obtained from TAFE a Certificate II in General and Vocational Education. In May 2006 he obtained a "Statement of Attainment – Outreach Access" from TAFE. These qualifications indicate that the plaintiff was seeking to advance himself. However, he still had a problem: his drug habit. He saw Dr Devlin on 22 September 2006 for "substance abuse". The "usual" counselling was provided, Tegretol again prescribed, pathology tests ordered and a referral to Mr Alex Krilov made. I know from subsequent documents that Mr Krilov is a clinical nurse specialist in mental health with the Ulladulla Mental Health Service (exhibit S). The plaintiff was unable to say whether he saw Mr Krilov at this time (T88.40).The only illicit drug, other than cannabis, that the plaintiff admits to have used is ecstasy. He appears to have used this drug at age 17 (T93.27)(T191.29) and said it was for 10 to 15 times "maximum" (T93.24). He last used it when he was about 20 years old (T247.12). 2. In 2007 the plaintiff commenced a yearlong TAFE course to enable him to obtain a carpentry apprenticeship. In December 2007 he was awarded a Statement of Attainment in Carpentry (Pre-Vocational). When asked what he had to do to obtain this qualification, the plaintiff said (T87.17): "That was a pre-apprenticeship in carpentry that involved travelling from my area where I lived [Milton-Ulladulla] to Nowra TAFE four days a week for roughly eight hours for one year to get my Certificate I and II theory in carpentry." For the first 6 months the plaintiff drove to and from Nowra, but he then lost his driver's licence "through demerit points" and for the next 6 months he took public transport – a bus. This indicates that, at the age of 19 years, the plaintiff was committed to pursuing this career path. His subsequent work history confirms this commitment. His attendances at the Mollymook Medical Centre in 2007 were, in my view, generated solely by an injury he received at TAFE. He attended upon Dr Kennedy at the Medical Centre on 1 June 2007. The history recorded commences: "Laceration right anterior thigh 3 days (ago) at TAFE with chisel. Sutured at Milton Ulladulla Hospital. Query early local inflammation..." The wound was erythematous. Antibiotics were prescribed as well as Tegretol. The wound was dressed by a nurse on 13 June. There was no further attendance at the Medical Centre in 2007 and no attendance in 2008. 1. 2008 was a good year for the plaintiff. Jade bore him a son, Blair Benjamin Cooper, on 23 February. Shortly afterwards he commenced an apprenticeship as a carpenter with Mr Gavin Williams of Innovative Spaces Pty Ltd. This lasted for about two and a half years (T89.11) until the plaintiff was made redundant when the company experienced financial difficulties (T89.14). Much of the plaintiff's work for Mr Williams was at Foxground, north of Berry. The plaintiff described this work thus: "It was a little bit different work because we were building multimillion dollar houses. It wasn't your typical suburban home. So a bit of everything, a lot of concreting, fitting out, a lot of stuff." The only untoward event in this year was an argument that the plaintiff had with Jade on 30 March 2008 which resulted in the police being called to their home. However, there is no suggestion that any charges were laid. In December 2008 the plaintiff obtained a Certificate III in Carpentry. 1. 2009 was a largely uneventful year. The plaintiff continued his apprenticeship. In August he had an industrial accident: he lacerated his left thumb whilst using a power saw. The plaintiff is right handed (T158.10). He required surgery. This was a tendon repair by Professor Gumley at Sydney Hospital. On 1 September he saw Dr Devlin after surgery had been practised. Dr Devlin prescribed Endone for pain relief. The plaintiff saw Dr Devlin again on 11 September and 15 September, when sutures were removed. On that day the prescriptions for Endone and Tegretol were stopped. Dr Devlin noted that the plaintiff's mood/behaviour was excellent. 2. The following year was more eventful. On 8 January 2010 the plaintiff obtained an Australian Business Number (ABN) as a sole trader under the name of "Buck Cooper". This appears to anticipate his eventually qualifying as a carpenter. At some time during this year the plaintiff's employment with Innovative Spaces Pty Ltd came to an end (see [15]) and the plaintiff had to "look around for somebody else to both employ [him] and to allow [him] to continue [his] apprenticeship" (T89.16). He found such employment with Mr David McIver of Urban Design Homes of Vincentia. Mr McIver's wife (or life partner) was Ms Leanne Oldfield. On 26 June 2010 Jade gave birth to a daughter, Jasmine Lee Cooper, their second child. 3. On 30 April 2010 the plaintiff presented to Dr Davis with a new complaint: depression. Whether, to use old terminology, that was exogenous or endogenous the evidence does not enable me to say. Dr Devlin's clinical notes are silent as to cause and the plaintiff was unable to recall this complaint (see T91). One could speculate that the depression may have been caused by the plaintiff's losing his job with Innovative Spaces Pty Ltd. Whatever its cause, this bout of depression appears to have lasted for no more than ten weeks. Dr Devlin's notes for 30 April 2010 are these: "Reason for contact Depression - unipolar - moderate severity/no thought of self harm - non melancholic- non psychotic - marked comorbid anxiety - early morning wakening Management Supportive and Insight Orientated Counselling Psychoeducation – BB/Cognitive Behaviour Therapy" Dr Devlin also prescribed Lexapro tablets. On 3 May 2010 Dr Devlin created a mental health plan, but that document is not in evidence. On 14 May he provided further counselling and noted "good improvement". There was further counselling on 31 May and "further improvement." A final session of counselling was provided on 30 June when Dr Devlin noted: "Depression – excellent - rates mood 9/10 - just had a second child." There was no further attendance by the plaintiff at the Mollymook Medical Centre in 2010 and the next mention of depression was not until 19 December 2011. 1. The plaintiff completed his apprenticeship at the end of 2011. He received a Craft Certificate from the Commissioner for Vocational Training dated 12 December 2011 stating that he had successfully completed his apprenticeship as a carpenter and joiner with effect on 8 January 2012. The covering letter bears the same date as the Certificate. This should have been welcome news for the plaintiff. Nevertheless, he attended upon Dr Devlin on 19 December 2011 with depression. The oral evidence does not suggest any external stressor. The clinical notes provide these reasons for contact: "Depression - moderate – no thought of self-harm - low grade paranoia - increased alcohol/cannabis use - off medications for six months" Again, Dr Devlin provided counselling and prescribed Lexapro. On 28 December the plaintiff completed a Mood Assessment Program, designed by the Black Dog Institute. A report of this was forwarded to Dr Devlin on 3 January 2012. A copy of it is exhibit 10. This indicated that the plaintiff's depression was "significant" with a scale of 13/30. This was thought to be a non-melancholic depression and probably unipolar. It was thought that the plaintiff had first been depressed at age 15 years. At the time of the assessment the plaintiff was euthymic (opposite of dysthymic). The major stressor identified in the previous 12 months was that the plaintiff had "problems in a close relationship." This is, most probably, with Jade (from whom he was "separated" at the time). Other stressors in the same period were serious drug/alcohol issues and his being involved in a "serious dispute", which, unfortunately, is not identified. Dr Devlin reviewed the plaintiff on 10 January 2012. The clinical notes describe clinically moderate melancholic depression but any previous psychotic features (which include paranoia) had settled. The plaintiff's medication was changed from Lexapro to Cymbalta. Dr Devlin then prepared a Mental Health Plan which is dated 10 January 2012 but, from the clinical notes, only became available on the following day. It is part of exhibit L. It does not suggest treatment by any other medical practitioner or mental health worker. That document provides a diagnosis of "depression". The clinical notes for 11 January suggest probable "non-melancholic depression." 1. Before the plaintiff's next visit to Dr Devlin, there was an incident at work. The plaintiff had a disagreement with Ms Leanne Oldfield ("the boss's wife"). The plaintiff gave this evidence (T94.19): "... this specific incident was when I was trying to get my last allowance signed, and I'd been trying to get my tool allowance signed, and I'd been trying to get it for quite some time, and I asked her probably for the tenth time over a period of three to four months and she snapped at me." On 8 February 2012, the plaintiff saw Dr Devlin again for "depression". The clinical notes continue: "- acute stress reaction after issues with boss's wife (says she abused him for no reason). - doesn't feel safe at work (tools etc) - requesting a few days off - no thought of self harm." Dr Devlin provided further counselling and a medical certificate. In cross-examination (T232.20) the plaintiff said he had four days off work and then returned and worked for a further fortnight before his services were terminated. The plaintiff also said that he was not afraid of working with tools, but of leaving his tools at the work site (T231.43). Exhibit JJ is a copy of a letter of "Termination of your employment by reason of redundancy." The salient parts of the letter are: "As a result of economic downturn the position of Carpenter is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection of your performance. Therefore your employment will end on 23rd March 2012." 1. The plaintiff was accordingly thrown onto the open labour market, looking for work. Nevertheless, he did not need to seek medical attention for another three months. This, again, speaks against a proposition that the plaintiff's depression was mediated by an external stressor. At this time, shortly after the completion of his apprenticeship, the plaintiff said that he felt fully qualified as a tradesman that he "could do everything ... to do with the house building" and he was "extremely confident" that he could make his livelihood from his trade (T95.04). He went on to obtain work with Mr Robert Leslie Streeter ("Bob the Builder"), a builder residing at Vincentia and working in the Shoalhaven. Unfortunately, neither the plaintiff nor Mr Streeter (who gave evidence) could tell me the period in which the plaintiff worked for Mr Streeter. However, exhibit J (a summary of tax returns) suggests that the plaintiff may have worked for Mr Streeter for a few weeks before the end of June 2012 and into August of that year, when many events occurred. The plaintiff was very well regarded by Mr Streeter who engaged him as a subcontract carpenter. I shall discuss this aspect later. The plaintiff was being paid $31.50 per hour whilst working for Mr Streeter. 2. On 28 June 2012, the plaintiff consulted Dr Matthew Kennedy at the Mollymook Medical Centre. The plaintiff appears to have presented with anxiety. The clinical notes, so far as I can interpret them are: "Depression now 3/10 versus previously 9/10. Strong family history of anxiety and depression. Anxiety persists especially when under pressure. D/W stress management incl exercises and medication mane (in the morning) regularly. Counselling. D/W Cymbalta." The comparison with previous depression is with the level recorded on 30 June 2010. This attendance at the Medical Centre and the symptoms at the time were not canvassed in the oral evidence. However, it must be noted that even when working for Mr Streeter, the plaintiff was a heavy user of both cannabis and alcohol. He was smoking 10 to 15 cones of cannabis per day (sometimes when he was at work – T98.31) but mostly after work and, as a generalisation, 4 to 6 beers (375mls or 330mls) or bourbons "most evenings" (T98.31). The beer he consumed would be either Australian beer or his own home brew. 1. The immediate reason for the plaintiff's stopping working for Mr Streeter was that Mr Streeter ran out of work (T351.30) and the plaintiff needed to seek other work until Mr Streeter could find work. When Mr Streeter found other work he rang to offer another subcontract to the plaintiff but was unable to contact him. The documentary evidence suggests that the plaintiff may have found other work "with [a] family friend (King Pullman) 1-2 days/week" (exhibit S, mental health triage notes, 20 August 2012) but that was not mentioned in the oral evidence. This might be a reference to Poolman King – see [115] below. Within, probably, the first week or so of August 2012, the plaintiff came to realise that Jade had been unfaithful to their relationship. The infidelity was over a period of six years and involved more than one man. The plaintiff was now 24 years old. His relationship with Jade had lasted 10 years. They had two young children together. The plaintiff described this realisation as "devastating" (T99.29). He was "very angry" (T99.36). He and Jade were arguing and yelling at each other. He became even angrier with time (T100.24). The plaintiff said that he stopped working "within a couple of days" (T120.29) of learning of Jade's infidelity but the plaintiff's recollection in that regard may be faulty. The plaintiff "started drinking all day and smoking marijuana all day". The plaintiff's intake reached 60 cones ("bongs") of cannabis daily and one bottle of bourbon daily (T101.45). Clearly, things were out of control. The plaintiff even came to suspect the paternity of his daughter, but subsequent DNA testing alleviated that concern. 2. On Sunday 19 August 2012, the plaintiff assaulted Jade. Exhibit 9 (NSW Police Facts Sheet) contains this history: "About 7:00pm on Saturday the 18th of August 2012 the accused, Buck COOPER went out drinking to the Commercial Hotel, located upon the Princes Highway Milton, where he admitted to consuming copious amounts of alcoholic beverages being 4 x Scotch – Jack Daniels 375ml cans, 4 x 275ml of Bourbon, 6 x Schooners of full strength Tooheys New beer and 4 x Yagga Bombs containing a mixture of Red Bull and Alcohol. About 1:00am on Sunday the 19th August 2012, the accused was later driven by another male to a residence in Lake Conjola where he continued consuming a further 3 x 375ml cans of Rum. At the time the accused stated [that] he was 'wasted', indicating that [he] was well affected by alcohol, on a scale out of ten being eight. About 2:00am the same morning, the accused was conveyed to his residence being 12 Milham St Lake Conjola, by the male friend. The accused has then entered the premises where he began having a verbal argument with his partner Jade PRITCHARD, which escalated to yelling abuse at each other. The accused yelled out, "Slut" and other name calling. A short time later the accused became aggressive subsequently throwing a full closed can of rum, towards PRITCHARD with force, which hit her on the corner of her left eye causing immediate pain and swelling. The accused continued the verbal and physical abuse subsequently pushing PRITCHARD with both hands on her chest causing her to stumble over and fall to the ground. The accused continued to grab PRITCHARD by her hair on the rear side of her head, resulting in opening up a recent wound where she obtained five stitches causing it to bleed. The accused then removed himself from the premises and walked to the beach. About 2:30am, PRITCHARD was slicing a loaf of bread when she accidentally cut her left hand between the thumb and index finger, subsequently contacting April DOWLING, the sister of the accused and who resides approximately one kilometre from the PRITCHARD'S residence, requesting her to bring her mother's vehicle as she required to attend Milton Hospital due to an accidental injury she obtained. April DOWLING arrived a short time later at the residence handing over the vehicle for PRITCHARD.PRITCHARD did not disclose the assault to DOWLING but told her she sustained from an unknown female when she attended the Marlin Hotel earlier that evening to pick up the Accused. PRITCHARD then left in DOWLING'S vehicle, conveying herself to Milton Hospital. At no time were police contacted. April DOWLING took custody of the children and returned them to her home, leaving the Accused home alone." The plaintiff admitted assaulting Jade by throwing a can of drink at her but denied an allegation of inflicting any wound with a knife. The police were alerted to this event by staff at the Milton Ulladulla Hospital where Jade went to have her left hand treated later on that Sunday. The police took a statement from Jade at 8.30am on Monday 20 August. The plaintiff went to the Ulladulla Police Station at 3.40pm that day and was arrested, charged and was refused bail. 1. At 9.30am on Monday 20 August 2012, Mr Alex Krilov, Clinical Nurse Specialist in Mental Health at the Ulladulla Mental Health Service started to complete a Mental Health Triage form (exhibit S). It is clear that the information contained in it was provided by the plaintiff's mother, Ms Jane Dowling. The document records that the plaintiff was "at work awaiting police arrival". Wherever the plaintiff was, police did not call to arrest him, he went voluntarily later that day to the police station. Jane Dowling was worried that the plaintiff was "at a high risk of suicide if released on bail". At 10.46am, the receptionist at the Mollymook Medical Centre faxed a full summary of the plaintiff's treatment at that Centre to Mr Krilov. It appears that Mr Krilov spoke to the plaintiff on the telephone. The document in evidence (which does not appear to be complete) states: "MENTAL STATE IMPRESSIONS settled via phone today, though mum states mood labile + agitated/aggressive ++ commensurate with stressors + substance abuse issues." It appears to me that the purpose of Mr Krilov's intervention was to ascertain whether the plaintiff was a suicide risk. The plaintiff had, after learning of Jade's infidelity, made a suicide attempt by overdose of Cymbalta (T119.48), according to exhibit S "within [the] past few weeks" of 20 August 2012. Jane Dowling also told Mr Krilov that the plaintiff had also made "recent suicidal threats" of hanging himself, but that was not mentioned in the oral evidence. If such threats were made, they may have been idle. A copy of this Triage form was sent to Ms Jodie Massey and to Dr Devlin. 1. Ms Jodie Massey is a Mental Health Nurse with Justice Health. On 21 August 2012 she prepared a report addressed to the presiding magistrate at the Local Court at Nowra (exhibit N). She assessed the plaintiff "in the custody area of the court at Nowra Local Court" on that day. Under the heading "Clinical Impression" Ms Massey said: "Mr Cooper is treated in the community for depressed moods with antidepressant medication. He presents today with a recent history of increased substance use, poor anger management skills and poor impulse control. Education, counselling and rehabilitation are available in the community. At this time there are no documents to support or evidence of diagnosis of a serious mental illness. He denied he is at any current risk of self harm or suicide. However there are reports that he is likely to be more at risk of suicide or harm to others while under the influence of substances." Ms Massey had consulted with Professor Greenberg. They did not believe that the plaintiff was either a "mentally disordered person" or a "mentally ill person" under the applicable legislation and they recommended further assessment. It seems that the Local Court granted the plaintiff bail and on the following day he was admitted to the Milton Ulladulla Hospital for detoxification. Exhibit 11 relates to this admission which was for a period ending on 27 August 2012. The diagnosis provided was "Alcohol withdrawal Syndrome". The history recorded includes this matter: "States drinks a bottle [of] bourbon and several beers daily. Also daily cannabis, occasional amphetamine. States drug free since Sunday (3 days)." The plaintiff denied in evidence use of amphetamines (T191.20, T192.42). This could be a reference to ecstasy use but exhibit S has this history: "Increased amphetamine use past 3 weeks", which is incompatible with the plaintiff's evidence as to his use of ecstasy (see [13] above). 1. On 23 August 2012 the plaintiff obtained leave from the Hospital to attend Dr Devlin. His notes provide these reasons for contact: "Depression – non melancholic - marked anxiety - background substance issues - Situational stressor > relationship issues -currently in-patient at Milton Ulladulla Hospital detoxing from cannabis/alcohol - forensic issues - had ceased Cymbalta > restarted recently" Dr Devlin prepared another Mental Health Care Plan, a copy of which is part of exhibit L. After discharge from the Hospital, the plaintiff returned to see Dr Devlin on Tuesday 28 August 2012. Dr Devlin noted that the plaintiff's mood was much improved and that there was no suicidal ideation. The plaintiff told the Doctor that he was awaiting admission to Kedesh, a rehabilitation service. Dr Devlin provided "extensive supportive and insight orientated counselling". On this occasion, Dr Devlin prescribed Zyprexa. The doctor also provided further counselling on the following day, noting a new stressor "DoC interview". The relevant government department, referred to in the evidence as both "DoCs" (Department of Community Services) and FaCS (Family and Community Services), had taken an interest in the plaintiff's children since at least the report of his assaulting Jade on 19 August. This stressor remains in the plaintiff's life. On 3 September, Dr Devlin wrote a referral letter to a psychiatrist at the Lawson Clinic at Gordon. The plaintiff did not see that psychiatrist but one of his colleagues, Dr Michael Hong. The plaintiff, however, did not get to see Dr Hong until 9 October. 1. In the meantime the plaintiff remained under Dr Devlin's care until he was admitted to the Kedesh Rehabilitation Program on 13 September. Prior to that admission, a history was given on 3 September. The document recording that history is exhibit 13. The plaintiff admitted using both cannabis and alcohol since the age of 14 years and that the only time he had been "clean" was "the last two weeks". The plaintiff listed as his hobbies: "Surfing, motorbike riding, going to the gym, playing with the kids." The plaintiff admitted to problems with depression, anger and anxiety. He also said he had frontal lobe damage which was causing his mood swings. Whether that was advice he had received or his personal opinion is not clear. The plaintiff said he was a self-employed carpenter and that he wanted to return to that work and that he had an interest in completing further education "to become a builder". 2. On 9 October the plaintiff was interview by Dr Michael Hong by "Tele-health" (so described by the health professionals) or Skype (by the plaintiff). This was done from Dr Devlin's surgery, the plaintiff's obtaining a pass to leave Kedesh's Illawarra Treatment Facility for this purpose. The plaintiff's mother was present at the interview and, after it was completed, Drs Hong and Devlin conferred by the same medium. Early in the interview, the plaintiff expressed frustration at being in Kedesh House. Dr Hong was told that the plaintiff had always been a person who found structure, routines and authority difficult to manage. Other matters of history contained in Dr Hong's report of 9 October I have already outlined. The doctor's report concludes: "DIAGNOSIS The clinical picture is complex and he clearly has a significant drug and alcohol problem, and this is the first time he has had inpatient rehabilitation, and the first time he had had a reasonable abstinence. He has never taken NAC treatment in the past. He may also have an independent psychiatric disorder, such as Bipolar Disorder, but I don't think this can be confirmed on the quality of the history provided. I have some concern that he has temporal lobe problems, and excessive caffeine and anti-psychotic medication can further increase his mood instability/lower seizure threshold. RECOMMENDATIONS As discussed, I would recommend mood charting. I would also recommend that he commence taking Epilim as an anti-convulsant, and gradually switching from Cymbalta, and if he requires anti-depressant, maybe Zoloft is a better one to try. I would like to review him in about four weeks' time." Dr Devlin then changed the plaintiff's medication from Cymbalta to Epilim. 1. On the following day, the plaintiff telephoned Dr Devlin after 3pm but he had left the surgery. The plaintiff left a message for the doctor. He was applying for early release from Kedesh House. He asked the doctor to provide a letter supporting that, and making the following points: (i) the plaintiff was in regular contact with Dr Devlin; (ii) a (further) psychiatric appointment had been arranged and booked; (iii) his medication had been changed; (iv) counselling under the Mental Health Care Plan was arranged; (v) if released early, the plaintiff would attend drug and alcohol counselling and anger management; (vi) the plaintiff would continue to provide urine specimens for testing; and (vii) it was important for the plaintiff not to lose any work contacts for his business. On the next day, Thursday 11 October, Dr Devlin complied with this request. His letter, part of exhibit L, was faxed to Kedesh House. The plaintiff was not granted early release, but some leave. He was observed consuming alcohol whilst on leave, on Friday 12 October. When confronted with this allegation, the plaintiff denied it and feigned shock but when then offered a quick urine test, the plaintiff admitted that he had taken alcohol (T223 to T225). He was then formally discharged from the Kedesh Rehabilitation program on 13 October 2012 "for substance use while on leave" (exhibit 16). The oral evidence to which I referred includes this: "Q. Did you want to continue with the program at Kedesh? A. I did not. Q. On 13 October 2012 whilst in the course of that program you consumed alcohol. A. Yes, I did. Q. May we take it from your answer that you did that deliberately? A. I had drinks because I was being an idiot, not deliberately to get kicked out of Kedesh, no. Q. But you knew that if you took alcohol and consumed it, that you would terminate the program. A. Yes. Q. With that knowledge did you deliberately consume alcohol? A. Yes. Q. Was that for the purpose of terminating the program? A. No. Q. But you see-- HIS HONOUR Q. From what you told me, you didn't want to give up drinking, did you? A. No, your Honour. Q. And you were reckless, is the lawyer's term, to use that term, that is, you knew that if you get caught out drinking you'd be out of the program and you went ahead and did it anyway. A. Yes, your Honour. " 1. On 15 October 2012 the plaintiff again attended upon Dr Devlin. The doctor commenced what became very regular urine screening tests for: Alcohol Opiates, Amphetamine Type Substances, Cannabinoids, Cocaine metabolites, Benzodiazepines (See exhibit HH). Almost every test conducted from this time onwards was negative (ibid). The dosage of the plaintiff's Epilim was increased and he was referred for other counselling. 1. On 16 October 2012, FaCS conducted a "Case Review Meeting" at Ulladulla Community Service Centre concerning the plaintiff's children. Present were the plaintiff, Jane and Ben Dowling, an AOD Counsellor from Kedesh House and three employees of the Department. The Minutes of the meeting are lengthy (exhibit 17). The first two paragraphs of the Minutes are these: "Tracey commenced the meeting by stating that the purpose of this meeting is to provide an update and look where to from here after Buck's early discharge from Kedesh after a breach abstinence of alcohol. Tracey provided an overview stating that Community Services (CS) first became involved with the family following a domestic violence (DV) incident in which Buck was charged with assault on Jade which resulted in an Apprehended Violence Order (AVO) being put into place. Bail conditions included Buck to detox for one week at Milton Hospital and attend the first available rehabilitation, which ended up being Kedesh. Both Buck and Jade have agreed to work with Community Service in relation to Buck having supervised contact with his children. Tracey noted that the next court date is 19 November 2012. Tracey asked for an update from Buck. Buck stated that he was discharged after going to the pub on his weekend leave, and had two Jim Beam cokes with a friend after having a nice dinner with Jade. Buck said that he didn't like Kedesh, he was falling asleep and missing his kids. Buck said that since leaving, he is doing voluntary urine samples through his doctor, AOD counselling, and looking at one on one counselling, which he prefers. Buck said that he is also signed up to do the Managing Strong Emotions course. Buck said that on Tuesday, whilst in Kedesh, he had contact with a psychiatrist Dr Hong (Gordon, Sydney) via Skype who changed his medication from cymbalta to Epilim, as the cymbalta was not working. The Epilim is a mood stabiliser and anti-depressant. This appointment was arranged through Buck's doctor, Dr Devlin. Buck said that he was taking cymbalta before Kedesh which was not working and the zyprexa was making him fall asleep." On the following page occurs this matter: "Tracey reminded Buck that rehabilitation was an alternative to [gaol], and you informed Stephanie (AOD Counsellor) that you were in there [Kedesh House] for your kids, yet you made the decision to drink. Buck said that he is not going back to rehab as it's not for him. Buck said that he found it depressing listening to other people's stories, there wasn't enough one on one time and that he wants to go back to work, as he is losing all his contacts." On the page after that appear these paragraphs: "Tracey explained that she is looking at undertaking and a commitment from Buck for 12 months to remain abstinent from alcohol, undertake random unrinalysis, and engage with services in relation to AOD and relationship issues, and no DV. If Buck breaches this then there could be further children's court action in relation to the care of the children and what access Buck has. Jane asked why Children's Court needs to be considered? Tracey said that Buck has a long history of mental health and AOD problems, he was arrested after a serious domestic violence incident, he was bailed to attend rehabilitation and was discharged half way through due to lapsing on alcohol. Buck agreed in the previous meeting with CS [Community Services] not to drink alcohol and complete Kedesh, this didn't happen. This is the next step, as CS main concern is for the children, there needs to be a safety net for them." The rest of the minutes sets out a number of decisions, the principal of which are: "Buck to continue working with Community Services in relation to supervised contact with his children, and the conditions of contact Jane to continue working with CS in relation to supervising contact between Buck and his children Buck to remain engaged with his Drug and Alcohol Worker, John De Casanove Buck to have bi-weekly supervised urinalysis through Dr Devlin. Buck to remain alcohol and drug free Buck not to engage in any form of domestic violence with Jade Buck to abide by conditions of AVO." The plaintiff had been living with Ben Dowling since his assault on Jade. 1. For the purposes of the forthcoming sentence hearing on 12 November 2012, a report was prepared for the magistrate by Mr John de Casanove, a Drug and Alcohol Clinician with the Shoalhaven Local Health District (exhibit Q). The substance of the report is this: "Mr Cooper's initial reason for seeking treatment was the charges of assault that are now before the Court. Mr Cooper acknowledges that the violence was related to his current stressors/relationship issues which were exacerbated by his drinking. Since Mr Cooper's offence The Dept of Community services have been involved with the family and strict guidelines have been placed on Mr Cooper regarding his access to his children. This has been a powerful motivation for Mr Cooper to remain abstinent. He has since completed 5 weeks of an 8 week residential program. Unfortunately Mr Cooper did not finish this program due to a small lapse with alcohol. As stated by Mr Cooper he had 'two beers' whilst on weekend leave. Apart from that lapse Mr Cooper states that he has not had any alcohol for 3 months and no cannabis for 4 months. Mr Cooper was working as a carpenter until recently. He currently attending many services for support and counselling as per D.O.C.s expectations; Drug & Alcohol counselling, Whole of Family counselling, relationship counselling with Salvation Army and his partner is also receiving Domestic Violence counselling. Mr Cooper has presented to 7 scheduled appointments and has participated in an honest and engaging manner. He always presents on time and appears to have made some positive changes and realisations regarding his ability to communicate his needs in a healthier/functional way. Mr Cooper has started to address his emotional triggers in relation to his behavioural functioning. He has explored his social skills and is increasing his living skills. It is expected that Mr Cooper will continue his Drug & Alcohol counselling for some time yet regarding relapse prevention and support. Mr Cooper is currently seeing a psychiatrist through his treating G.P Dr Devlin. He is prescribed Zyprexa 20mg daily as a mood stabiliser and Epilim 1500mg daily. During conversations with Mr Cooper he has always presented as remorseful and truly regrets his behaviour regarding the assault on his partner. He presents as a man who will benefit from counselling and in doing so it is hoped that this type of behaviour will not be repeated." Reports were also prepared by Kedesh Rehabilitation Services (exhibit P) and Dr Devlin (dated 2 November 2012, part of exhibit L). The plaintiff was placed on a bond pursuant to the Crimes (Sentencing Procedure) Act 1999, s 9, to be of good behaviour for 2 years. There were no longer any bail conditions and, semble, no AVO. The plaintiff returned to live with Jade and his children. However, the plaintiff still had to deal with FaCS. 1. The plaintiff saw Dr Devlin again on 27 November. He reported that his depression was stable. He had stopped taking Cymbalta and had not experienced any deterioration in his mood. The doctor noted that the "forensic issues" were resolved. The doctor stopped the Cymbalta and told the plaintiff he needed only to take Zyprexa (semble first prescribed on 28 August 2012) when he needed to do so. The dosage was i nocte, so it could be a sleeping tablet. The doctor discussed Anger Management with the plaintiff "at length". The plaintiff continued to attend the Mollymook Medical Centre every few days to provide a urine specimen for drug testing. On 4 December, the plaintiff was reviewed by Dr Hong. Dr Hong's report of that date (part of exhibit O) contains a history of the plaintiff's having returned to work but that history was incorrect according to the plaintiff (T107.23) and he was not challenged about that. He told the psychiatrist he had stopped taking both Cymbalta and Zyprexa (Dr Devlin formally stopped that on 19 December) and that his mood was stable, with no further highs or fits. This is the first mention of this symptom in the records before me but as the plaintiff had been prescribed anti-convulsives since 2003, it is likely to have been a problem over the years. The plaintiff was abstinent of alcohol and drugs, but Dr Hong was concerned about his consuming 5 cans of Diet Coke per day! Dr Hong thought it unlikely that the plaintiff had a "true bipolar disorder" but offered no differential diagnosis. He thought the plaintiff should stay on Epilim for 3 months and that it should then be stopped and the plaintiff be reviewed by Dr Hong at that time. That occurred on 5 March 2013. At a review on 19 December 2012, Dr Devlin noted that the plaintiff's depression was stable, that he was focussing well and that he was drug and alcohol free. Unfortunately, the plaintiff was unable to maintain his resolve to abstain from alcohol. 2. On 28 December 2012 the plaintiff drank, and appears to have drunk heavily. He started drinking at home (at Lake Conjola) and then "went for a drive" to Milton to buy pizza. The pizza shop was next door to the Star Hotel in Milton and the plaintiff was observed drinking outside that hotel although he had brought the alcohol with him from his home. An incident occurred outside the hotel and the police were called. There appears to have been an allegation of some form of domestic abuse, or of a disturbance of the peace (T236). The plaintiff denied any wrongdoing (T108.20, T236.04) and no charges were laid. However, FaCS became involved. The plaintiff went to live with his mother in Lake Conjola (only a small village). On 21 January 2013 FaCS put forward a "safety plan" for the plaintiff's family which required him to stay away from the family's residence. On 19 March 2013 the plaintiff gave an undertaking to the Children's Court that he would not live at the family home or have any unsupervised contact with his children (T236.41), The date given for this listing before the Children's Court in the transcript is 19 February 2013 (T236.41) (cross-examination of the plaintiff) but the documentary evidence contains two reports for the Children's Court both dated 19 March 2013 (see [37]) which therefore appears to be a more likely date. The plaintiff admitted that he "stuffed up" when he bought alcohol on 28 December 2012 and consumed it at his home. FaCS had stipulated that he was not to have alcohol in his family home. The plaintiff, to use his own words, "stuffed up" again by breaking his undertaking to the Children's Court. On or shortly before 10 April 2013 FaCS removed the couple's children from the care of both Jade and the plaintiff, due to the plaintiff's error (T237.22). For a very short time Blair and Jasmine were placed with their maternal grandparents but the department determined that such was not appropriate "because of the consumption of alcohol and drugs" in that house. For an equally short period, the children were placed in foster care, but then were placed in the care of Jane Dowling. The plaintiff appears to have gone to live with Ben Dowling again, but when the children had been placed with his mother, he returned to cohabit with Jade. 3. During (and perhaps before) this family turmoil, the plaintiff developed some animus towards FaCS. That remains. On 5 February 2013 the plaintiff saw Dr Devlin when anger management issues were discussed at length. On 5 March 2013 the plaintiff had his review by Dr Hong. His report of that date is this: "He is now taking Valproate 1000mg nocte. He reported less mood swing, no S/E and is keen to come off valproate. He drank alcohol 2 days before new year, and police was called [sic]. It was alleged he assaulted his son, with no charge being laid. He had to leave home after that, and DOCS is constantly monitoring his behaviour – he expressed frustration in this. He drinks 1 coke/day, no D+A since new year. He says his memory is sharper and he feels smarter since stopped substances. No fits. He has not returned to work. He surfs and go [sic] to the gym. No pervasive lows and no highs evident. No psychosis. After a fight, he is angry for one day, then feels "mental pain" for months. Suggest: review in 3 month [sic] maintain valproate to cease valproate (and repeat EEG after), when his functioning level is improved and external stresses is less [sic]." Valproate is the generic name for the drug which has a brand name of Epilim. 1. Mr John de Casanove prepared a further report dated 19 March 2013 for the Children's Court. It contains this: "Since Mr Cooper's last report written on the 15th November 2012 (see attachment). He was continued to attend this service – Southern Drug & Alcohol Services (SDAS) for counselling and support. Mr Cooper remains abstinent from alcohol and cannabis. He has had regular illicit drug tests from Community Services that monitor Mr Cooper on a regular basis. Since his last report Mr Cooper has presented for another 11 scheduled counselling sessions. During counselling Mr Cooper has always presented as polite and progressively achieving his goals of personal growth and maturity. He has engaged well with this service and appears to have learnt from this whole experience. Mr Cooper speaks fondly about his children and has expressed his deep sense of grief and loss regarding his family. He continues to work towards bringing his family back together again through learning new skills and breaking away from his dysfunctional history. Mr Cooper's next appointment is on 22nd March 2013." Ms Susan Knopf of the Whole Family Team, Shoalhaven of the Illawarra Shoalhaven Local Health Network also prepared a report dated 19 March 2013 (exhibit R). This Team had been dealing with the plaintiff's family problems since 25 October 2013. The team identified these issues: "• Children exposed to significant domestic violence • Parental substance abuse (Buck – alcohol and cannabis; Jade- Cannabis) • Parental Mental Health issues: Buck – Depression, Anxiety; Jade – maladaptive personality traits." About the plaintiff the report says this: "Substance use: Buck has remained abstinent from alcohol and cannabis with the exception of two brief relapses – one on weekend leave from rehab and one over the Christmas holiday period. Buck is compliant with regular random urine drug screens. Buck also attends weekly AOD counselling with John de Casanove from Shoalhaven Community Drug and Alcohol. Buck admits that his alcohol and cannabis use was out of control in the period immediately prior to FaCS involvement with the family. He attributes this increased dependence of substances to an acute crisis in their relationship. Buck appears to be showing increased levels of insight into the relationship of his drinking and drug use on his potential for violence and is accepting that he needs to remain abstinent from drugs and alcohol. Mental Health issues: Buck has been re-initiated on psychotropic medications to assist in relieving his ruminating thoughts and insomnia. Buck was chronically suicidal and dysphoric when we began working with the family. However recently Buck's mood and mental state has improved. He is not currently constantly contemplating suicide and he is not acopic and overwhelmed by despair. He has resumed casual work. He is being more self caring in terms of diet and exercise and his appearance is less dishevelled. Anger Management: WFT has been engaging Buck in Cognitive Behavioural Interventions around anger management. As well, we have explored drug and alcohol use and its relationship with violence. Buck has also stated that despite having recently had "a few very bad weeks" in his relationship with Jade, he has adopted strategies to control his anger and states he has walked away and not raised challenging issues with Jade until he has gained control of his emotions. Parenting: WFT does regular interventions with families based in their family home and consequently has the opportunity to closely observe the home environment and the interactions between parents and children. Buck has shown himself to be very nurturing and loving towards his children. Buck has always been very attentive and consistent in his parenting. The family home is always pleasant and child friendly. Prior to this crisis his relationship with Jade, Buck worked long hours in his own business as a carpenter in an effort to provide for his family. He spent the weekends with Jade and his children and engaged in family activities. Buck has shown considerable insight into the impact of domestic violence on his children. He has expressed high levels of remorse over his previous aggressive and violent outbursts which he was described as "inexcusable". Buck has shown a genuine desire to engage in confronting self examination in an effort to change." The summary of this report is: "Buck and Jade have shown insight into the impact of their conflict and substance use on their children. They have both displayed high levels of remorse about their actions and have been eager for assistance to find a resolution to their problems. They have articulated a high degree of insight and willingness to change. Buck and Jade have co-operated with services in an effort to make positive change in their lives to improve the safety and wellbeing of their children and achieve improved levels of parenting maturity. Buck and Jade have begun to acknowledge and address their significant interpersonal difficulties which will require continuing long term engagement with therapeutic work to achieve resolution and provide safety for their children." These last two positive reports highlight the extent of the failure of the plaintiff in breaching his undertaking to the Children's Court. The timing of the loss of the plaintiff's children to both the plaintiff and Jade is evidenced by the fact that his last drug screening was on 15 April 2013 (see exhibit HH). 1. On 7 May 2013 the plaintiff commenced a "Managing Strong Emotions Course". This involved 6 sessions, ending on 11 June 2013. During this period the plaintiff was reviewed by Dr Hong on 4 June 2013. The doctor's report is this: "As you know, Buck's children were removed by DOCS 8 weeks ago, due to his partner's father making statements to DOCS. He has been unable to work, due to various court appointments and feeling unpredictable. He is doing anger management, see psychologist and D+A. He is living in his car 3nights/week. He reported abstinence from drugs and only 2 cans caffeine/day. He reported more unstable moods, which he feels is "situational". His sleep is good. His mental statement did not reveals [sic] signs of a major psychiatric disorder. He denied recent risks. Suggest: maintain valproate 1000mg nocte review in 4-6 weeks I would not recommend adding or reducing medication at this stage, unless further changes in mental state occurs [sic]." The plaintiff returned to see Dr Hong 6 weeks later, on 23 July 2013. Dr Hong's report of that date is this: "Buck has returned to living with his partner. DOCS evidently has decided to place his children's custody with his mother. He is completing the DOCS programs and reported no recent behavioural disturbance. He reported minor benefit from anger management course. He remained abstinent from ETOH and substances, but uses 4 caffeinated drinks a day. At times I advised him to reduce to less than 2-3/day. He is active, regularly participate in gym and martial art, and intends to work in a weeks time, but does not think he could maintain work until DOCS program is completed. MSE: looks well and no evidence of major axis I psychiatric disorder. Imp: no evidence of bipolar disorder or melancholia, however a brain vulnerability existed and possible temporal lobe pathology. Suggest: reduce epilim to 500mg nocte, then cease in 4 weeks. Repeat EEG review in 3 months to use zyprexa 5-20mg, for 1-2 weeks courses, when required for crisis intervention." 1. The plaintiff maintained in evidence that he had been drug free from 20 August 2012 and also alcohol free from that date except for the lapses recorded on 12 October and 28 December 2012, until a further alcohol lapse on 15 October 2013. He also said he remained off work from 20 August 2012 until the collision on 16 October 2013 and since that time. He did not work in 2013, prior to the collision, because of a "couple of reasons" (T121.47). These were: "One of the reasons was urines, drug urines, I had an hour ... from the phone call ... to be at the pathology [collection point] within an hour otherwise it would come up as a fail and other reasons were because ... I had to do the domestic violence course, which was two days a week and a parenting course. It would have just been inconvenient to a builder." On 15 October 2013 the plaintiff completed a 10 or 11 week domestic violence course which the Probation and Parole Service (or Community Corrections Service) had required him to attend at Nowra, twice weekly, probably Tuesday and Thursday (T264.08 – 264.21). 1. The plaintiff did, however, do some voluntary carpentry work after 19 August 2012, Through his sport of karate, the plaintiff had met Mr Cameron McMullen, a quadriplegic, who lived at Kings Point (near Ulladulla). The plaintiff had done voluntary work for Mr McMullen before the plaintiff learned of his partner's infidelity. He completed the work sometime later. The work (which was extensive) is described at T124 to T126 and photographs of it are exhibit NN. The plaintiff's experience riding motorcycles 1. This subject was canvassed in both evidence-in-chief and in cross-examination. The plaintiff has never held a motorcycle rider's licence. He has never owned an on-road motorcycle. He had been riding off-road motorcycles since age 8 years. Until he purchased his off-road motorcycle he rode machines provided to him by friends. In 2007, when he was 19 years old he purchased his first off-road motorcycle. This was the machine he was riding at the time of the collision. The plaintiff's motorcycle was black. In the report of the expert, Mr Simon David Parker, it is referred to merely as "the black bike". In the pleadings, par 1, it is described as "a black 2007 Thumpstar M50 140 Motorbike." That pleading is admitted. In his opening, Mr Stone SC told me that "Thumpstar" was an American brand, but the plaintiff's machine might have been an Asian copy. The plaintiff gave this evidence (T139): "Q. The off road motorcycle involved in the accident has been referred to as a Thumpstar...? A. Yes Q. Are you aware of what Thumpstar is or who they are? A. I believe that's a different brand. The brand of the bike in the accident, my bike, is M50, Chinese thing but, yeah – so it's not actually a Thumpstar." The plaintiff had been riding this motorcycle since 2007. This was a "recreational activity" (T139.01). The plaintiff rode the machine "sometimes weekly but generally monthly" (T140.03). As to his capacity to ride this motorcycle, the plaintiff gave this evidence-in-chief: "Q. In terms of your capacity to steer and control the motorbike, how would you categorise your degree of experience in controlling it? A. Much more than capable. 1. It was in the defendant's interests to establish the plaintiff's expertise as a motorcycle rider. The plaintiff was willing to oblige the defendant in this regard. Consider this evidence, commencing at T186.39: "Q. Mr Cooper, would it be accurate to say that as at the date of your accident, you were a very experienced motorcycle rider? A. Yes, it would. Q. And would it be accurate to say that at that date you were a very skilled motorcycle rider? A. Yes, it would. Q. Would it be accurate to say that at that date, you were very competent in riding motorcycles in all sorts of road conditions? A. Yes, it would. Q. Did those road conditions include riding on bitumen? A. Yes. Q. Riding on gravel roads? A. Yes. Q. And riding on off road? A. Yes." and recommencing at T188.10: "Q. But you understood how a motorbike worked, in terms of turning, didn't you? A. Yes. Q. You understood that in order to swerve or turn a motorbike, you transferred your weight? A. Yes. Q. And you understood that if you transferred your weight quickly, the bike would respond quickly? A. Yes. Q. That was something that you knew at the time of this accident? A. Yes." In short, there is no reason to doubt the plaintiff's competence as a motorcycle rider, if he were sober. Mr Timothy Lamont 1. Lamont was born on 14 January 1993. That date is not given in the oral evidence but can be found at T3.09 where I was given the date in order to make an order under s 77 of the Crimes (Administration of Sentences) Act 1999 as Lamont was, during the hearing, an inmate of the South Coast Correctional Centre at Nowra. He was called by the defendant and gave evidence by videolink on Thursday 2 June 2016. Unfortunately, Mr Stitt QC (who with Mr B. Wilson appeared for the defendant) did not adduce his age or date of birth. If I be allowed to rely on his date of birth, he was aged 20 years at the time of the collision. If I be not so allowed, I merely point out that he appeared to me to be a number of years younger than the plaintiff. In any event, the parties admitted by consent hearsay evidence that on the day of the collision, Lamont was 20 years old: see [76] below. Lamont's life partner is Ms Cassie Maria Bates. At the time of the collision they had one daughter, Chloe Lamont, who was aged 19 months. 2. At the time of the collision he was the holder of a motorcycle rider's licence (T318.50). He had held that licence for 3 or 4 years (T319.07). He had been riding motorcycles since age 13 to 14 years. He had ridden both on road and off road. He went on to say this (T316.03): "Q. Would you regard yourself as an experienced motorbike rider at the time of the accident? A. Yeah, you could say that. Q. Were you able to control a motorcycle under riding conditions? A. Yeah. Q. Were you a skilled motorcycle rider? A. What do you class as skilled? Q. Well, somebody who is competent and capable of riding safely? A. Yeah, I could - yeah, I'd say so. HIS HONOUR Q. Down here on the south coast, Mr Lamont, I take it there's lots of riding through the forests and the bush, is there? A. Yeah, yep. Q. Often you're met, when riding through the forest or the bush, hazards that you don't meet on a normal road? A. Yep. Q. You'd learnt to cope with those hazards? A. Yeah, yep. Q. So you probably had - would you agree that you may have been more experienced than a motorcycle rider who only rides on roads? A. Yeah, yeah, you could say that." Again, in short, there is no reason to doubt Lamont's competence as a motorcycle rider, if he were sober. However, it is common ground in these proceedings that he was not sober at the time of the collision the subject of these proceedings. 1. The motorcycle which Lamont was riding at the time of the collision was yellow. In Mr Parker's report it is described as "the yellow bike". In the pleadings, par 4, it is described as "an unregistered 1998 Suzuki RM80 motorbike." That pleading is admitted. In his opening, Mr Stone SC merely described it as a Suzuki. The evidence describes this machine as Lamont's (T311.27). There is no suggestion that Lamont was unfamiliar with this machine or this type of machine. Tuesday, 15 October 2013 1. Both the plaintiff and Lamont have very vague recollections of this day and the subsequent morning. For what these two men were doing I am dependant on these vague recollections and on the evidence of Lamont's partner, Ms Bates. I feel confident in relying on Ms Bates' testimony. There is no real reason to doubt it. Mr Stone SC suggested that her estimates of times when things occurred may have been inaccurate or merely reconstructions, but when those estimates can be checked they are found to be valid, as I shall endeavour to show. 2. As stated in [39] this day was the last day of either an 11 week (T111.33) or a 10 week (T261.24) domestic violence course at the Probation and Parole premises in Nowra. The commencing and finishing times of the final session are a matter of conjecture, although it appears that morning tea was provided (T263.20). Lamont also attended this course. They had not been known to each other before. At first the plaintiff did not talk with Lamont (T262.15) as there were "quite a few of us in the group" but they became friendly towards the end of the course. To save money, the plaintiff engaged in "car pooling" (or perhaps ride sharing) with another man attending the course, Michael from Ulladulla. The plaintiff drove his vehicle from Lake Conjola village to the intersection of LCER and the Princes Highway where he parked his car and was picked up and then driven to Nowra (T111, T134, T267). On this final session of the course, Lamont told the plaintiff that Lamont and his family were moving house that day. Lamont had lost his driver's licence so someone else would have to drive Ms Bates' car, with a box trailer. The plaintiff volunteered to help and that offer was accepted, but there was a condition: the plaintiff would need a lift back to Lake Conjola after assisting with the move, as the car pooler, Michael, would not be available to provide a lift hours after completion of the course. That lift was offered. There was no discussion of this arrangement prior to 15 October. 3. According to Ms Bates' evidence, she picked up both Lamont and the plaintiff at about 12.30pm. She and Lamont had been living in Sanctuary Point (T327.19) and were moving to West Nowra. However, "everything was in storage" at Bomaderry and the moving on this afternoon was between Bomaderry and West Nowra. That is consistent with the plaintiff's recollection (T135.05) that the move was within Nowra, as greater Nowra is a conurbation of Bomaderry, North Nowra and Bangalee, north of Shoalhaven River, and Nowra, Worrigee, South Nowra and West Nowra, on the southern bank. Ms Bates and Chloe did not participate in moving the family's effects. They stayed at the new house (T328.11). The plaintiff drove Ms Bates' vehicle with Lamont in the passenger seat. According to the plaintiff, they made 3 or 4 trips (T135.22). Ms Bates believed that the moving was completed at 4.30pm ("I think" – T328.32). Ms Bates received some happy news that afternoon, making this a special day for her: she was four weeks pregnant. This evidence was given (T328.37): "Q. After that movement of furniture was completed, what happened at the house with Mr Lamont and Mr Cooper? A. Well, on the way back, like, the last load, I rang Tim and I said, "I'm pregnant," and he's ... he's turned to Buck and he's like, "This is something to celebrate." So then they got a case, I can't remember what case they got but they got a case of beer and then they come back to my house and they were drinking." In chief, the plaintiff told me that he believed it was a local beer and he drank 4 or 5 bottles of it (T136). When asked why he drank the beer (contrary to the stipulation of FaCS) the plaintiff said (T137.12): "Just being stupid. I helped him move and I had a couple of beers and just, I ... have no excuses." In cross-examination, the quantity of "small bottles" became "roughly four beers" (T270.19). 1. Ms Bates drove herself, Chloe, Lamont and the plaintiff to the plaintiff's residence at Lake Conjola. She believed that she left Nowra on this journey "about 6.30, 7.00"pm (T328.50). The box trailer was still attached to her car. Before they left Lamont put his yellow Suzuki motorcycle on the trailer. Both the plaintiff and Lamont could recollect that they planned to go riding the next day. The plan obviously called for Lamont and his family to stay overnight at the plaintiff's residence. On the journey to Lake Conjola a stop was made at a bottle shop in the village of Wandandian and a bottle of vodka and a bottle of either lemonade or lemon squash, to mix with the vodka, were purchased. It is likely that the vodka was purchased by Lamont. The two men were regular beer drinkers, but the evidence makes it abundantly clear that the plaintiff's spirit of choice was bourbon, and vodka was not his favourite drink (T143.04). Furthermore, Lamont had great news to celebrate and owed thanks to the plaintiff for his assistance in the moving. Ms Bates believed that they arrived at the plaintiff's residence at 7.30 or 8.00pm or later (T329.34). If one overlooks "or later" one can see that the length of the journey from West Nowra to Lake Conjola was roughly one hour, including a stop at Wandandian. At T113.02 I advised the practitioners: "My Associate went onto the internet and the Local Court at Nowra to Lake Conjola is a distance of 58.3 kilometres and takes 47 minutes to drive at the speed limit." Lest I be accused of doing what I constantly enjoin juries not to do, the following should be noted: 1. this information was imparted to the practitioners because of a request by the plaintiff that the Court take a view of the collision site; 2. no one suggested that the information was erroneous; 3. it is entirely consistent with the length and time of the journey I undertook to attend the view; 4. it is consistent with publicly available maps; and 5. it is a matter of which I can take judicial notice: Butt v Liebherr Australia Pty Ltd [2015] NSWDC 3; (2015) 19 DCLR (NSW) 346 at [11]; Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427. I can therefore easily accept that the journey from West Nowra to Lake Conjola with a stop at Wandandian would take about one hour, and, therefore there is validity in Ms Bates estimate of the time between arrival and departure. The plaintiff had no recollection of this journey. In fact, he only has memories of two events after consuming beer at West Nowra. Lamont said they arrived at Lake Conjola in the dark, but whether Lamont has any actual recollection of events after the moving was completed is a moot point (see T320.01), an issue to which I shall return later. 1. When the party arrived at the plaintiff's residence, Jade was not present. She was at work. Ms Bates was not to meet Jade until she came home from work (T329.38). Ms Bates gave evidence that Lamont and the plaintiff sat at the table drinking vodka and that she sat on the lounge with her daughter watching television. The plaintiff told me in his evidence-in-chief that Jade had an apprenticeship as a chef working in a restaurant called "Ceto" in Ulladulla (T112.16). A little later he told me that Jade could work "split shifts" i.e. a luncheon (or morning) shift, then a break for "an hour or so" and then a dinner (or afternoon) shift. If she worked a dinner shift mid-week she would come home "[v]ery late, anywhere from 10.30 to 12.00 or 12.30" (T141.36). 15 October 2013 was not in a school holiday period. One would not expect a restaurant in Ulladulla on a Tuesday night to be as busy as later in the week e.g. Friday or Saturday evenings. One might expect that Jade would arrive home on such a Tuesday night nearer to 10.30pm than midnight. Ms Bates said that she thought that Jade came home "about 10.30" (T329.48). This is another area where some cross-check can be made about Ms Bates' accuracy in providing times, and that accuracy appears to be good. It is common ground that a dinner of steak and chips was then prepared and served. One of the plaintiff's two recollections of this evening is this: "Q. What are the patches of recollection that you have? A. Cooking dinner, I remember quite reasonably clearly cooking dinner with steaks in the frying pan and my partner coming home from a split shift from work, taking over the ... cooking, yes." (T140.37) Ms Bates' recollection is merely of Jade's cooking steak and chips after she arrived home and after she had been introduced to her and to Lamont by the plaintiff. She thought the cooking occurred at about 11pm and that the meal was consumed about an half-hour later. During the meal Ms Bates and Jade consumed soft drinks whilst the men were still drinking vodka (T333.35). After the meal, Lamont and the plaintiff went to the shed at the plaintiff's residence, but what they did there the evidence does not disclose. However, they might merely have been preparing for their next activity. Before I turn to that subject, it is convenient to interpose three short topics. Lamont's alcohol consumption 1. Ms Bates was cross-examined about Lamont's drinking habits. The relevant evidence can be found between T338.27 and T339.11. A fair summary of her confusing evidence is that Lamont was a frequent drinker and when he drank he was a heavy drinker. Lamont usually drank beer and, although he was not a selective drinker, his usual spirit was vodka. Ms Bates admitted that when the men were drinking in Nowra she was not keeping count of what they were consuming. This evidence was then given: "Q. The beers were left behind in Nowra when you came down south, that's right? A. I don't think so, I think they took the beers with them because that's what Tim would do. Q. Well, you don't actually remember that, you're just recalculating that, if you say that's what Tim would do, you don't have any actual recollection, do you? A. No." A little later Ms Bates admitted that she didn't remember anybody drinking beer during the journey to Lake Conjola or at the plaintiff's residence. However, Lamont gave this evidence (T310.34): "Q. Can you remember having anything to drink when you were at Mr Cooper's house? A. Yeah, yeah. Q. What did you have to drink? A. Vodka I think and beer. Q. How was that consumed, were you consuming it together? A. Yeah, yeah. Q. Do you mean by that he was in your presence and you were in his presence? A. Yeah." Again, as I indicated at [49], there is reason to doubt Lamont's recollections after the moving was complete. However, if the memory of consuming beer at the plaintiff's residence is an "implanted" one, the only person who could implant such a memory was Ms Bates (T320.06), who could have forgotten that detail herself. Either way, it seems likely to me that Lamont did consume some beer at the plaintiff's residence and, therefore, it is quite possible that the plaintiff did so too. 1. After the collision, a blood sample was taken from Lamont at 8.30am. The following are facts admitted by a Notice to Admit Facts dated 11 May 2016 and a response dated 17 May 2016 (see exhibit F): 1. the blood sample taken from Lamont was allocated sample number, 707682, 2. upon testing sample number 707682, it was determined to contain not less than 0.107 grams of alcohol in 100 millilitres of blood, and 3. a blood testing certificate was issued by an analyst with NSW Health Pathology (Brett Fletcher) certifying that blood sample 707682 taken from Lamont was analysed and found to contain 0.107g/100ml. A forensic pharmacologist, Dr Judith Perl, prepared a certificate under the Evidence Act 1995, s 177 (exhibit 24) in which she calculated that the most likely blood alcohol concentration (BAC) of Lamont at the time of the collision (assumed to be "about 5.15am to 5.30am") was 0.156g/100ml. The relevant part of Dr Perl's certificate is this: "There was no specific information provided in relation to when the Accused commenced and ceased drinking. Based on the blood result at 8.30am and on the assumption that he had been "up all night drinking", assuming that he did not commence drinking before 10pm and he continued drinking until just prior to the collision, then at the time of the collision his BAC would have been within a range 0.114 g/100ml (based on the most likely rate of elimination of 0.015g/100ml/hour). However, given that the Accused was young (20 y old), the lower limit calculated is highly unlikely because his elimination rate is likely to have been much higher than the lowest elimination rate used to calculate the lower limit indicated. I have found in my research studies using young male subjects, an elimination rate which is around 0.22g/100ml/hour, whereas I assumed the lower end of the human range (0.01g/100ml/hour) in calculating the lower limits." There is evidence that Lamont was "up all night" (Statement of Mrs Wilma Maxwell, 22 December 2013, exhibit 25, [7]). In the same paragraph, Mrs Maxwell records that Lamont admitted that he was "drunk". It is clear from the evidence that Lamont had commenced drinking at about 4.30pm, a lot earlier than 10pm. However when drinking ceased is completely unclear: all one can find is that it persisted through the late meal. In any event, Dr Perl's methodology is to work backwards from the collected blood sample, applying the elimination rate to ascertain the BAC at a particular time, so that, whatever the pattern of drinking alcohol had been, the reading of 0.156 ought be seen as the reading at some time between 5.15am and 5.30am on 16 October 2013. Dr Perl went on to say this: "4. At a BAC of 0.114g/100ml and above, all people would be under the influence of alcohol to the extent that there would be impairment of driving ability, including impairment of skills such as reaction skills, lane-keeping or tracking ability, perception, judgment and decision-making, visual scanning and peripheral vision. At a BAC of 0.150g/100ml and above driving ability would be 'very substantially' impaired. 5. A young person, such as a 20 year old, would generally be expected to have less years of experience with driving and most likely less years of experience with alcohol than a much older driver and therefore a young person would generally be more likely to experience a greater degree of impairment at any particular BAC. This is seen in the crash data where it has often been noted that young drivers are over-represented in crash data (Staysafe Report 18, 1990) and young drivers aged 16-24 years had an increased risk (compared to middle aged drivers) for risk-tasking behaviours and conditions, specifically alcohol and drug use, speeding, fatigue and inexperience (Zhang et al., 1998). 6. Alcohol produces disinhibition and this in turn can result in risk-taking behaviour. Alcohol also produces effects on mood and a person may be more easily influenced by others in their company and other factors which distract from driving skills. 7. It has been established by research (Borkenstein et al 1964) that crash involvement significantly increases as the blood alcohol concentration increases. However, the relationship is not a linear one. In a more recent study, Compton et al. (2002) reaffirm this relationship between blood alcohol concentration and crash risk. In fact, Compton and his colleagues reported that at a blood alcohol concentration of 0.05g/100ml the risk of a crash is around 1.4 times greater than at zero BAC, at 0.08g/100ml it is around 2.7 times greater, at 0.100g/100ml the risk is around 4.8 times greater and at 0.150g/100ml the risk is around 22.1 times greater than at zero BAC. Specifically, at a BAC of 0.114g/100ml the risk is around 7 times greater than at zero BAC. 8. While there is impairment of driving ability at a BAC of 0.114g/100ml and above, the symptoms of intoxication displayed by a person are dependent on their experience with alcohol. Thus, a person who drinks heavily, regularly, or binge drinks regularly, will develop a significant level of tolerance to some of the effects of alcohol and may not appear as visibly affected as a person who is a social drinker despite there being impairment of skills performance. At a BAC of 0.114g/100ml I would expect a social drinker to display visible signs of intoxication including slurred speech, unsteadiness and increased clumsiness or impaired coordination and there would most likely be a smell of alcohol on the breath and most likely blood shot eyes." The reliability of Lamont's memory 1. On 7 April 2014, Lamont was interviewed by Sgt Robert Burlin of the NSW Police who appears to have been the officer in charge of investigating this collision. The interview was conducted at Nowra Police Station and was electronically recorded (T318.02), i.e. an ERISP. Mr Lamont admitted in cross-examination that he did his best to tell the truth at this interview. Question 43 of the ERISP was this: "Q. What's the last thing you remember prior to the collision? A. Um, Buck, Buck was helping me move in, move into our new place and um, my missus found out she was pregnant with our second child and that's about it really." Earlier, in chief, when irritated, Lamont had said that "All I know is what I've been told by the police." (T313.31). Hence, as I have earlier stated, one cannot rely on what Lamont had said about anything, after he commenced drinking, unless there are good grounds for doing so. The failure of the plaintiff to call his wife, Jade 1. I have already discussed the events of Tuesday 15 October 2013 and shall shortly turn to the events of the following day. I am really reliant on the evidence of Ms Bates in this regard. However, there was another, sober potential witness who could have been called to give evidence as to what occurred after 10.30pm on the Tuesday and what occurred prior to the collision: Mrs Jade Cooper, née Pritchard. The defendant served her with a subpoena to give evidence and she was in the precincts of the Nowra Court House during the hearing (T419). One would expect her to be called by the plaintiff, rather than the defendant. The inference must be drawn that her failure to give evidence would not have advanced the plaintiff's case. I, therefore, must give substantial weight to Ms Bates' evidence, for events after 10.30pm on the Tuesday as, if she said anything that was incorrect, one would expect Jade to have been called to contradict Ms Bates' evidence. Wednesday, 16 October 2013, the early hours 1. Ms Bates gave evidence that after going to the shed for a while, Lamont and the plaintiff went fishing. After that, Ms Bates went to bed at about 1.00am or 1.30am. One recollection that the plaintiff has is of finding Jade asleep on the couch and that he "picked her up like a baby" and of placing her on the bed (T142). The plaintiff had no idea when this occurred. Had Jade been staying up for the plaintiff to return? Did the plaintiff do this when he returned from fishing? Both are possible, but conjectural. Ms Bates' next recollection was being awoken by Lamont. This could have occurred at 2.30am (T335.02). Ms Bates said this (T332.12): "Tim came and woke me up cause there's a big kangaroo and he wanted me to see it. So I went out the front and they were trying to chase it on foot and I was just like, "You are idiots," so I went back to bed." She then confirmed that it was Lamont and the plaintiff who were chasing the kangaroo. When asked to describe their demeanour she said they were "happy". She also described them as "yahooing", but not loud enough to wake the neighbours. When she went back to bed, she was not joined by Lamont (T335.12). 1. When asked what was the next thing that occurred Ms Bates said this: "I heard them take off on their bikes and then that's when I went to sleep fully" The evidence then continued: "Q. Just stopping there, what did you actually hear when you say they took off on their bikes, what did you hear? A. I heard them start it and then ride off to the road, like up the road. Q. Then you went back to sleep? A. Then I passed out, yeah. Q. Approximately when was that, would you know? A. No, I don't know. Q. After you heard the bikes and heard them take off on your bikes, what was the next thing that happened? A. The next thing that happened was Jade heard a helicopter and was like running around the house going no, no, no, no, like crying and everything and I was like, "What's wrong? What's wrong?" Then I think she rang - no Buck's mum rang her and said, "Have you seen Buck or something?" and then that's' when I got my daughter and like went out the front and there was the fire brigade blocking off the road and stuff. Q. You I take it didn't hear any noise of a collision or anything of that kind? A. No. Q. But you heard the helicopter, did you? A. Yes, in the morning. HIS HONOUR Q. What woke you up, was it the noise of the helicopter or was it Jade? A. It was Jade. Q. Jade being what, somewhat hysterical? A. Yep." Ms Bates was awakened by a noise which, obviously with the benefit of hindsight, was generated by the plaintiff's and Lamont's starting up their motorcycles and riding away from the plaintiff's residence. The driving in question is alleged in par 1 of the statement of claim to have occurred "at about 5.15am" and that pleading has been admitted. The distance between plaintiff's residence and the collision site is very small. The noise identified by Ms Bates would have been within a few minutes (at most) of the collision. She then fell into a deep sleep from which she was awakened by Jade's distress initiated by hearing the noise of a helicopter. The ambulance helicopter left its base at 6am and arrived "at the patient" (the plaintiff) at 6.40am. I do not know where the helicopter landed or how long it took the air ambulance officers to get to the plaintiff, and the helicopter could have been hovering for some time over Lake Conjola village looking for a landing area. Ms Bates could have been awakened around 6.30am, but that was long after the collision. The collision scene 1. The collision site is described briefly in [1] above. The relevant section of LCER runs east to west, from the actual entrance of the Lake to the sea to the Princes Highway. The Milham Street crossroad is at the eastern end of this section of LCER and Norman Street is at the western end. The plaintiff's then residence was 12 Milham Street which is on the north east corner of the intersection of that street and LCER. The even numbered blocks of land are on the southern side of LCER. That on the south west side of the intersection with Milham Street (i.e. diagonally opposite the plaintiff's residence is No. 120. The last block on the southern side of this section of LCER is No. 162. The corresponding numbers on the northern side of LCER are No.119 and No. 165. On the southern side of the section between the driveways to No. 148 and No. 150 is a power pole and an electric street light. About 6 metres to the east of this light pole there is a slight bend in the road to the south, i.e. for a motorist travelling east, a bend to the right and for a motorist travelling west, a bend to the left. The gradient of the road is downhill, from west to east, a gentle gradient until just before Milham Street when it increases markedly. The gentle gradient is shown on the survey (exhibit D) made by the police expert, Mr Parker. The steeper gradient is on a piece of LCER not shown on the survey. Most of this section of LCER is kerbed and guttered. It has a bitumen sealing typical of most suburban roads. All relevant parts of this section of LCER have a true central camber. That camber is described visually in 8 cross sections of the road contained in the survey. There is no suggestion that the collision occurred because of some defect in the road's design or construction. The centre line of the road was marked. The markings have subsequently been changed. Those existing at the time of the collision can be seen in the photographs, exhibit A, numbered 01 to 14 for a motorist travelling east, and numbered 15 to 28 for a motorist travelling west. The bend in the road and the adjacent power pole with street light are clearly seen in these photographs, numbers 08, 09, 19, 20 and 21. 2. As I have already stated, the parties agree that the collision occurred during riding "at about 5.15am." During the opening of Mr Stone SC, who appeared with Ms S Warren for the plaintiff, Mr Stitt QC volunteered this information from GeoScience Australia (T37.50 to T38.10): (i) at 5.15am the sun was 12o below an ideal horizon; (ii) nautical twilight commenced at 5.17am; (iii) civil twilight commenced at 5.48am; and (iv) sunrise was at 6.14am. Mr Stone advised me that he was happy to agree with the facts read out from GeoScience Australia (T38.21). There is no evidence of there being any lunar or other celestial light. I accept that it was "dark", that the only lighting was that provided by street lighting. A view was taken on Wednesday 1 June 2016 at 6.45pm. I made some notes which were provided to counsel and were tendered without objection by the plaintiff: ex RR. When the view was conducted it was "dark": the sun had long set and twilight had ended. There was no lunar or celestial light. There was very light rain (drizzle) throughout the view, indicating to me a cloud cover obscuring any natural light. No lighting from any house along the relevant section of LCER illuminated the roadway. In the notes made at the view: (a) the datum is the power pole with street light identified in [57] above, and (b) "p" means a pace stepped out by my Associate, seeking to approximate 1 metre. The relevant notes are: "1. The intersection of Norman St and Lake Conjola Entrance Way ("Way") is on the crest of a hill. The Way eastward of this intersection is straight until it approaches the datum which is on the inside of a curve to the right (south). There is a good, well-illuminated view from the intersection of Norman St and the Way eastward along the Way to the curve marked by the datum. This section of the Way has a modest angle of descent to the datum. 2. 35p east of the above intersection is a pole and light on the southern side of the Way. On reaching this position the curve of the Way to the right (south) is clear and there is a view of the Way beyond the datum. 3. 98p east of the intersection (just west of the border of Nos 154 and 152) there is a clear view around the right hand curve to the next crest. 4. 140p east of the intersection of Norman St and the Way is the datum. At this point the way levels out and is relatively flat until it reaches the next crest which appears at this point to be at the position of the second pole and light beyond the datum. There is an unobstructed, well-illuminated view to the next crest. 5. The pole and light at the next crest is 116p beyond the datum, i.e. 256p beyond the intersection of Norman Street and the Way. 6. At the next crest there is a short but relatively steep descent to another short flat length before reaching Milham Street. A vehicle in this section of the Way is not visible at the datum until it crosses the crest 116p east of the datum 7. The first section of the Way on the northern side, east of its intersection with Norman Street, has no kerbing or guttering for about 20 metres but is kerbed and guttered from that point eastward. The northern side of the Way is well defined and illuminated for a vehicle travelling east along the Way to the datum. 8. From the crest 116p east of the datum, the whole carriageway is well-illuminated for a vehicle travelling west towards the datum." I ought to explain that the documents generated by Mr Parker refer to LCER as "Lake Conjola Entrance Way" and I tried to described it in that fashion during the hearing, but, on returning to Sydney, after consulting road directories and other documents in this case, it appears that the correct name of the road is the Lake Conjola Entrance Road, hence the abbreviation used in this judgment. 1. The pole and light "35p east" of the intersection of LCER and Norman St is not shown in the photographs, exhibit A. It was on the right before photograph 01 was taken. The view described in par 3 of the notes of the view, at 98p from the intersection with Norman Street, is the view shown in photograph 06 of exhibit A, the plaintiff's black motorcycle lying on the eastern side of the driveway of No.52, which driveway can also be seen in exhibit B (an aerial photograph) which clearly shows the proximity of that driveway to the boundary between No.152 and No. 154. The view described in par 4 of the notes of the view is that shown in exhibit A, photographs 09 and 10. The next power pole and streetlight at 116p beyond the datum pole and light can be seen in the far distance of photograph 10 and also in photographs 11, 12, 13 and 14. The crest beyond that power pole and street light can also be seen in that last set of photographs. The observation made in par 6 of the notes of the view is not quite correct as the crest is beyond the second pole and light, so a vehicle travelling east would be visible a short distance before the pole and light i.e. roughly 120 metres from the datum pole and light. The only further point to note is that visibility for a motorist, or a rider, travelling west was just as clear as that for a motorist or rider travelling east, as pointed out at T305. The question of visibility at night, in the "dark", can be shortly described as perfectly adequate to illuminate the entire stretch of LCER relevant to the collision. A motor vehicle, including a motorcycle, could be seen by any other motorist or rider even if neither vehicle was burning any light or reflecting any light and vehicular light was not necessary to traverse this section of LCER at night. The motorcycles 1. I have already pointed out that the two motorcycles involved in this collision were off-road motorcycles. Neither had any headlight, taillight or turning indicators, no lighting at all. Neither had any reflector. The plaintiff's motorcycle was black in colour, but not without some contrasting colours. Photographs of the plaintiff's machine can be found in exhibit A, numbered 111 and 120 to 139. It had a white "face plate" which I understand is technically called a "number plate" but it was much larger than a motorcycle registration plate. It had two stickers attached to it, but showed mainly a white area. On a length of bar, between the two handle bars, immediately on front of the rider was black padding bearing, in large white letters, the name RENTHAL. On numerous places on the machine was the logo (bright green vertical stripes) and name of MONSTER ENERGY, the first word being white and the second word, smaller, being bright green. There are other contrasting markings and colours on the machine. 2. The plaintiff was wearing a helmet. Photographs of it in exhibit A are numbered 112 to 119. It has contrasting colours of black, gray and white. The evidence does not disclose what the plaintiff was wearing at the time of the collision. However, there are sufficient contrasts of colour on both the plaintiff's motorcycle and his helmet to rebut any suggestion that the plaintiff was in any way "disguised" or made less visible than the plaintiff on his motorcycle ought to have been. 3. Lamont's motorcycle's basic colour was canary yellow. Photographs of this bike are numbered 93 to 107 in exhibit A. The front fender, radiator shroud, petrol tank, seat and rear fender were all yellow. On the left radiator shroud was a decoration in red and blue, best seen in photograph 103. The side guard on each side was white bearing in large black numerals, the number 18. This machine also had a large white number plate bearing, in black, the number 18 (photograph 92). 4. Lamont was not wearing a helmet. He was described by Mrs Wilma Maxwell, who came to his assistance after the collision, as wearing "a grey jacket and blue jeans." Whilst those colours are not bright, Lamont's motorcycle certainly was and could easily have been seen by any motorist keeping a proper lookout, in the dark, given the street lighting on the relevant section of LCER. The collision 1. Paragraphs 1 to 7 of the statement of claim have been admitted. They are these: "1. At about 5.15am on 16 October 2013, the Plaintiff was the rider of a black 2007 Thumpstar M50 140 motorbike ("the Plaintiff's motorbike"). 2. The Plaintiff was riding in a generally westerly direction along Lake Conjola Entrance Road, Lake Conjola in the State of New South Wales. 3. Lake Conjola Entrance Road was a "road" within the scope of the definition set out in Section 3 of the Motor Accidents Compensation Act 1999 ("the MAC Act"). [The definition within the MAC Act referring to Section 4(1) of the Road Transport Act 2013.] 4. At the same time, Timothy Lamont, was the rider of an unregistered 1998 Suzuki RM80 motorbike "the Suzuki motorbike"). 5. At a point about 150 metres east of Norman Street, Lamont on the Suzuki motorbike has crossed to the incorrect side of the road. 6. Lamont on the Suzuki motorbike has collided with the Plaintiff on the Plaintiff's motorbike. 7. The collision was on the Plaintiff's side of the road." In correspondence exchanged between the solicitors, Slater and Gordon of 19 May 2016 and Holman Webb of 20 May 2016, the parties agreed that: "(a) ... the point of impact between the two motorcycles was about 1.5 metres from the centre line into the westbound lane (the Plaintiff's lane of travel). This is the southern side of the roadway. (b) … it was the left side of each of the two motorbikes that collided." 1. At [56] above, I described the noise that awakened Ms Bates before she fell into a deep sleep. Mr Robert Lonsdale was living at No 123 LCER at the time. As I pointed out at [57] the plaintiff's residence was on the north east corner of the intersection of LCER and Milham Street. On the north west corner of that intersection is No. 119 LCER and immediately to its west, on the northern side of LCER is No. 123. Mr Lonsdale was a postman. He normally left home for work at 5.00am. On this day he was on light duties and was leaving home later. He made a statement to Sgt Burlin on 24 November 2013. With agreed amendments it contains this: "3. I normally leave for work at 5am. This day I left at 5.30am/5.40am because I am on light duties at work. 4. As I was getting out of bed I heard 2 motorbikes starting up. I heard one of the bikes take off. You could hear the remaining rider revving the bike. 5. This lasted for about 30 seconds and this bike then took off. I didn't hear any sounds after that. 6. When I left home about 5:40am I drove up the road and came across the two boys lying on the road. They had blankets on the one furthest up on the right. People were around helping. I spoke to Derek. I told him something. (I asked if he wanted any help, he said the ambos on the way. The boys were that badly smashed up they couldn't move them.) 7. When I spoke to Derek I saw one rider on the left, he had no helmet on and lying on the road. There was nothing I could do so I left for work. Q. How dark was it when you left home? 8. You can see but the sky was dark. I could have driven without my lights. I could just see people standing at the top of the road. Q. What direction did the motor bikes travel? 9. I thought they went up the hill (indicating travelling in a westerly direction.) Q. Is this this same direction you travelled when you left home that morning? 10. Yes. Q. Did both bikes travel in a westerly direction? 11. Yes. Q. What do you know about motor bikes? 12. I am a postie, I have a road bike, a dirt bike. I have been riding bikes for the past 20 years. Q. Did you know either of the riders involved in the collision on the 16/10/13 on Lake Conjola Entrance Road? 13. I only know him to say hello, I don't know him that well. He lives on the far corner a couple of doors down. I know his name as Buck." The reference to "the one furthest up on the right" in par 6 of that statement is a reference to the plaintiff. 1. Mr Gary Sandilands was living at 161 LCER. His residence was on the northern side of LCER, the third residence east of its intersection with Norman Street. He gave a statement to Sgt Burlin on 23 November 2013. With agreed deletions it contains this: "3. Approx 5:30am we woke to the sound of a bike heading in a westerly direction on Entrance Road (indicating Lake Conjola Entrance Road). There was only one bike. It passed our house, it turned and accelerated back in an easterly direction, the Entrance Road. I had [sic, scil. heard] no further sound from the bike, except a gratting [sic] noise across the road. A minute or two later I heard someone call out "help me." We both got out of bed. My wife went out first whilst I got dressed." 4. I went outside and my wife pointed out somebody lying on the road, about 40 metres from our house, this was on my left hand side as I stood at the front of the house with my wife. 5. I saw a lady from across the road, exit her house and went to this body lying on the ground with a phone in her hand. I heard her say something (She said the ambulance is coming). I have no medical training so I stayed on the road and stopped traffic. 6. It was between maybe 12 to 15 minutes and two paramedic vans arrived and the Police arrived after that. Soon after that careflight was called. The rural fire brigade also arrived. 7. We didn't know there was a second rider involved. I only heard one bike. 8. I saw a white transit van, stopped on the other side of the road, about 75 metres away. He had headlights on and he put on a fluro shirt and I assumed he was directing traffic from the other side. I didn't know about the other rider and bike. 9. It wasn't until the second paramedic arrived and it got lighter that I realised there was a second rider involved. Q. Where was the rider that you saw situated on the road? 10. In the middle of the road. He was lying across the road." The person identified by Mr Sandilands in the last paragraph I quoted from his statement is also the plaintiff. 1. From these statements and the agreed facts and from what I shall soon describe it is clear that Lamont set off on his motorcycle at least a half minute before the plaintiff did. He drove west along LCER, past Mr Sandilands' house, No 161, and turned around west of that house, perhaps at the intersection of LCER and Norman Street, and then drove east. In the meantime, the plaintiff had driven off, west along LCER. As the plaintiff was driving west, Lamont was driving east. Lamont drove over the centre line of LCER, onto the plaintiff's side of the road, obviously crossing over the plaintiff's intended path, and they collided, the left side of each machine/rider striking the other machine/rider. Momentum carried the plaintiff further west and momentum carried Lamont further east. Hence, for Mr Lonsdale, Lamont was closer to him when he arrived at the collision site and the plaintiff was further up LCER, his landing on the northern side of the road. Hence, also, Mr Sandilands's being aware of only one casualty, the motorcyclist closer to the west, the plaintiff. 2. The collision scene was attended by Mr Simon David Parker, a civilian employee of the NSW Police Department, who arrived there "shortly after midday" (T409.04) on the day of the collision. Mr Parker was responsible for the making of the survey (exhibit D) and made a report, exhibit E, dated 18 July 2014. Mr Parker is attached to the Forensic Imagery Section of the Forensic Services Group within NSW Police. He is a qualified automotive mechanic awarded the certificate for Best Overall Student for his mechanical studies at Hornsby TAFE in 1999. He subsequently became a Crime Scene Officer in Collision Reconstruction in his present Section and Group. He has obtained from the University of Western Sydney the degree of Bachelor of Science, majoring in Forensic Science. He has attended many other courses and obtained many other qualifications from institutions in both Australia and the USA. There was no dispute about his expertise and he has the added advantage (as far as the Court is concerned) of being independent of the parties, his opinion provided to the NSW Police who were considering prosecuting Lamont. In addition to his report, Mr Parker gave oral evidence on 3 June 2016 in Nowra. I have no hesitation in accepting his evidence, which was uncontroverted. 3. Mr Parker was able to establish a point of impact. He gave this evidence: "Q. Did the spread of debris allow you to make an assessment of where the likely point of impact was? A. Yes, it did. Q. Is that contained within your report? HIS HONOUR: I don't think it is actually. WITNESS: I don't, I don't believe I've referred to it in the report, no. STONE: Yes. Q. If I can take you to the map. Based on the spread of-- HIS HONOUR: No, it's not a map, it's a survey. STONE: Q. Based on the spread of materials, did you estimate the point of impact to be? A. The point of impact – essentially when these vehicles have collided, the occupants of the vehicles have then from that point travelled to a location and slid along the roadway to their point of final rest. If we – to visualise an impact or a point of impact, there are no forces acting on these two bodies after the impact itself. So until they strike the roadway, they're essentially travelling outward from the collision. If we extend the trail from each of these occupants, you can tell – they essentially travel equal and opposite past where the incident, where the contact would have been made. Second to that, you can – obviously the vehicles themselves were also involved. The direction of travel of those whose vehicles out from the impact provides another – the line I guess you'd call it of, which I've used to reference to an area of impact. In terms of a location on this particular plan, the impact or my opinion of the impact is, there's a little piece of debris on the left-hand side of the marked debris, directly above the pole and light. So the point of impact or the area of impact, in my opinion, is around that location." Mr Parker marked exhibit D. The piece of debris which he marked is 1.5m south of the centre line of the road, when one uses a ruler and the scale on the Survey. It is 1.6m west of the pole and light used as the datum, that between the driveways of No. 148 and No. 150 of LCER. Patches of blood marked on the northern side of the road, west of the point of impact, indicate where the plaintiff came to rest. Patches of blood marked on the southern side of the road, just east of the commencement of the driveway of No. 146 indicate where Lamont came to rest. The motorcycles shown on the survey represent where the vehicles were placed, for the safety of other road users, after the collision had occurred. Mr Parker marked on exhibit D with a green highlighter where the plaintiff's machine had come to rest, close to the driveway of No. 152, and with a pink highlighter where Lamont's machine came to rest, near a patch of fluid on the southern side of the road, closer to the centre than the gutter, between the driveways of No. 146 and No. 144. 1. Mr Parker was able to calculate the speed of each motorcycle prior to the collision. There was no physical evidence at the collision scene to show that any braking occurred prior to impact. It should be noted that there is no evidence at all of any braking occurring prior to the collision e.g. someone's hearing the squeal of brakes or the blaring of horns. There are only 2 possible phases in which a lessening of speed could occur: "the wash off of speed occasioned by the accident itself and then what occurs after the accident" (T389.26). In his report, Mr Parker explained the theory he used (Momentum Theory) and the formulae he used and continued thus (omitting formulae): "5.2 Calculations 5.2.1 Vehicle Weights: The Vehicle weights have been provided by S/C Burlin and the provided weights are 50kg for the Black bike 80 kg for the rider and 70-80kg for the yellow bike and 75kg for the rider. 5.2.2 Angles of travel: The pre impact and post impact angles of travel have been taken from the scale survey 2898872 conducted by myself on the same day as the collision. The Survey plan shows the vehicle positions on the road at the point of rest. When vehicle 1 (Black) is set as 0 degrees it can be seen that vehicle 2 (Yellow) is at approximately 187 degrees. Once the vehicles have interacted with each other their angles change and the centre of mass of vehicle 1 moves out of the collision at approximately 357 degrees where the centre of mass of vehicle 2 moves out of collision at approximately 185 degrees. These angles are measured in relation to the initial heading of vehicle 1 at the time the collision has taken place and it can be seen that the respective angles are relatively small. 5.2.3 Post impact speed of vehicle 1: As vehicle 1 has decelerated to a stop after the collision it has deposited clear gouge and scrape markings as it has slid along the road surface for a distance of approximately 20 metres. In an effort to visualise a maximum possible speed for both vehicles the maximum researched book value for post impact speed loss will be utilised, a researched book value for deceleration for a motorcycle sliding on an asphalt surface of 0.48 will be utilised. None of these calculated speed losses post impact will factor in any secondary impacts as the speed loss through these secondary impacts cannot be quantified. An adjustment has been made for the grade of the roadway in the area of the slide which adds the 0.48 with 3.2% upward grade. Calculated speed loss from travel to final rest … 51 Kilometres per hour. 5.2.4 Post impact speed of Vehicle 2: The post impact travel of the centre of mass of vehicle 2 has been shown on the survey plan to be approximately 29.5 metres. The post impact movement of this vehicle can be seen to be wholly on the road surface. The same researched value of 0.48 has been utilised but has been factored down to compensate for the gradient of the roadway by 2.3% to 0.457. … S = 58.51 Kilometres per hour 5.2.5 Pre impact speed of vehicle 2: The following calculations will utilise equation 2 for a pre impact speed for vehicle 2 utilising the calculated post impact speeds, vehicle weights and angles of the vehicle interaction. … S2 = 60.2 Kilometres per hour 5.2.6 Pre impact speed of vehicle 1: The following calculations will utilise equation 3 for a pre impact speed for vehicle 1 utilising the calculated post impact speeds, vehicle weights and angles of the vehicle interaction. S1 = 52.68 Kilometres per hour 6.0 Discussion 6.0.1 The pre impact speeds of both vehicles appear to fit with the physical evidence and the evidence locations at the scene. When the speeds are calculated for the lowest possible speed from the researched sliding friction of 0.30, the associated vehicle speeds are approximately 42 kilometres per hour for the black motorcycle and approximately 47 kilometres per hour for the yellow motorcycle. This then gives a speed range for the vehicles of approximately 42 – 52 kilometres per hour for the black motorcycle and approximately 47 – 60 kilometres per hour for the yellow motorcycle immediately before impact. 7.0 Conclusion 7.0.1 Based wholly or substantially on the information available to me, my specialised knowledge and qualifications it is my opinion on the following points. • The Black motorcycle has been travelling at a speed of between 42 and 52 kilometres per hour immediately before impact. • The Yellow motorcycle has been travelling at a speed of between 47 and 60 kilometres per hour immediately before impact. • At the moment of impact the Yellow motorcycle has been on the incorrect side of the roadway for its direction of travel. " 1. In his oral evidence Mr Parker said that it was fair to characterise the interaction of the two as a "side swipe". He had calculated only a modest loss of speed as being caused by that collision (T389). The weights supplied to him by then Senior Constable Burlin were applicable to this phase only of speed loss and not to the final phase of speed loss, the interaction between the road surface and the motorcycle (T391.36). The final matter discussed with Mr Parker in chief was this: "Q. You have used at 5.2.3 a distance of the vehicle sliding along the road surface of 20 metres? A. Yes, that's correct. Q. What is the total distance that the vehicle travelled from what you have approximated to be the point of impact to where it came to rest? A. I'll just measure it. It's approximately 21 metres. Q. What is the extra metre? A. The extra metre is the travel of the cycle without leaving any physical evidence. So the scrape marks themselves are just short of 20 metres, which is obviously the figure I have used. The extra metre between the area of impact and where the first scrape touches the roadway is either where that cycle airborne or where it's in the process of falling to the road surface. So without any physical evidence, I cannot attribute any speed loss to that phase or that portion of travel. Q. Does a motorbike lose speed as it's falling over on its side, but still upright on its wheels? A. I haven't seen any research, but in a general sense a rolling wheel deceleration factor is extremely low. Q. In terms of the other possibility of it tumbling through the air, did you inspect the motorbike itself? A. I, I saw the motorcycle at the scene. I didn't inspect it with the sole purpose of obviously analysing the damage. So to answer the question, I did see the motorcycle at the scene, but I didn't inspect it thoroughly, no. Q. Have you since had the opportunity to look at photographs of it? A. Yes. Q. Having looked at those photographs, did you identify any damage that would be consistent with the motorcycle engaging in a tumble? A. Tumbles on a motorcycle are generally a very violent event and they will leave telltale evidence of engagement with the road surface. In a general sense this is where a lot of the components break away from the motorcycle. There was no extreme damage to this cycle. This cycle displayed damage consistent with simply falling over and sliding along the road surface." Mr Parker then told me that it was safe to conclude that, on the probabilities after the side swiping each bike fell on its side and then slid (T393.34). 1. In cross-examination, Mr Stitt QC explored possible causative factors in the collision. One of them was speed. A priori, speed is a factor in any collision as two stationary objects do not collide. However the point was made that the greater the speed, the higher the severity of the collision (T395.15). Mr Parker was also questioned about whether his determination of the angle of travel could affect the calculation of speed. Mr Parker agreed that it could. He was then asked to assume increased and decreased angles of travel, but these produced only minor, if any, changes in the calculated speeds. He was then asked how he calculated the angles of travel. This evidence was given: "Q. But how did you calculate the approach angle and the departure angle? What parameters did you use to arrive at those angles? A. Those angles are taken essentially from experience, from the debris, the scattering of the debris. The vehicle's post-impact travel is also influenced by their pre-impact travel. In the momentum, essentially you set one of the vehicles to a zero degree heading, so all of the angles are measured in relation to that zero degree for that particular vehicle. Q. Does it also depend upon a determination with some precision of the point of impact? A. The point of impact is a base for those measurements or the area of impact is a base for those calculations, yes. Q. Is it just the area or the point? Is there some difference between an area of impact and the point of impact? A. The point of impact is essentially determined to measure the rest of the angles or the travel from." Clearly the point of impact and the angles of travel are deduced from the spread of debris and e.g. gauge marks and are dependent on the witness's expertise, but I have no hesitation in accepting Mr Parker's experience and his opinions based on that experience and the physical evidence he observed at the collision scene. Mr Parker was then cross-examined as to whether either motorcycle "tumbled" but pointed out that there was no physical evidence to support that. Re-examination was much lengthier, but I do not need to canvass it. 1. I have no hesitation in accepting the point of impact determined by Mr Parker, the path of each motorcycle and of each rider after the collision, as described by him, and the pre-impact speeds of each motorcycle determined by him. The "researched sliding friction" used by Mr Parker in his primary calculations was 0.48 (see T392.08 and T391.12) and there is, in my view, no reason to apply the "lowest possible speed from the researched sliding friction of 0.30" as Mr Parker did in section 6 of his report, quoted above. Accordingly I accept that the plaintiff's pre-collision speed was between 52 and 53 kph and the speed of Lamont was just over 60kph. The relevant speed limit was 50kph (T39.47 – whilst not given in oral evidence, it was common ground between the parties). 2. The photographs (ex A) appear to have been taken by Mr Parker or a colleague of his. The photographs show two marked police cars, a red one blocking LCER at its intersection with Norman Street and a white one on the northern verge of LCER, west of the actual site. Another emergency service team was also present, likely to be local RFS because of a red coloured truck. Markers were placed on the road to indicate debris or other matter important to the CSOs. A photograph of each marker has then been taken to show what it marks. These markers are lettered A to W. There are then the photographs of the motorcycles which I have mentioned commencing with photograph number 141 and concluding with photograph 206 and another set of pictures of the roadway, from which the markers have been removed and yellow paint has been used to circle where debris was or patches of blood or fluid were and also lines have been marked to indicate scrape/gouge marks on the road surfaces, as well as arrow heads. One upright yellow marker remains in these photographs, not showing a letter, but an upright arrow, and it clearly indicates, to me, the point of impact described by Mr Parker. The photographs which best allow me to draw that conclusion are those numbered 153 to 155, 166, 167, 175, 180 to 182 and 187. Counsel ought to have attended to this when Mr Parker was called on 3 June 2016. Vehicle noise 1. I do not believe it to be controversial to observe that generally motor vehicles powered by internal combustion engines emit noise. The evidence in this case establishes that the two motorcycles involved in the collision emitted noise. Ms Bates was awakened by motorcycle noise (see [56] above), Mr Lonsdale heard the two motorcycles start up and "take off" (see [65] above) and Mr Sandilands and his wife were awakened by the sound of Lamont's machine, heard it drive past their house, No 161, make a U-turn and drive back eastwards (see [66] above). Motorcycle riders are, in general, not as well insulated from vehicle noise as are modern motorists, who sit in air-conditioned cabins. However, there is force in the submission of the plaintiff that the noise of Lamont's motorcycle would have been attenuated to some extent by the helmet that the plaintiff was wearing. The photographs of the plaintiff's helmet clearly show that it would cover the plaintiff's ears. However, Lamont was not wearing a helmet and therefore the noise of the plaintiff's machine ought to have provided to Lamont an audible cue of the approach of the plaintiff's motorcycle. The immediate aftermath of the collision 1. Unfortunately, I am not able to discuss liability at this time, as the defendant's attack on the plaintiff's credibility includes matters occurring subsequently. I therefore need to consider what has happened subsequently before making any finding about the plaintiff's credibility and turning to the issues on this matter. The immediate aftermath of the collision can be gleaned to a large extent from the evidence of Ms Bates which I quoted at [56], from the statement of Mr Lonsdale quoted at [65], and from the statement of Mr Sandilands quoted in [66]. Mrs Wilma Maxwell was staying at the time at the house of her sister-in-law, No. 148. She provided a statement to Sgt Burlin on 22 December 2013. Her statement contains this: "3. I awoke to a loud noise about 5:15am, went to have a look and my sister in law was already out the front door. It was quite dark still, we could see the bikes on their side. One person in the middle of the road and the other had ended up in the front of our house in the kerb. 4. We realized we would have to make oncoming traffic aware there were bodies on the road. So we each stood in the middle of the road facing in opposite direction to face any traffic. 5. A chap came along in a tradesman's Ute, he moved the bike closer to the gutter and told me something. (He told me to talk to the young man). He then went to the other more hurt person that my sister in law was standing with. 6. My young injured person had his foot propped up on the raised kerb. It was a bloody mess. We chatted, a lady from across the road brought a blanket and put it over him. 7. He said his name was Tim, he said "I'm drunk, the other person is Buck and we have been up all night. We decided to go for a ride. I am moving from Sanctuary point to Conjola. Can you ring my mum." 8. He gave me the phone number to me but I couldn't ring because there was no reception. The lady across the road went back inside to ring from her phone number. 9. He was in a fair bit of pain, he said "If somebody could let my mum know, she can ring my partner, she is expecting another child." 10. At one stage Tim said, "I am 20 years old." 11. The conversation was repetitious, as it was taking such a long time for the ambulance to arrive. He kept asking for assurance, by that he kept saying, am I going to be okay, I can't feel my foot, my leg hurts. 12. I talked to him to keep him conscious, he was in pain but he was quite lucid. 13. Eventually there were a number of ambulances, Police, rural fire brigade and eventually a helicopter. Q. How dark was it when you came outside? 14. It was pretty dark, it was well before sunrise. The street is not very well lit." Later in her statement Mrs Maxwell described Lamont's attire and repeated his admission that he was drunk. Lamont's injured foot was his left foot. She described the noise of the collision which awakened her as "like an empty truck going over a bump, like an impacting noise." 1. It is clear from the descriptions of Mr Sandilands and Mrs Maxwell that local ambulances attended the collision scene, one for the plaintiff and another for Lamont. Unfortunately, those ambulance records are not in evidence. The only ambulance record in evidence is that of the Air Ambulance (exhibit 18). That document records these times: "First contact 5.40 Depart base 6.00 At patient 6.40 Depart site 7.20 Arrive destination 8.20 Back at base 10.20" This exhibit is quite difficult to read as the transcript shows (T415 to T419). The "Clinical Information Given" includes this: "25 year [old] male motorbike rider (with helmet) high speed motor bike accident versus second motor bike plus ETOH". What I have transcribed as "plus" is the symbol + surrounded by a circle. It is used twice elsewhere in the document with the same meaning. ETOH is the usual, medical abbreviation for "alcohol". This indicates the compiler of the document (most probably a paramedic) believe that the plaintiff was affected by alcohol or that the plaintiff's alcohol consumption played a part in the "motor bike accident". It is not a reference to Lamont's condition. The destination to which the plaintiff was taken was the St George Hospital at Kogarah ("SGH"). 1. At the commencement of these reasons I pointed out that the plaintiff sustained "complex and life threatening injuries" which I shall soon describe. It should not be overlooked, however that, unfortunately, Lamont also suffered serious injuries. Like the plaintiff, Lamont was transported to SGH where he, like the plaintiff, was a patient for a considerable period ("a couple of months" – T324.08). He told me that he "hit his head" (T317.08) which could have been a serious injury as he was not wearing a helmet, but he did not believe that he had fractured his skull. He also sustained an injury to his left arm (T324.10) and to his left leg and foot (T324.19) and one will recall Mrs Maxwell's description of his left foot as "a bloody mess". Treatment at SGH 1. The plaintiff was admitted to SGH on 16 October and was discharged on 5 December 2016. His discharge was in fact a transfer to the Shoalhaven hospital at Nowra. The plaintiff underwent surgery on 5 occasions at SGH. The records of that institution would be voluminous. Only selected documents were tendered from those records. Care must be taken when reading them. For example, exhibit 20 is headed "Discharge Referral Baseline" and was put before me as a "Discharge Summary" but the document says on its first page that the plaintiff was "[t]o be discharged 29/10/2013." Although the Air Ambulance record indicates arrival at SGH at 8.20, the first record of the hospital is timed at 08.40. It is an "Emergency Department Nursing Assessment Record" made by RN J M Keady. Nurse Keady's and Dr Olivia Lewis' names and signatures appear on four numbered pages headed "Trauma/Resuscitation, Drug and Intravenous Therapy Record (Emergency Department)" which record careful notes between 08.42 and 11.20. At 08.47 electronically recorded notes commence to be made by RN Lauren Ogle. These typewritten or computer generated documents formally record admission to the hospital at 08.46. These records are found in exhibit 23. At 11.25 a "Ward Pre-Operation Check Form" was completed and "Operative Records" commence at 11.30. The last time recorded in those notes is 21.30. Further recordings were due to be made at 22.00. Surgery was thus completed sometime between 21.30 and 22.00. In short, the plaintiff underwent surgery for at least 10 hours on 16 October. 2. The plaintiff's injuries can be described thus: A. Left leg Fracture of the left proximal femur, comminuted and displaced open fracture of the left tibia and fibula. At 11.26 the orthopaedic registrar noted that the plaintiff's left foot was cold and pulseless and that the lower leg was "hanging by posterior muscles (gastrocnemius)". Prior to surgery on 16 October this observation was made: "Extensive soft tissue disruption mid-shaft tibia – pulseless and pale foot, fibula and common peroneal nerve avulsed". B. Left arm Fracture of the proximal radius and ulna Fracture of the fourth metacarpal Fracture of the base of the proximal phalanx of the fourth finger Dislocation of the proximal interphalangeal joint of the fourth finger Partial amputation of the fifth finger Brachial nerve palsy C. Chest injury Bilateral pneumothoraces Fracture of the 4th left rib, undisplaced D. Pelvic injuries "Open book" pelvic fractures, involving diastasis of the symphysis pubis Posterior dislocation of left sacro iliac joint Avulsion of the rectus abdominis Open perineal degloving injury, including a tearing of the scrotum Anal and rectal injuries associated with this degloving injury Perforation of the bladder E. Other Left C8 and T1 nerve root avulsions (probably contributing to or causing the brachial nerve palsy) Suspected brain injury 1. At surgery on 16 October it was found that the plaintiff's left lower leg could not be saved and it was amputated below the knee, leaving 10cms of the tibia. Surgery was also practised on the left femur with insertion of eleven femoral nails and three screws of two different types. Urological and colorectal procedures were then performed as well as open reduction and internal fixation of the pelvis. The non-orthopaedic procedures included insertion of bilateral ureteric stents, repair of the bladder and a colostomy. Fortunately, the plaintiff's testes were not injured and his scrotum was surgically closed and the rest of the perineum was "packed with wet gauze". Surgery was then practised on the plaintiff's left arm. There was open reduction and internal fixation of the radius and ulna. There was debridement of the hand injuries and a formal amputation of the distal two phalanges of the little finger. The plaintiff was then taken to the Intensive Care Unit. The first record that I have of that Unit is timed at 22.22 on 16 October, but the admission form to that Unit is timed at 23.30. 2. The second operative procedure at SGH was on 18 October. Both urological and orthopaedic procedures were performed. Both an urethrogram and cystogram were performed, and the perineal wound was repacked. The orthopaedic surgeon(s) washed out and closed the left leg stump wound and performed a partial closure of the left forearm wound. 3. The third operative procedure was performed on 21 November 2013. All that I know of this is what is contained on page 5 of exhibit 20: "repeat washout left forearm wound plus/minus closure." The fourth operation was carried out three days later, on 24 November. There was split skin grafting of the plaintiff's left arm wound. The donor site for the graft was the plaintiff's left thigh. A gauze which had been inserted into his scrotum on 16 October was removed at this time. 1. On 28 November the plaintiff was reviewed at SGH by Dr Michael Biggs, a neurosurgeon based at the Royal North Shore Hospital and the North Shore Medical Centre at St Leonards. Dr Biggs was seeing the plaintiff about his left arm. Although the plaintiff's left trapezius and rhomboids were normal, he found that the left arm was otherwise completely flail. He went on to say in his report to the referring doctor from SGH this: "The first option for Buck would be a brachial plexus reconstruction. We would need to explore the supraclavicular plexus to see whether any of the nerve roots were available to graft onto …. He of course only has one sural nerve that could be used as a graft, so depending what there was to graft from and how much sural nerve we were able to obtain, we could then come up with a rational approach to try and graft onto … the important nerves such as the suprascapular, axillary or musculocutaneous nerves. Vascularised ulnar nerve could also be used in this case. The alternative option would be to go straight to free muscle transfers. Mr Cooper would like to explore these options. He is uninsured and as I have retired from the Public Health System I have made arrangements for him to be seen by Dr Richard Lawson in the Hand Clinic at Royal North Shore Hospital and an appointment has been made for him in the New Year." Incidentally, the plaintiff complained to Dr Biggs of numbness in his penis which was a concern to the plaintiff. 1. The final operative procedure carried out at SGH on 5 December 2013 was to enable him to be transferred to Shoalhaven Hospital. Exhibit 20 records the procedure thus: "Flexible cystoscopy/removal of stents/change of suprapubic catheter." The plaintiff described this procedure more graphically, and his general experience at SGH thus: "Q. Did that have to be removed for you to be transferred from St George to Shoalhaven? A. I had two stents up in my kidneys or bladder or something and they had to be pulled out with no anaesthetic if I wanted to go to Nowra, otherwise I would have had to wait a good week. Q. How was the experience of having those pulled out? A. Excruciating. Q. How generally was the experience in St George Hospital in terms of pain? A. Ridiculously painful. They craned me out of bed every day or every second day and even just moving was horrible." Treatment after discharge from SGH 1. The plaintiff was transferred to Shoalhaven Hospital shortly after that procedure. He was discharged from Shoalhaven Hospital on 12 December 2013. The suprapubic catheter was removed on 24 January 2014 enabling the plaintiff to urinate in the normal way. On 31 January 2014, the plaintiff saw Professor Ian Cameron, a consultant physician in rehabilitation medicine for the Lifetime Care and Support Authority ("LCS") established under Motor Accidents (Lifetime Care and Support) Act 2006. Professor Cameron described the plaintiff's "current status" thus: "Mr Cooper is living at Lake Conjola with his partner. He has severe neuropathic pain involving his left hand. He is not yet using a below knee prosthesis. His longer distance mobility is in a wheelchair and he can hop to a limited extent. Equipment has been supplied to assist Mr Cooper to manage at home. Current medications are Lyrica 300 mg twice daily, Targin 40 mg twice daily, Allegron 50 mg at night, Astrix 100 mg at night, atorvastatin 40 mg daily, Somac 40 mg daily and Viagra as required. Mr Cooper notices that he has no sensation or movement in the left arm. He also has a significant sensory deficit over his genital region with impaired sexual function. His colostomy is manageable but he hopes to have this eventually reversed. Mr Cooper is to have an assessment as to the feasibility of nerve grafting to his left brachial plexus. He expects a below knee prosthesis will be provided soon through the Amputee Clinic at Shoalhaven Hospital. Mr Cooper felt that his memory was okay and that he had no major emotional sequelae of his very severe injuries." As far as the left upper limb was concerned, the Professor made these findings: "Mr Cooper has evidence of a complete brachial plexus injury involving the C6, 7, 8 and probably T1 nerve roots. He has some abnormal sensation in the C5 dermatome and T1 dermatome without sensory function in the C6, 7 or 8 dermatomes. There is marked wasting around his shoulder. He can elevate his shoulder but has no other movement in the left upper extremity. The left upper extremity is wasted generally. There is a skin grafted area on the left forearm. It is noted that there had been an amputation of the left little finger through the middle phalanx." The Professor gave this advice to LCS: "With reference to the eligibility criteria for the Lifetime Care and Support Scheme, the relevant injury is the severe left brachial plexus injury causing a flail left arm. Mr Cooper has effectively no function in any of the left upper extremity. It is my opinion that he has an equivalent impairment to an above elbow amputation, or shoulder disarticulation amputation, involving the left upper extremity. Therefore, he meets the amputation criteria for interim eligibility for the Lifetime Care and Support Scheme. I have completed the medical certificate attached to the application form on this basis." The plaintiff has been admitted to the LCS scheme. 1. On 6 February 2014, the plaintiff was reviewed by Dr Anthony Chambers, a Co-Deputy Director of Trauma at SGH. Dr Chambers thought the plaintiff was "doing very well considering the severity of multiple injuries". He made these observations: "1. Left below knee amputation. His stump has healed well and he has been fitted for a prosthesis which arrives next week. He will start rehabilitation once it arrives. He does not have significant pain related to the stump or any phantom limb pain. 2. Bladder injury – his suprapubic catheter has now been removed he is passing urine well. 3. Perineal injury and colostomy. He is managing his stoma very well. His perineal wound almost completely healed and no longer requires dressings. He is seeing Dr. Kozman tomorrow at St George Hospital to assess the status of his anal sphincter mechanism and to see when colostomy can be reversed. 4. Brachial plexus injury. He continues to have significant neuropathic pain in the left upper-limb related to this injury. He is seeing Dr Lawson a Neurosurgeon at Royal North Hospital next week with regard to nerve root repair and graft. He continues to take Nortrypitlline and Pregabaline, for the neuropathic pain it is a good effect. He also takes regular Targin and Oxycodone 20 mg as required. This regimen controls his pain well." Dr Chambers merely proposed a review two months later, but I am not aware of any such review or of the plaintiff's subsequently being seen by Dr Chambers or one of his colleagues. This may be because the plaintiff soon commenced treatment by "Sydney Hand Surgery Associates" at St Leonards, in particular Dr David Stewart and Dr Richard Lawson. Treatment of the left arm problem in 2014 1. Shortly before 4 March 2014, when Dr Stewart wrote a report, he reviewed the plaintiff. He found no demonstrable muscle activity in the plaintiff's deltoid or rotator cuff. There was no muscle activity distally in the arm. Other than a small area of patchy sensation in the C5 distribution, the arm was completely insensate i.e. no feeling in the C6, C7, C8 and T1 dermatomes. Dr Stewart went on to state this: "My normal recommendation for reconstruction for a younger motivated patient such as Buck with a complete plexus palsy would be a staged procedure involving double free muscle transfer with multiple nerve grafts and transfers. In Buck's case, given he has been left faecally incontinent as a result of the perineal injury and as a result of recent anal rectal physiology testing is due to have a gracilis reconstruction of his anal sphincter at some stage in the future, this reconstruction will not be feasible. It is however, still possible to achieve some functional recovery in the hand with a single free muscle transfer combined with multiple nerve grafts and transfers. We have provisionally organised to operate on Buck on 19th March 2014 at North Shore Private Hospital and this is surgery that I would perform along with my colleague, Dr Richard Lawson. The surgery will involve a free muscle transfer from the right leg, a vascularised ulnar nerve transfer and multiple nerve grafts and transfers. This will require a week in hospital and 8 weeks of splinting followed by around 6 months of physiotherapy while we wait for some muscle recovery." The foreshadowed cost of this procedure, given to LCS was this: Dr Stewart's fees $42,947.15, Dr Lawson's fees $42,789.80, An assistant for each surgeon at 20% of the surgeon's fees, Seven nights' stay at North Shore Private Hospital, including one or two nights in the Intensive Care Unit, Anaesthetist's fees. The estimated time for the procedure was between 8 and 10 hours. This was indeed major surgery. 1. This commenced what, on my count, amount to eleven operations on the plaintiff's left arm, which ultimately failed to provide the plaintiff with any improvement. These operative procedures were: 1. 17 April 2014: the principal surgery initially proposed; the principal surgeon was Dr Stewart, the second surgeon was Dr Lawson, only one assistant surgeon Dr Dominique Tremblay and the anaesthetist was Dr Molloy. The operation was formally called a "Reconstruction of the Left Brachial Plexus." 2. 18 April 2014: one of the procedures carried out on the previous day was described as a "free gracilis flap for left elbow and finger function." This involved grafting of the gracilis muscle/tendon from the thigh to the elbow. The procedure on this day was described as "Re-exploration of ischaemic free gracilis flap", it appears that some thrombosis had occurred. 3. 22 April 2014: debridement and skin grafting of the left arm. The donor site was the right thigh. In a letter to Dr Devlin of 29 April, Dr Stewart summed up the surgery thus far in this fashion: "I saw Buck for a follow-up after his surgery. He had a reconstruction of his left brachial plexus with multiple nerve transfers and a free gracilis muscle transfer. He had some problems post-operatively with loss of blood supply to the transferred muscle requiring secondary surgery and revision of the vascular anastomosis. We had to remove the skin paddle and put a skin graft on the transferred muscle. I am happy to report today that the skin graft is healing well and this demonstrates the muscle is still well perfused. Buck's other wounds are all healing nicely and I have changed the dressings today. Buck will need to have his arm immobilised for another month and will need dressings for several weeks for the skin graft. He will be reviewed again by my Colleague, Dr Richard Lawson in a week." However, things did not go well. On 6 May Dr Lawson noted that the "central top part of the transferred muscle looked somewhat unhealthy but with no frank infection." He admitted the plaintiff to RNSH for intravenous antibiotics and observations but the gracilis transfer was found to have failed. 1. 8 May 2014: ) On each of these occasions, the plaintiff 2. 10 May 2014: ) underwent surgery at RNSH for 3. 12 May 2014: ) debridement of the failed muscle transfer. 4. 14 May 2014: at North Shore Private Hospital, a second debridement and application of a Vac (Vacuum Assisted Closure) dressing to the wound in the plaintiff's arm pit (axilla). The first had been carried out on 12 May 2014. 5. 16 May 2014: again at the Private Hospital, another debridement and application of a Vac dressing to the axilla. 6. 18 May 2014: debridement and closure of the left axillary wound. On 27 May Dr Lawson wrote to Dr Devlin: "I saw Buck with David Stewart today. Buck's wounds have largely healed. There was a small area of breakdown in the apex of the axilla but this does not appear infected and we hope to allow this to settle down with serial dressings. We plan to review him next week. We will need to consider whether or not we need to re-explore the plexus to see whether or not the nerve transfers to the biceps are intact or not as it is quite likely they are caught up within the area of debridement." On the same day, the plaintiff saw a colorectal surgeon who recorded this history concerning the plaintiff's left arm: "He attended the rooms with his father and partner. They were understandably quite disappointed with the outcome of his failed left gracilis transfer at [RNSH]. Unfortunately he had had very little improvement in his left arm function and tells me that he anticipated that there is limited expected further improvement." There were continuing problems with the plaintiff's axillary wound. 1. 25 June 2014: at the Private Hospital, Dr Stewart again debrided the axillary wound and transferred a skin flap from the chest to close the wound. Dr Stewart reviewed the plaintiff on 1 July. Although it was acknowledged that there had been little improvement thus far, hope for improvement remained: "I reviewed Buck today, a week after his surgery. He had a closure of a wound on his left axilla. This is healing nicely and I have changed the dressing to a small dressing which he and his partner can change on a daily basis. I will see Buck again in another week to remove the sutures and for a final wound review. Given Buck's axillary wound is now been fully addressed, it is time for us to consider whether in light of the failure of his free muscle transfer, if any other surgery is required for the reconstruction of his left arm. The successful components of his previous reconstruction should hopefully give him some control over his shoulder and some elbow extension however, at present he has no prospect of recovering elbow flexion. In order to give some hope of recovery of control over his elbow, Buck would need to have re-exploration of his muscular cutaneous nerve and either a revision of the transfer from his intercostal nerves to the muscular cutaneous nerve or possibly elevation of another intercostal nerve to provide some donor axons. This would need to be done in another month or so to insure that the wound has completely healed in his axilla. Buck is very keen to go ahead with this and we will seek approval for the procedure to be done at North Shore Private Hospital." 1. 6 August 2014: at the Private Hospital, under Dr Stewart, a "re-exploration of the left axilla, long thoracic to musculocutaneous nerve transfer, scar revision left arm." The findings noted on the operation report are: densely scarred axilla, no continuity of previous intercostal to musculocutaneous nerve transfers, large scar left arm. 1. Dr Stewart reviewed the plaintiff on 20 August. The first part of his report is this: "I saw Buck again for a further follow-up, 2 weeks after his long thoracic musculocutaneous nerve transfer. The wounds have healed nicely and I have removed all of the dressings today. Buck no longer requires the sling to immobilise his arm for the nerve transfer but I have told him to wear it as much as he feels is useful, given his flail arm. I will need to see Buck again in 2-3 months to follow-up on the progress of his nerve transfers. I gather he is due to have some surgery for hernia in the next month and this should have no effect on his shoulder." Dr Stewart went on to refer the plaintiff to the pain management service at RNSH. He also wrote a letter supporting the plaintiff's application for a Disability Support Pension. In that letter he said this: "The injury to the left arm has left him with a severe paralysis of all the muscles of his upper limb. While he has had several efforts of reconstruction of this paralysis, he has suffered several major complications with the loss of a muscle transfer. Although Buck has had revisional surgery in the form of nerve transfers, the best possible result in terms of recovery of function, will still leave him with severe limitation in the use of the left arm. He is certain not to recover his previous level of function and will not recover any use of his left hand." I am not aware of any subsequent review of the plaintiff by either Dr Stewart, Dr Lawson or one of their colleagues. The plaintiff's left arm is still flail. The only option now available to the plaintiff is to have his left arm amputated. He gave this evidence and he was not challenged about it: "Q. Finally, have you given any thought to your future in terms of your attachment to your left arm? A. Yes, I have. I have been given the option to have it amputated, purely and simply because it gets in the way of a night-time when I'm sleeping, and just generally walking around and doing things, but it's not something - it's not a decision that can be reversed, obviously. So I don't want to commit to that right now." Other treatment in 2014 1. The colorectal surgeon the plaintiff saw on 27 May 2014 was Dr Kim-Chi Phan-Thien who practises at, inter alia, SGH. The plaintiff consulted her with a view to ultimately reversing the colostomy. This has now been achieved. On 27 May Dr Phan-Thien provided this advice: "Today we discussed what would be involved should he wish to undertake a graciloplasty to return function to the anal sphincter complex which has been largely disrupted by his accident. He has been compliant with his pelvic floor exercises and can effectively constrict his puborectalis muscles on command. Understandably, Buck is worried about failed muscle transfer. We discussed briefly artificial sphincters and my concern of erosion and infection. Buck also has problems with a large incisional hernia due to injury to the left rectus abdominis and anterior abdominal wall. Finally he is anxious about his sexual dysfunction which he partly attributes to penile length. In terms of the options we could: 1. Trial the graciloplasty. Should this function, we could reverse his stoma and at the same time repair his large incisional hernia. After that we would deal with the lengthening of his penis. 2. The second option involves accepting for the moment at least, that the stoma remains. We could resite this to a more optimal position to reduce leakage and issues with the appliance. The incisional hernia could then be repaired and his penis lengthened. Buck and his family are aware that the stoma is not irreversible from an operative perspective. They appreciate that it is the advisability of that procedure that we are concerned about. Given the infectious complications of his arm surgery he is understandably cautious about undertaking any further muscle transfers. At this stage I will let him and his family consider the options before deciding on a path of treatment. I will keep you updated with respect to his progress." 1. The plaintiff had also commenced to see Dr William Lynch, a urological surgeon about problems with his penis. Because of the extent of the injuries to the plaintiff's pelvis and its contents, the plaintiff had experienced a number of problems with this organ. They included its length, its position and its sensation. This evidence was given (T151.01): "Q. By this stage [discharge from Shoalhaven Hospital], had you become aware that as a consequence of your pelvic injuries, your penis wasn't in the position where you were used to it being? A. Yes. Q. Where was it? A. It was pulled in. My pelvis broke and the ligaments were pulled in roughly two inches or so and it was pointing to an angle and it was just not very pleasant." and at T165.18 he said: "... sometimes I don't get a proper erection and, due to my penis being sucked into my body, it's semi erect and not very long and pointing to the side and it's just not functional for sex." and at T165.34: "Q. Do you have the same degree of sensation in your penis that you had before the accident? A. Not at all. Q. What's changed? A. I severed the nerves to my penis in this accident. I believe it was when my pelvis shattered. So I generally can't feel it very well at all." In a letter dated 14 July 2014, addressed to Dr Phan-Thien, Dr Lynch advised that he had proposed the division of the suspensory ligament (ligamentum suspensarium penis) to allow him easier access to his retracted penis. Dr Lynch advised that the plaintiff was keen to have surgery and proposed that it be done when Dr Phan-Thien carried out her proposed surgery. The combined surgery was not carried out until 13 November 2014. 1. On 4 September, the plaintiff attended the Prosthetic and Orthotics Clinic at Shoalhaven Hospital. He had an "interim prosthesis" but a problem had developed. The plaintiff had "put on significant weight because of his immobility and consequently the stump [had] grown bigger in volume" – exhibit Z. The rehabilitation physician, Dr Ravi Thapaliya, went on to say: "We wrote a prescription for him for a definitive prosthesis with a slightly different design this time. We are requesting a silicone pin suspension system and also multiaxial foot and ankle with titanium component. He used to play karate and was fairly active in his sports before his injury and he wishes to have a leg that will allow him to be involved in those activities." In the meantime, the doctor advised the plaintiff to use "the shrinker" regularly and it would enable the plaintiff to use the interim prosthesis. 1. On 26 September, the plaintiff commenced counselling with Mr Kevin Percival of Anglicare Shoalhaven (exhibit PP). On 15 October, the plaintiff saw Professor Michael Cousins, a pain management specialist, at the Northern Private Pain Centre at the North Shore Private Hospital. The Professor recorded the plaintiff's presenting symptoms thus: "Pain in the back of the left arm associated with a brachial plexopathy. Phantom limb pain in the left foot following a traumatic amputation of the left lower limb above the knee level. Pain in the left inguinal area associated with an inguinal hernia which will shortly be repaired. Pain in the lumbar region which is the worst pain area currently." He went on to provide further details of the plaintiff's pain which outlines his functioning and general condition at this time: "Pain Details The intensity of pain in all but the low back area is subject to random changes. As noted above, the character of all of the pain apart from the lumbar pain and inguinal area pain is clearly neuropathic. Overall, the pain levels range from 1 to 2/10 up to 9/10. The patient wakes every night with pain and is awake for about a half an hour before going back to sleep. The characteristics of the low back pain lead quite strongly towards a diagnosis of mechanical low back pain. Effects of Pain Overall, the patient sleeps for seven to eight hours per night. Work is now terminated owing to the injury sustained by the patient. Social activities are diminished but the patient and his partner have managed to restart some activities using a wheelchair, particularly if the activity involves a long travelling. The patient is attempting to reconnect with friends, but this has proved to be difficult. As far as physical activity is concerned, the patient can walk about 500 meters with the current prosthesis, but there are problems with the current [device], which will need to be replaced. So far, he has not had access to hydrotherapy but is returning to some modified activities. Mood is somewhat mixed. He has had some quite severe black days but has no evidence of any ongoing depression. He has developed goals, which he believes are achievable, and his partner has participated in this strongly." The Professor made six recommendations which included an ongoing home exercise program, a gradual weaning off opioid medications (Targin and OxyNorm) and hydrotherapy. 1. The surgery practised by Dr Lynch on 13 November was unsuccessful (T153.30 and T153.41). Dr Phan-Thien formally described the surgery she practised as "Mesh reconstruction of Left Abdominal Wall and Repair of Parastomal Hernia." Dr Phan-Thien was to carry out further surgery in 2015 but, unfortunately, I have no further reports from her. 2. On 19 December the plaintiff was reviewed by Professor Cameron for LCS. The Professor noted that the plaintiff had gained a "significant amount of weight" since the examination on 31 January. He also noted that the plaintiff continued to have reduced penile sensation. There was still no sensation in the left arm and the Professor noted a small, recent burn on the left forearm. The plaintiff told me of similar burns and other injuries to his left arm because of his lack of sensation and movement of the arm. Professor Cameron maintained his certification of the plaintiff for the LCS Scheme because of his left transtibial amputation and an effective left transhumeral amputation. Treatment since 2014 1. On 17 February 2015, the plaintiff returned to the Prosthetic and Orthotics Clinic of Shoalhaven Hospital, accompanied by a member of the staff of LCS. On this occasion Dr Thapaliya said this: "He requires a new prosthesis which has already been prescribed. He is waiting for this prosthesis to be fitted in the near future. Mr Cooper wishes to have an extra set of prosthesis for recreational use. He wishes to go back to participating in water sports. I learned that Lifetime Care and Support is happy to provide him with this. We have prescribed him recreational prosthesis which will be an exo-skeletal waterproof prosthesis with suspension sleeve and a silicon pin system. I could see numerous superficial ulcers in the left hand. Mr Cooper needs to be careful in regard to protecting that hand from cigarette burn (which he mentioned as the cause) and other traumatic accidents." 1. In April 2015 a further attempt was made to repair the plaintiff's abdominal hernia. There has been a further herniorraphy since and further surgery is proposed (T153.45 to T154.37). It is convenient at this time to comment on the plaintiff's remaining abdominal hernia, which is a different issue to his anal/rectal injuries and the colostomy. Exhibit G is a large number of photographs of the plaintiff and his body parts taken since the collision. A large number of those (13 to 49) appear to have been taken when the plaintiff was a patient at SGH. Those numbered 51 to 48 appear to have been taken when the plaintiff's left arm was being treated in 2014. The plaintiff's solicitor (Mr Stephen Legzdin) took some (62 to 65) on 12 August 2014. Number 63 was an attempt to demonstrate the hernia. Numbers 59 to 61 were taken in or about April 2016 (T155.18) and very clearly demonstrate the hernia as it was at the time of the hearing. From what the plaintiff told me at T154.35 (bowel entering the scrotum) it could be an inguinal hernia but photograph 61 of exhibit G shows it to be much more complex than a simple inguinal hernia. The problem appears to be a lack of adequate tissue to repair the defect. 2. In the middle of 2015, at Hurstville Private Hospital, Dr Pham-Thien carried out the surgery necessary to repair the damage to the plaintiff's anus and rectum, remove the stoma and close the colostomy. The plaintiff now has "pretty much normal control of [his] bowel) ... 99% of the time" (T186.05). 3. The plaintiff has maintained drug and alcohol counselling. Ex CC is two letters from Mr John de Casanove, a Drug and Alcohol Counsellor with the Southern Drug and Alcohol Service run by Illawarra Shoalhaven Local Health District. They are dated 21 October 2015 and 9 May 2016. The first is of little utility, little more than an encomium. The second covers a period of over 6 months during which the plaintiff attended 7 scheduled appointments, "on a fortnightly basis"! It states that the plaintiff had been drug free since 2012 [probably 19 August 2012] and alcohol free "for nearly 3 years" [probably since the collision]. The latter statement overlooks the fact that the plaintiff had two glasses of champagne and two bottles of Crown Lager at his wedding on 24 November 2014, which is quite understandable and completely excusable. After discussing the plaintiff's abstinence, the letter continues: "His current risk of relapsing is low and unlikely. Mr Cooper presents on time for all his appointments and engages well during the sessions, he appears honest and willing to receive direction and allows vulnerability/frustrations to be worked through and resolved. … Discussing current stressors/grief, he has experienced a lot of loss and has shared his remorse regarding his own acting out dysfunctional behaviour. He is a man that appears to have gained great strides towards his own personal recovery and his resilience is a credit to him." Taking this with a grain of salt, it appears that Mr de Casanove accepts the plaintiff as one of his better clients, with a low risk of relapse to drugs and alcohol. Did the plaintiff suffer a brain injury? 1. The remaining medical evidence is medico-legal. Before considering that I need to discuss the issue I have just raised, the only substantive medical issue in the case. I again point out that the plaintiff was wearing a helmet. There are scrape marks on the helmet (exhibit A, photographs 113 to 119) consistent with the plaintiff's being dragged along the road by his machine, but no evidence to suggest a direct blow to the helmet, such as might indicate the plaintiff's being thrown forcefully onto his head. It appears that the diagnosis of "subarachnoid haemorrhage" contained on the first page of exhibit 20 was based on the first, relevant radiological investigation. This was a CT Brain and Cervical Spine done at 11.09 on 16 October 2013. That of the brain is reported thus: "There is a small amount of intraventricular haemorrhage adjacent to the intervertebral [sic, scil. interventricular] foramen, this presumably represents shear haemorrhage. The intracranial appearances are otherwise within normal limits for a patient of this age, no intracranial sequelae of trauma are demonstrated elsewhere, there are no features suggestive of diffuse cerebral swelling at this stage, no intra or extra-axial collections are evident apart from the tiny amount of haemorrhage adjacent to the intervertebral [sic, scil. interventricular] foramen seen here on the left." This investigation was repeated on the following day, 17 October. This CT is reported thus: "Comparison had been made with the CT performed on 16 October 2013. The previously demonstrated small dense focus at the interventricular foramen is again noted and is unchanged in size and appearance. There is no new acute intracranial haemorrhage or established territorial infarct. There is no midline shift. No extra-axial collections. No calvarial fracture has been demonstrated. Conclusion: Small intraventricular haematoma at the foramen of Munro [sic, scil. Monro] is again noted and is unchanged in appearance. Addendum Dr Glenn: If the structure at the interventricular foramen is unchanged over several days then a colloid cyst should be considered in the differential diagnosis." Dr Glenn, I infer, was a consultant radiologist at SGH. He has a large private practice in the St George area and the Shoalhaven Shire. 1. An MRI scan of the brain and cervical spine was made on 25 October 2013. It is to be noted that it is reported as "suboptimal image resolution" Under the heading "Clinical details" is this: "? Colloid cyst. MVA. Altered sensation in left arm." The relevant part of the report is this: "Corresponding to the CT brain studies of 16 and 17 October 2013, there is a T1 hyperintense, T2/T2 FLAIR isotense rounded focus at the foramen of Monro. This measures approximately 0.5cm. There is no associated enhancement. There is no intracranial diffusion resection, magnetic susceptibility or abnormal enhancement. There is no extra-axial collection. There is no hydrocephalus. The grey and white matter appearances are normal. Midline structures otherwise have remarkable appearances." The comment on the report discusses the spinal damage responsible for the brachial plexus lesion. It then says this: "Incidental colloid cyst finding at the foramen of [Monro]. Normal intracranial appearances otherwise." 1. Prior to ordering the CT scan of 17 October, the surgical registrar in the ICU of SGH thought the radiological abnormality to be "likely traumatic" (ICU Notes at 09.06). At 19.27 on the same day the Senior Neurological Registrar together with Dr Ghahreman, her supervisor, reviewed the radiological reports and discussed them and reached the conclusion that they showed a colloid cyst (ICU Notes at 19.27). That appears to have remained the diagnosis at SGH thereafter, as the clinical details for the MRI scan of 25 October suggests. A colloid cyst is, according to Gould's Medical Dictionary, 4th Edition, a cyst containing gelatinous material, whose consistency approaches that of thyroid gland colloid. There is no suggestion that it is traumatic. 2. To seek to resolve this issue, the solicitors for the parties jointly qualified Dr Pauline Langeluddecke, a clinical psychologist, who assessed the plaintiff over five hours on 19 October 2015 and prepared a report dated 5 November 2015 (exhibit FF). The report is lengthy (18 pages). The first section of that report contains a summary and opinion. The first paragraph of that is this: "Injuries Sustained in a Motorcycle Accident on 16 October 2013: Mr Cooper sustained multiple orthopaedic injuries and severe abdominal and chest trauma on 16 October 2013 when the motorcycle he was riding collided at high speed with another motorcycle. His injuries place him at risk of hypoxic brain damage given severe hypotension and haemodynamic instability secondary to massive blood loss in the early stages. Mr Cooper sustained traumatic brain injury (TBI), the severity of which is unclear on accepted criteria. His TBI rates as at least "mild" given a period of amnesia in relation to the accident and a mildly depressed Glasgow Coma Scale score (of 13 – 14 points) at the accident scene. There was thought to be evidence of acute brain trauma on early CT scanning of the abnormality was later attributed to a pre-existing condition (i.e., a choroid cyst at the foramen of Munro [sic, scil. Monro]). Post-traumatic amnesia duration on the Westmead PTA Scale was reportedly 10 days. This suggests a "severe" TBI. However, objective PTA assessment was compromised by the effects of early medical interventions (including surgery) and prolonged requirement for opioid analgesia on his cognitive functioning. Mr Cooper does not appear to have required any brain injury treatment/rehabilitation. He did not demonstrate signs of depression or post-traumatic stress during his initial hospital admission." She went on to express this opinion: "Opinion: The injuries which Mr Cooper sustained in a motorcycle accident on 16 October 2013 place him at risk of a Neurocognitive Disorder due to traumatic brain injury. The findings of standardized cognitive testing suggest a good recovery of cognitive function post-accident. There is no evidence of measurable cognitive impairment in the distraction-free, one-on-one testing environment. However, it is possible that Mr Cooper's attentional capacity and processing speed, and in turn his immediate – short-term memory and reasoning abilities, are affected in his normal environment secondary to severe pain and/or low mood in relation to the severe physical injuries he sustained. The memory difficulties described by Mr Cooper and his wife at interview suggest this to be the case. Psychological trauma associated with Mr Cooper's accident/prolonged hospitalization and long-term physical sequelae to his injury place him at significant risk of a Mood (particularly depressive), Anxiety (e.g. PTSD) and Adjustment Disorder, and possibly also a relapse to Substance Abuse. Available evidence suggest remarkably good psychological adjustment since Mr Cooper's accident and provides no evidence of a recurrence of substance abuse or behavioural problems of an impulsive or aggressive kind. Mr Cooper reports mild stress symptoms and occasional low mood as the ongoing emotional sequelae to his injuries. He does not currently meet DSM-5 criteria for Mood or Anxiety Disorder." 1. The only other qualified medical practitioner whose reports have been placed before me is Associate Professor Michael Fearnside, a neurological surgeon. The Professor examined the plaintiff on 31 August 2015, i.e. before he was assessed by Dr Langeluddecke, who had available to her the clinical notes of SGH. Professor Fearnside did not. At the end of his primary report he said this: "8.4 At issue is as to whether Mr Cooper sustained cognitive impairment as a consequence of the motor vehicle accident. The only assessment of his level of consciousness was the pre-intubation score of a GCS of 13. The clinical records from St George Hospital were not available and it would be helpful to review them to try to assess a period of post-traumatic amnesia. However, a CT scan of his brain did not reveal any traumatic intracranial abnormality and was normal. The MRI scan showed that he has a colloid cyst at the foramen of Monro (interventricular foramen). This is a congenital anomaly, entirely unrelated to the subject accident. 8.5 However, it is accepted in the literature that such patients with extensive and severe injury who are managed in an intensive care unit can develop cognitive impairment. Articles by Wolters et al (2013) and Skrobik et al (2013) are attached. It is probable that Mr Cooper was hypotensive which is an independent predictor of poor outcome following head injury and it would be appropriate to review that through the St George Hospital notes as well. 8.6 With regard to cognitive impairment, it is recommended that Mr Cooper undergo formal neuropsychological testing to identify whether there is cognitive impairment which is organic. It will also be appropriate to have him assessed by a psychiatrist, expert in the assessment of brain injury because there may be some altered cognition as a consequence of his mental health issues which pre-date the subject accident. This will be a complex matter which requires careful consideration because any cognitive impairment will affect his capacity for future studies including his proposed Certificate 4. 8.7 When these documents become available, I will be in a position to provide a further report." He was then provided with exhibit 18 and the records of SGH. He was not provided with Dr Langeluddecke's report. On 5 November 2015 he said this: "1. I have read and considered the documents supplied namely, the record of the Ambulance Service of New South Wales (R62426) and the clinical records from St George Hospital. 2. The clinical record from the Ambulance Service dated 16/10/13 confirms that Mr Cooper's Glasgow Coma Score was 14 on scene prior to his transfer to St George Hospital. It appears as though he was evacuated by helicopter to St George Hospital. 3. The clinical records from St George Hospital include the following information: • In the emergency department, his GCS was assessed at 9T (he had been intubated). • He was resuscitated and required large amounts of blood and packed cells (5 units of packed cells and 1 unit of FFP plus cryoprecipitate). • There was uncertainty about the noted intracranial abnormality. The CT scan of the brain dated 16/10/13 was reported as showing a small amount of intraventricular haemorrhage adjacent to the foramen of Monro (entered as intervertebral foramen but this is incorrect). An MRI scan of the brain, however, revealed this to be a coincidental colloid cyst. A colloid cyst would not be caused by the subject accident nor would it be likely to have caused an aggravation and a traumatic brain injury. This was discussed in the previous report. • Unfortunately, only page 3 of the intensive care discharge (medical) was available which provided no additional information. 4. Post-traumatic amnesia (PTA) testing was commenced on 22/10/13 when Mr Cooper scored 7/12. On 23/10/13 he scored 10/12 and on 24/10/13, there was no record of testing having been performed. On 25/10/13 the occupational therapist was unable to assess him as he was off the ward. Both on 26/10/13 and 27/10/13 he scored 12/12, a full score. PTA testing seems to have been suspended after that. Therefore, he was "out of PTA" most likely either on 25/10/13 or on 26/10/13. Assuming he first scored 12/12 on 26/10/13, the period of PTA was of the order of 10 days. However, this may be confounded by analgesic drugs which he would have been receiving. However, it is reasonable to conclude there was a period of post-traumatic amnesia of the order of 9 or 10 days. This is indicative of a severe head injury. 5. Conclusion 5.1 The clinical records from St George Hospital confirms the view that Mr Cooper did sustain a severe head injury as a consequence of the subject motor vehicle accident on 16/10/13. This would be consistent with his complaints of cognitive impairment recorded at paragraph 2.1 of my previous report (31/8/15)." It is clear to me that Professor Fearnside based his opinion of "a severe head injury" on the Post Traumatic Amnesia Scales. However, as pointed out by Dr Langeluddecke, such is not consistent with the lack of evidence of measurable cognitive impairment on testing. Furthermore Dr Langeluddecke was well aware of the PTA Scales. She discusses them at 3.7 to 3.9 of her report. 1. On a review of this evidence, I am not persuaded on the balance of probabilities that the plaintiff suffered a primary brain injury such as a subarachnoid haemorrhage. Professor Fearnside said this at 8.4 of his primary report: "... a CT scan of his bran did not reveal any traumatic intracranial abnormality and was normal. The MRI scan showed that he had a colloid cyst at the foramen of Monro (interventricular foramen). This is a congenital anomaly, entirely unrelated to the subject accident." Likewise I am not satisfied that there was any brain damage caused by hypoxia, because there does not appear to be any direct evidence to support such an hypothesis. However I accept that the plaintiff has sustained some secondary cognitive impairment. In par 1.9 of Dr Langeluddecke's report, which I have quoted above in [104], she points out that such an impairment could be secondary to severe pain and/or low mood in relation to the severe physical injuries the plaintiff sustained and that what was described to her by the plaintiff and his wife suggested was the case. To a similar effect Professor Fearnside said this in his primary report: "8.5 However, it is accepted in the literature that such patients with extensive and severe injury who are managed in an intensive care unit can develop cognitive impairment. Articles by Wolters et al (2013) and Skrobik et al (2013) are attached. It is probable that Mr Cooper was hypotensive which is an independent predictor of poor outcome following head injury…" The plaintiff was in the ICU at SGH for at least two weeks (T149.39) Professor Fearnside's assessment 1. Professor Fearnside's assessment of 31 August 2015 is the closest thing available to me of an overview of the plaintiff's current condition. At the commencement of these reasons I described the plaintiff's injuries as "complex and life threatening". Those are the words used by the Professor in 1.3 of his primary report. The Professor examined the plaintiff from the point of view of his speciality. The relevant part of the report is this: "6.3 On examination, he was alert and oriented and able to give a good account of himself. A Mini Mental State Examination was not considered necessary. 6.4 There was no anosmia. Uncorrected visual acuity was N5 bilaterally. To confrontation, visual fields were full. External ocular movements were full and there was no nystagmus. He had a mild left Horner syndrome with pupillary inequality and the slight ptosis, likely the result of his cervical spinal injury. Tuning fork tests of hearing were normal. Speech was normal and examination of the lower cranial nerves was normal. 6.5 The form and structure of the facial skeleton was normal, facial movement symmetrical and facial sensation intact. 6.6 Coordination of the right hand with finger-nose testing and alternate rapid movements of the fingers was normal. Power, tone, reflexes and sensation all were normal in the right arm. 6.7 In the left arm there was a flicker of movement in the external rotators of the shoulder and elevators (levator scapulae and trapezius). Otherwise, there was paralysis (0/5) and hypotonia with marked wasting of the left arm. There was a large area on the volar surface of the upper third of the arm where there had been tissue loss and a split skin graft had been performed. There was [sic] multiple surgical incisions on his left arm and hand. He had no shoulder movement at all. The lowest dermatome where sensation was perceived was C4, across the supraclavicular fossa but here, there was allodynia as a result of the surgery. Reflexes were not tested in the arm and there was complete anaesthesia from C5 through T2. 6.8 On the upper half of the left side of his chest wall there was marked allodynia which extended to the supraclavicular fossa. 6.9 There was a left below knee amputation with a prosthesis fitted. The graft was not taken down. In the right leg, there was normal tone and power. Reflexes were normal as was sensation. 6.10 Cervical spinal movements were full and pain-free. There was no paraspinal muscle guarding or spasm and dysmetria was not present. 6.11 In the lumbar region he indicated a wide area of pain and there was some local tenderness in the back but he had a normal range of motion of the lumbar spine and there was no paraspinal muscle guarding." The first part of his opinion is this: "8.1 As a result of the motorbike accident, Mr Cooper sustained catastrophic injuries which have left him severely and permanently impaired and consequently disabled. The injuries are causally related to the subject accident. Although it is outside my area of expertise, there were substantial mental health issues resulting in contact with the justice system prior to the subject accident. It is probable that the subject accident caused aggravation of the previous mental health problems. In that regard, the opinion of a psychiatrist would be appropriate. 8.2 From a neurosurgical point of view, he requires no operations. He will need to remain under the care of his nominated treating doctors for conservative management. 8.3 His prognosis is as he now presents. He came to assessment one month short of two years following the accident on 16/10/13. It is not likely there will be any improvement in function in his left arm now and the arm is functionless and of no value in either an occupation or activities of daily living." The rest of this part of the report deals with the question of cognitive impairment. As a neurological surgeon, the Professor did not deal with the plaintiff's pelvic issues which clearly require ongoing treatment. The plaintiff's psyche 1. Professor Fearnside recommended psychiatric assessment. Unfortunately there is none. The closest thing to such an assessment is the opinion expressed by Dr Langeluddecke. The particulars filed on 14 May 2015, page 8, contain this: "Psychological 1. Severe aggravation of pre-existing depression 2. Frustration" The latter is not a disability, but an ordinary human emotion very commonly encountered, sometimes for some people almost daily. Dr Langeluddecke dealt with the plaintiff's psychological state at 1.10 of her report, which I have quoted at [104] above. Given the plaintiff's background and his presentation to me over five days at Nowra I agree with Dr Langeluddecke that the plaintiff has made a remarkably good psychological adjustment to the effects of his injuries. However, I do accept the "ongoing emotional sequelae" identified by her, "mild stress symptoms and occasional low mood." A return to work? 1. The defendant's challenge to the plaintiff's credit, in so far as it is based on his behaviour after the collision, largely turns around two matters: firstly, whether he has an ability to work and, if so, whether he wishes to use it, and, secondly, a related issue as to how he spends time when not in hospital. I shall now deal with the first of these matters. I shall initially canvass the medical opinions . At [90] above I quoted an opinion of Dr Stewart produced by him in support of the plaintiff's application for a Disability Support Pension. This indicates that Dr Stewart believed the plaintiff was substantially incapacitated. Professor Cameron's assessments deal only with the plaintiff's eligibility for the LCS Scheme, but he clearly believed that the plaintiff had a total loss of function of his left arm, equivalent to its being amputated through the humerus. Dr Langeluddecke expressed this opinion on "employability": "1.11 Employability: Although Mr Cooper's cognitive abilities are well preserved on formal testing, ongoing reliance on opioid drugs for pain management has the potential to impact on his attentional capacity (e.g. vigilance) and processing speed, and in turn his safety in relation to driving a motor vehicle and operating machinery. Furthermore, his ability to utilise his cognitive abilities (e.g. his visuospatial skills) to perform practical tasks such as those required in carpentry or general labouring duties is compromised by the lack of functional use of his left upper limb. Functionally, this means that he may know how to perform particular tasks but is unable to execute them in an effective and efficient manner because they necessitate the use of both hands. On a more general note, the fact that Mr Cooper was never inclined towards academic study or sedentary work and preferred work of a practical and physical nature heightens the significance of Mr Cooper's physical injury (i.e., the loss of the functional use of his left upper limb; diminished mobility secondary to the amputation of his left lower leg) for his employability in the future." Professor Fearnside expressed no direct opinion on this issue, but did comment on a number of documents which were provided to him. One of them was a "Work Options Plan" dated 21 July 2014 (part of exhibit OO). This is a document generated by LCS. It was made by Mr Michael Jones, a psychologist with a Graduate Diploma in Rehabilitation Counselling. Of the proposal contained in it, Professor Fearnside said this: "Mr Cooper was assessed (Mr Michael Jones) and his duties as a carpenter were detailed at section 2.2. I have read and considered these. The assessor thought that Mr Cooper did not have any cognitive issues to be addressed. I tend to disagree with that and am of the view that there may well be some cognitive impairment which requires further investigation. When work options were explored, it was indicated that his goal was to become a self-employed builder managing residential building projects and employing subcontractors to undertake the physical work. Mr Cooper believed he had the functional capacity to be present on site and undertake the required tasks. To do this he needed to complete his Certificate 4 in building and construction. The assessor felt that given his success in previous training and lack of cognitive disability, he should be able to manage the cognitive and functional demands of his level of study. I was not quite so confident that Mr Cooper would be able to manage responsible work as a builder, managing residential building projects. He told me that there was some difficult with his Certificates 1-3 with regard to memory and his present cognitive complains raised the question of further cognitive impairment. However, the assessor did question as to whether this was a realistic option given his physical limitations. It was more appropriate for him to consider sedentary roles within the construction industry such as product sales, product estimation and purchasing. There was a plan of recommended actions to achieve this goal provided." (a) What would the plaintiff have done, uninjured? 1. It is convenient to deal with this topic at this time. At the time of the collision the plaintiff was unemployed, and had not worked since August 2012, for some 14 months. However, he remained a qualified carpenter. He had his ABN (see [17] above). He had a business name: "Precision Finish Carpentry" (T122.35). He had a contractor's licence as a carpenter and insurance – a photograph of these documents is in exhibit MM, numbered 2. He had his own business card (exhibit KK). He had his own tradesman's "ute" with storage for his tools, and his "ute" advertised his business's name and his mobile telephone number (exhibit MM, photograph 1). He had his own tools and equipment (exhibit MM, photographs 3 to 12). He had his own business shirt (exhibit LL). He was fully equipped to return to work as a contract carpenter, when he overcame his existential problems. 2. Mr Streeter regarded the plaintiff highly. He described him as a "good carpenter", a "great tradesman", possessing a "good work ethic". He believed that the plaintiff had been well trained as an apprentice by Mr David McIver whom Mr Streeter described as a "good tradesman" as well: "I think he taught him all the facets of ... the building industry from concreting, forming up slabs, frames, trusses, fit outs, whatever that's needed to be done, basically do it all and he knew it all." The plaintiff was punctual, never late, never leaving early (T350.38) and never took a day off (T350.01). He never turned up to work unfit to work (T350.42). When asked whether he would "re-employ" or re-engage the plaintiff Mr Streeter replied "absolutely". As stated in [23] above, when Mr Streeter found further work with which he needed assistance, he tried to re-engage the plaintiff, unsuccessfully. In cross-examination, Mr Streeter agreed that the plaintiff was "a very pleasant and amenable person to have on a construction site" and that the plaintiff got on well with Mr Streeter and everybody else on construction sites. He was aware that the plaintiff may have been drinking heavily on weekends, but was unaware of the plaintiff's cannabis use. He was also aware that the plaintiff was having "troubles at home with his partner" but "not in a deep and meaningful way" (T357.098) 1. In his evidence the plaintiff maintained that he intended to return to work. At [39] above I cited the evidence relating to the plaintiff's reasons for not returning to work prior to the collision. Before giving that evidence, the plaintiff told me that he was thinking of returning to work in "early 2014" (T121.44) The plaintiff had told me (T96.05) that when working for Mr Streeter he had this career ambition: "Eventually to become a builder but to subcontract and contract work out and to, when times were tough, to be on the books because there's no stress with the business and stuff like that when you're on the books." I interpret the latter part of that answer to mean that when times were tough he would do the work himself, being on the books of his own company, i.e. he would incorporate his business and employ himself and so insulate himself from risk. Records generated prior to the collision support both that ambition and the plaintiff's intention to return to work: 1. history given to Kedesh Rehabilitation Service cited at [28] above; 2. one of the reasons given by the plaintiff, reiterated by Doctor Devlin, for early release from Kedesh House, cited at [30] above; 3. statements made by the plaintiff at the FaCS meeting on 16 October 2012, cited at [32] above. 1. If I believe the plaintiff, and if I accept that, but for the lapse into alcohol ingestion on 15 October 2013, the plaintiff would have remained alcohol and illicit drug free, I believe it appropriate to accept that the plaintiff would have returned to work as a carpenter, subcontracting to builders such as Mr Streeter in 2014. (b) The post collision plans 1. After telling me about LCS, the plaintiff gave this evidence: "Q. Did they, at one stage, explore with you, prospects about returning to work? A. Yes. Q. At the time they did were you enthused about the idea of trying to get back to some form of gainful employment? A. I certainly was. Q. Would you like to be back in some form of gainful employment? A. Yes. Q. Was what you discussed with Lifetime Care undertaking a Certificate IV in Building? A. Yes. Q. Did you end up proceeding with doing that? A. No. Q. Did Lifetime Care and I don't rely on this as evidence of anything other than the exchange, your Honour, did Lifetime Care express to you any reservations about your undertaking that training? A. They basically said it wasn't very possible to do. HIS HONOUR Q. What would a Certificate IV enable you to do? A. Be a legal builder, your Honour, so go from carpentry to being a builder. Q. But, I mean, necessarily if you became a builder you would hardly be hands on, would you? A. Yes, of course, your Honour. Q. Has any thought been given to try and qualify you to be something like a clerk of works where you could sit in an office and just work things out? A. I don't - no, I don't believe so, your Honour. STONE Q. Is Paul Norris somebody at the Lifetime Care and Support Authority that you deal with in terms of your ongoing rehabilitation? A. Yes. Q. Is Michael Jones somebody who you know who they are? A. Yes. Q. Do you know what Michael Jones' role is? A. I believe he helps people with work or get work. Q. Was it Paul Norris that you dealt with in terms of pursuing this training course? STITT: It's actually Paula. STONE Q. Sorry, Paula, I take it back. Paula Norris? A. Yes. Q. My apologies, I misread it. Were the discussions about that in August or September 2014? A. Yes. Q. Having raised the prospect of pursuing this course, did you ultimately tell Lifetime Care that you weren't going to pursue it? A. Eventually, yes. Q. During the years that you had in the building industry as an apprentice, did you come across any builders who didn't work on the tools and purely had a supervisory role? A. No." Exhibits OO and PP were then tendered and his evidence continued: "Q. I just want to discuss with you a couple of suggestions that have been put as to possible sedentary roles within the construction industry. One of the suggestions raised has been product sales. During the time that you spent in the building trade, did you go and purchase all of those pieces and items of equipment we saw in the pictures earlier? A. Did I purchase them? Q. Yes. A. Yes. Q. What sort of places would you go to buy those? A. Hardware shops. Q. Did that include trade places or have trade places ceased to exist and Bunnings sells to everyone now? A. Bunnings sells to everyone. I bought a lot of tools from Bunnings. Q. If product sales involved having to demonstrate tools, could you do that? A. No. Q. If product sales involved having to load and unload stock, could you do that? A. No. Q. If product sales involved having to help a customer get something off a shelf, could you do that safely? A. No. Q. If product sales involved helping a customer put something in their car after they'd purchased it, could you do that? A. No. Q. If product sales involved participating in annual stocktake, could you do that? A. No. Q. If product sales involved getting up and down a ladder, could you do that? A. No." The plaintiff went on to tell me that he had no computer skills and that LCS had made no other suggestions to the plaintiff about future employment. 1. Ex OO, the Work Options Plan, needs to be considered. It is qualified. Part 3 discusses "Work Readiness". Some of the information contained in that Part are: "Mr Cooper has a range of physical challenges and will require ergonomic evaluation of his potential work option: - Recently began using a prosthetic leg – can be unstable - Left arm paralysed and not functional - He will require multiple minor surgical procedures over the next few years." "Mr Cooper does not appear to have any cognitive issues to be addressed. He is adamant he will attempt this return to work goal regardless of the opinion of others." Part 5 discusses "Exploration of Work Options". The first section of it is this: "Mr Cooper's goal is to become a self employed builder managing residential building projects and employing subcontractors to undertake physical duties. He believes he has the functional capacity to be present onsite and undertake many tasks such as supervision, measure and quote, subcontractor liaison, etc. His partner would provide support with bookkeeping and other administration tasks as she has previously done for his carpentry subcontracting business. Mr Cooper is adamant that he will pursue this occupation "with or without" support from LTCS. Mr Cooper needs to undertake further training before he can become a licensed builder and commence work activities." The next section contains this matter: "Mr Cooper was very specific in his interest in discussing a pathway to the above goal. This requires completion of a Certificate IV in Building and Construction. Given his success in previous training and lack of any cognitive disability he should be able to manage with the cognitive and functional demands of this level of study. I spoke with the Canberra-based training provider Capital Training Institute and confirmed that given Mr Cooper's prior qualifications and experience he is unlikely to struggle with the course components. Given the extend [sic] of Mr Cooper's injuries the question of whether this option is realistic remains to be clarified. He is very determined and the role he is aiming for does not theoretically require him to use tools however he will need to access worksites and monitor the quality of subcontractors' work performance. I spoke with two local building contractors (Poolman King and Urban Design Homes) who know Mr Cooper and his work and their feedback can be summarised as: • In their experience he is capable of pursuing supervisory roles within the industry that are potentially suitable as these would not require use of tools however he would need to develop skills and experience with non-building tasks. • If anyone can achieve this goal it will be Mr Cooper as he is very determined, passionate about building and has a developing range of skills • He needs to be realistic about his limitations and will need significant support from his partner to cope with the complexities of managing building projects. It is logical for Mr Cooper to evaluate work options as close as possible to his pre-injury experience and utilising his transferable skills. Even if Mr Cooper were ultimately not successful at running his own business as a builder, the prerequisite training would provide him with additional skills to consider sedentary roles within the construction industry such as product sales, product estimation and purchasing. Labour market research indicates a small residential building industry with limited growth in his immediate area. Stronger opportunities with predicted and actual growth exist by travelling north to the Shoalhaven/Nowra district (see attached for detail),which is approximately 60 kms and 50 minutes travel. Related roles within construction such as computer aided drafting, product sales, product estimation and quoting, and building inspection were briefly canvassed however Mr Cooper does not want to consider these until he has trialled the building management option." Part 7 lists steps required to achieve the goal. One of these is for the plaintiff to upgrade his computer skills but that was left to the plaintiff to explore. The plaintiff did not remember this (T178.26). Exhibit OO also contains two emails. One is from Michael Jones to Paula Norris, a co-ordinator with LCS dated 21 August 2014 which asked whether it was possible to obtain a work trial as a builder without the Certificate IV qualification required to be a builder. The answer provided was that although it was possible no employer could be found who was able or willing to provide such a trial as employers spoken to "expressed some reservation ... due to the nature of Mr Cooper's injuries." In an email from Ms Norris to Mr Jones, Ms Norris pointed out that LCS's "position, based on the available information and due to a combination of factors, was that it was considered that Buck's goal may be challenging to achieve." By 2 September 2014, the plaintiff had advised that he did not wish to pursue the Certificate IV course "at present". The plaintiff's assertion in evidence that LCS had advised him that "basically ... it wasn't very possible to do" appears to be accurate. 1. Cross-examination of the plaintiff on this issue commences at T255.41. The plaintiff had told someone from LCS that he was interested in building pizza ovens. He admitted that he had built them before the collision. The extent of that experience was only revealed in re-examination. The plaintiff had built one pizza oven for his mother (T290.23). The plaintiff had a friend who was a bricklayer. The bricklayer laid the base for a pizza oven and the plaintiff had started to construct the oven on top of that base. That was the extent of his experience building pizza ovens. Neither construction was a commercial one. The plaintiff said that when he proposed the idea of becoming a builder he was "sort of motivated and dreaming" about his ability to do the physical work involved (T258.24), "very ambitious" (T257.45) and "very enthusiastic" (T258.49). The plaintiff agreed that he could travel in a car to a job and provide a quote, assess the materials required and order them, assess what work needed to be done and employ someone competent to do the work, "but there would be no income out of it" (T257.10). He based that assessment on his experience in the building industry (T257.35). 2. The plaintiff was also cross-examined about using his acquired knowledge to build "spec houses" where he would employ others to do the physical work (T260 – 261) but that requires capital, according to Mr Streeter, of $1 million to $1.2 million (T347 – 348) as well as the ability to do the physical work (T348.38). The plaintiff has neither the capital nor the ability. 3. Much time was spent about exploring the possibility of the plaintiff's obtaining work as a building supervisor. The plaintiff was unaware of the job of clerk of works. Such positions do not exist amongst the builders of houses on the South Coast, with which the plaintiff is familiar. Mr Streeter gave some evidence about the position of a building supervisor: "Q. Is there capacity within the project for you to pay somebody in a purely supervisory capacity? A. Yeah, obviously it can be done, the big housing companies do it. If you start paying supervisors, they have to be licensed and you'd be paying someone $50,000 on top a year to supervise a job and I'd have to have - to have one supervisor, I only run four or five houses, that works out to $10,000 a house, roughly, a home. It wouldn't be viable where seeing the Beechwood, the big companies might have one supervisor and running 70, 70 houses a year. So that's, that's what they work on. So they've got one full-time supervisor, if you know what I mean? Q. And what level of seniority and experience would you expect that supervisor to have? A. I'd say minimum a builder's licence of some sort or a carpentry licence would suffice, but a few years working in the industry, for sure. A senior capacity to handle a fair bit of pressure, sometimes." He gave further evidence on this in both cross-examination and re-examination: "Q. Is this fair and accurate, that if somebody came along today and said: I was thinking of employing Buck Cooper as a clerk of works or as a supervisor, what's your opinion of him? Would you say that he was competent and capable? A. As - I knew him in a physical sense of his carpentry skills. In a mental capacity, as he is now, I don't know what his mental capacity is now, I haven't really spoken to him for ages. So with the right skill sets in supervision, getting a clerk of works is a fair bit of work to be honest with you, nothing like the law profession but still, you still have to have a fair good skill set and mental capacity to supervise. Q. The question I was really directing you to is if somebody came along and said Mr Streeter, or they'd probably say Bob, would you give a reference to Buck Cooper? What would your response be? A. Well, it's difficult. Yes, he was a good organiser of his own work or what we had at our work but to, as a clerk of works, it's a specific market, if you know what I mean, or a supervisor for a big company. These big companies-- Q. I'm just asking you what-- OBJECTION. Q. I don't want to cut you off. All I was just saying, what would you say if somebody came along and said can you give him a reference? STONE: That's what he was trying to say when he was interrupted. HIS HONOUR Q. I think what you're trying to tell me is this: As far as you're aware, he had the potential or has - assuming that he's not suffered any significant brain injury, which appears to be the case and he still could remember what he used to do and how it was done, he hasn't lost his building intellectual knowledge, would it be correct to say that he had the potential to be a supervisor? A. He had the potential to be a supervisor if he, I suppose you get retrained to be in that field of work and someone was willing to put him on in that supervision role. Q. But I mean, the fact is, he hadn't worked in that role so-- A. He'd never worked in that role. Q. It's easy to say yes you can do that if you've seen somebody doing it. A. Yeah. Q. But he had his background as a carpenter and tradesman, was that adequate enough to give him skills which could potentially enable him to be a supervisor? A. Yes. Q. I just wanted to explore with you a little further a question put to you about what's involved in being a supervisor and I think some of the questions put to you involved a supervisor being able to point out to one of the people they were supervising, the inadequacy of some work performed. Do you remember being asked that question? A. Yes, yeah. Q. I assume that involves, on the part of the supervisor, going to the actual location where the work is being performed, is that right? A. That's right. Q. Is supervising something you can do standing on the gateway into the building site? A. No, no it's-- Q. If for example it's the misconstruction of a truss, would you expect a supervisor to be able to get up a ladder to look at the roofing area? A. No. Q. You wouldn't expect that? A. No, you can't - yeah, you couldn't. You have to do that, sorry, if you're going to inspect something on a job, it has to be inspected. Q. Can you supervise from the ground floor only? A. No, no. Q. If, for example, a building site's being excavated and there's work being done on the footings, does supervision require getting down a ladder to get into all what essentially becomes the sub-basement area? A. Yes. Q. Can you do that from just standing at the edge of the hole looking down at it and pointing at it? A. No. Q. In short, is an essential criteria for being a supervisor on a building site being able to get up and down a ladder? A. Yes, it is. It's a physical job actually. As I stated with Beechwood, supervisors may handle 70 different projects at a time that they have in a year, but that's their job and they have to get around and check 70 different houses over a 12 month period basically as they're being built. It's a fair bit of - I wouldn't like to do it anyway, but that's in the bigger construction companies. Q. Do you say not like to do it in terms of the intellectual demands of it or the physical demands of it? OBJECTION. QUESTION NOT PRESSED. HIS HONOUR Q. Tell me, are all houses built on blocks of land that are as flat as bowling greens? A. No. Q. Sometimes, especially in coastal areas, the houses can be built on the steep side of a hill? A. Absolutely. Q. In areas which are physically difficult to get to? A. There's rough terrain on a lot of building sites, it's just what it is until it's been finished. Q. A supervisor as such would need to be able to get over rough, uneven ground? A. Absolutely. Q. And be required to climb, for example, as I said, ladders or staircases or temporary scaffolding even to get to where things are being constructed? A. True, yes." I accept that the plaintiff could not do work as a building supervisor. 1. In the evidence of the plaintiff I quoted in [114] above, the plaintiff expressed his disbelief of being able to work as a clerk of works. In that regard one must consider the caveat raised by Dr Langeluddecke of the plaintiff's preference for work of a practical and physical nature quoted in [109] above. One must also consider the matters raised by the last paragraph of exhibit OO that I quoted in [115] above which point in the direction of clerk of works. In the email of 21 August 2014 from Michael James the question was raised as to whether the Certificate IV was required for those jobs. The answer supplied is: "Only the option of building inspector specifically requires the Certificate IV in Building and Construction although it is likely to enhance his credentials particularly for Product Estimation and Quoting. The Computer Aided Drafting generally requires a minimum of Certificate IV in Engineering Drafting." In modern times I believe that a clerk of works (if that still be the correct title) could not do his or her job without computer skills. The plaintiff denied any (T177.40). Exhibit OO under the heading "Current level of computer competency" says this: "Self described basic email[,] internet and word document use." The plaintiff was not challenged about that information (whatever it means) but on his denial to me of computer skills: "Q. Yesterday, his Honour asked you a question about your ability to use a computer. A. Yes. Q. Do you remember what you told his Honour? A. Yes. Q. You said that you had very little ability and you could only use one finger, and that you basically did not use a computer-- A. Yes. Q. Do you remember telling his Honour that? A. I do. Q. That answer, of course, was false, wasn't it? STONE: I object, your Honour, to my friend's "of course", yes. Well no, I withdraw the objection, let him editorialise. STITT Q. That answer was false, wasn't it? A. No. Q. In fact, you are a prolific user of Facebook. A. Yes, I am. Q. That's Facebook is a matter or an instrument that involves IT and computer, does it not? A. I use my phone. Q. But you use Facebook extensively. A. Yes. Q. And you have your own separate Facebook site. A. Yes. Q. Your wife has a different Facebook site, does she not? A. Yes. Q. And you are perfectly capable of accessing Facebook sites. A. Yes, on my phone. Q. But you understand that that's part of the IT technology, don't you? STONE: I object, your Honour, "It's part of the IT technology.", what does that question even mean? STITT: I think his Honour is aware of what I'm talking about. HIS HONOUR Q. It's part of a system of electronic communication, correct? A. Yes. Q. And to talk with somebody on Facebook often involves your using a pretend keyboard on your phone, pressing the keys to send a message. A. Yes. Q. So if you can press the keys on the phone, what's the difference between that and pressing them on, say, an iPad? A. The difference on my phone is that the keypad is about that high by about that wide. Q. Yes. A. And I can just use my thumb, that's the difference, your Honour. Q. But if the keys are larger, what's stopping you using [the] larger? A. I, I don't use an - and I don't even have an iPad, your Honour, and I don't use a computer. Q. But what would you stop you hitting a computer key, you know, an ordinary typist key with your thumb? A. A normal keyboard, your Honour? Q. Yes. A. I can use one finger. Q. Yes. I mean, yes, I can't use a phone to send a message because of my pudgy fingers, I end up hitting multiple keys. If the keys are larger, it's easier to do it. A. I, I actually personally find it opposite, your Honour, because I can hold it in my hand and just use my thumb like this." In short, the plaintiff uses his mobile telephone to send messages and to upload messages and images onto Facebook. No one has demonstrated how, with one hand, the plaintiff can use a computer keyboard, nor has evidence been adduced that one has been designed for one-handed use. I have concluded that neither by temperament (Dr Langeluddecke's opinion), education, training or ability is the plaintiff able to work as a clerk of works which, on my understanding, still requires inspection of the work site from time to time. 1. The plaintiff also maintains that he is really unable to complete a Certificate IV in Building because he had great difficulty in completing his Certificate III. In chief he said this when discussing his training courses: "Q. Both in terms of the OTEN, O-T-E-N course and in terms of the pre apprenticeship course, did you have to do written work as part of that course work? A. Yes. Q. How did you find the written or academic component of it compared to the practical elements of it? A. I did struggle, especially with more mathematic, mathematical issues. Q. In terms of doing a Certificate I, a Certificate II and a Certificate III, of those which is the easiest and which is the hardest, or are they of an equal nature? A. The Certificate III was the hardest. Q. And as you moved from I to II to III did you notice any difference in the way you were able to cope with each of them? A. Yes. Q. Which was what? A. Which was that Certificate III was much more difficult with trigonometry and things like that, things that I didn't learn at school because I wasn't at school then. Q. Did you get through it on your own or did you get any help from anyone else? A. Actually my partner would help me of a night time, teach, actually teach me the formulas and then I would go to school the next day and, sorry TAFE the next day and I'd be able to do the work." He realises now that his initial enthusiasm to undertake the course was impracticable (T178.30). (c) Other work? 1. In cross-examination, I elicited this evidence form the plaintiff: "Q. I know you want to be an active person. A. Yes, your Honour. Q. And to try and work out something to keep you active, you've thought about things and looked at one scheme and then another scheme and then another scheme, is that correct? A. Most definitely, your Honour. Q. And what you want me to believe is that thus far you haven't come up with any scheme that ultimately is practicable. A. Yes, your Honour." Nothing was suggested to the plaintiff on behalf of the defendant, outside of the plaintiff's trade. How the plaintiff spends his day 1. Towards the end of the evidence-in-chief the plaintiff said this: "Q. In terms of how you now spend your time, you've told us you go to the beach and have other interaction with the children, do you spend time with the dogs? A. Yes. Q. What else do you do? A. Not much to be honest, I sit in my wheelchair and potter around in my garden and stuff. Q. What sort of things will you do in the garden? A. I can prune with one - like, I can secateur pruners, I can prune my trees and I've got trees in tubs. Just general, simple, basic things that don't involve lifting anything heavy, obviously and stuff like that. Q. Did you at one-- HIS HONOUR Q. Do you spend a lot of your time, say, playing on a computer or games or watching television or-- A. Watching television, yes but not a computer. Q. Sorry but no? A. Not a computer, your Honour. I do watch television. STONE Q. Have you ever been much of a computer user? A. No. HIS HONOUR Q. What about things like a Playstation and things like that? Any of those sort of games? A. No, I can't play any of those, your Honour. STONE: They're for the two-handed, your Honour. Q. Is it the case that all of those games consoles-- A. Yeah. Q. --require usually two thumbs? A. Yes, it is. Q. You haven't been introduced to any disability game console for the one thumb? A. No." Mr Stitt QC turned early in cross-examination to this issue: "Q. Yesterday Mr Cooper, his Honour asked you a question about what you did during the day. Do you remember the answer that you gave to him? A. Yes. Q. You said that you did very little, that you sat around and watched TV, and otherwise you didn't participate in any other activities. A. On the average day, that's correct. Q. But the truth is Mr Cooper that you are very active in mechanical repairs of your motor vehicles are you not? A. I am not active at it. I try my best. Q. You in fact spend a considerable amount of your time repairing and building motor vehicles? A. No. I have bought and sold motor vehicles but that's not what I do. Q. Let's just take it a bit at a time. You have from time to time bought and sold motor vehicles? A. Yes that's true. Q. You buy motor vehicles, you do them up and you sell them? A. That's not entirely true. Q. Not entirely true, well let's just take it a bit at a time. You buy vehicles which are capable of being improved mechanically? A. Yes. Q. You improve them mechanically and then sell them? A. I do not improve them mechanically." 1. The plaintiff admitted that he was "a car enthusiast" (T219.20). He was cross-examined at some length about his dealings with various motor vehicles (not including his off-road motorcycle) and about related financial matters. At the end of the evidence on this topic I concluded that the plaintiff's dealings with motor vehicles represented only an interest or hobby, not some source of income. Six motor vehicles were discussed: 1. the plaintiff's blue work utility (Ex MM, photograph 1) (see [110] supra), which he sold in late 2014 (T214.43); 2. a very old Hyundai Excel, which was Jade's car, purchased shortly after 19 August 2012, and sold at approximately the same time as he sold his work utility (T214.46); 3. a Nissan Skyline R33, thought to be manufactured in 1993, also described as a GTST, bought after the motorcycle collision (T208.03) for $3,300 (T208.24) with money borrowed from his stepfather, Mr Ben Dowling, and sold at the beginning of 2015 for $3,700; 4. a Holden "Maloo" single cab utility, named by the plaintiff "Oh so sexy", which acquired the NSW Registration 050 – SXY, images of which are exhibits 1, 7 and 8, bought for $35,000 in cash (T199.39) at the end of 2014 (T202.46); 5. a Toyota Supra 420 (image: Ex 4) bought for Jade in August 2014 for $14,000 cash, which is "in the garage" (T197.25) but for which there appear to be plans (T197.35: "The dream in the long run would be able to do stuff to it"); 6. a four door utility owned by Jade, and used by her, because the "old car", the Toyota Supra 420, is "in the garage" (T211.42). 1. It can be seen from this analysis that before 16 October 2013 the plaintiff was driving his work utility, and that was sold in late 2014 at approximately the time he acquired the Holden Maloo which he now drives, its being an automatic vehicle and having a knob attached to the steering wheel so that he can steer it one handedly. Before 16 October 2013 Jade was driving the Hyundai Excel which was sold at the time it was replaced by the Toyota Supra 420 but this vehicle had been consigned to the garage, with a view to its being "improved" and Jade has now acquired a four door utility. The Nissan Skyline seems to have been the only vehicle bought "on spec" and resulted in a profit of $400! 2. The defence was greatly interested in the funds for the purchase of the Maloo and the Toyota Supra 420. $50,000 in cash was withdrawn by the plaintiff from the plaintiff's account with the St George Bank at Ulladulla and $35,000 was used to purchase the Maloo and $14,000 was used to purchase the Toyota Supra 420. To buy the Maloo, the plaintiff travelled, carrying cash, to Queensland. However, the source of the funds was not illicit. This evidence was eventually given: "Q. When precisely then did you withdraw the $50,000-odd in cash? A. August 2014. Q. August 2014? A. I believe, yes, give or take a month or two. Q. The only income, apart from Centrelink, which you disclosed in 2013, was $6,286 and in 2014 was zero? A. Yes. Q. Where did the $50,000-odd in cash come from? A. That was from my superannuation, I had a certain amount of superannuation and I had cover for permanent disability in, I believe it was Cbus, if my memory is right and I had a certain amount of money in there and I had compensation of a certain amount of money that would be paid out under permanent disability or illness. Q. What were those amounts? A. Sorry? Q. What were those amounts? A. I believe it was $104,000." Mr Stitt QC did not then pursue any suggestion that the plaintiff was earning funds to support himself and his family by dealing with motor vehicles. 1. Prior to the source of funds for purchasing motor vehicles being established, the plaintiff was also questioned about working on the motor vehicles. He admitted buying a supercharger for the Maloo and doing some work on the dashboard of the Nissan R33, with the assistance of his wife, Jade, over 4 or 5 days (T207). It was suggested to the plaintiff that he had painted racing stripes on the Maloo, but that was in fact white ribbon used on the Maloo when it was the "wedding carriage" for the plaintiff and his wife on 29 November 2014. 2. After questioning the plaintiff about his dealings with motor vehicles, Mr Stitt QC, turned to another issue but returned to the question of how the plaintiff spent his days now at T247.21. After an objection this evidence was given: "HIS HONOUR Q. Unless there is something special on and you're at home for the day you spend the majority of your time watching television? A. That is correct and out in the garden your Honour. Q. Or out in the garden yes. But even so even if you're out in the garden you still might end up spending most of the time watching television? A. Yes your Honour. Q. More than half the time as you tell us? A. Yes your Honour. STITT Q. Did you want his Honour to believe from those answers that you gave that that was all the activity that you participated in? A. That's not all the activity I participated in. Q. But his Honour asked you what you did and that's what you gave as your answer. Did you want him to believe that that was all the activity that you did, that you do? A. No, on a average day I'm generally at home. Q. But you are able to engage in quite a range of activities other than just watching television are you not? A. Yes. Q. You didn't tell his Honour about those did you? A. I'm, I'm talking about a specific - like generally when I'm at home. Q. For example you participate in karate do you not? A. On - actually no. I have been to karate once since my accident for my grading which was about roughly nine weeks after my accident. Q. And your grading was an upgrade to a red belt, wasn't it? A. It was an orange belt." Eventually a film of this activity was played (see exhibit TT). I sought to describe what it shows at T298 where I incorrectly described the orange belt as "red". It shows the plaintiff participating in a karate ceremony, not participating in the actual sport. The plaintiff does not have a left leg prosthesis. He hops on his right leg and stands on his right leg and was unsteady at times both when hopping and standing. He was assisted by another person, a lady, in the ceremony who removed his yellow belt. The plaintiff was wearing a black sling to support his left arm. This activity could not be described as karate and there is nothing in it which is inconsistent with anything the plaintiff had to say about himself. There is no evidence that otherwise the plaintiff has done anything at karate other than watch his children participate. 1. In short, there is nothing which the plaintiff said about his activities in daily life since the collision which reflects adversely on the plaintiff's credit. Credibility 1. At [76] above, after describing the motorcycle collision, I pointed out that I was not then able to discuss liability as the defendant's attack on the plaintiff's credibility included matters occurring subsequent to the collision. At [108] above I pointed out the challenge to the plaintiff's credibility turned mainly around two matters, firstly whether the plaintiff had an ability to work and, if so, whether he wished to use it, and, secondly, the related issue of how the plaintiff spent his day when not in hospital. I have now canvassed those matters. 2. The nadir of the plaintiff's credibility was his attempt to conceal the reason why he left high school. I discussed this issue at [7] above: "The plaintiff, with his free source of cannabis, was known to his "mates" as a source of supply. He did supply cannabis to his "mates" who included some of his "school friends". This became known to the school authorities who asked the plaintiff "to leave and not come back."" To use pejorative language, the plaintiff was trafficking an illicit substance to minors, to school children. This issue was not mentioned in evidence in chief: cf T82 to T83. The plaintiff said he left the Shoalhaven Anglican College at Milton because "he was becoming the age of being rebellious and stupid, basically" (T83.07) and that when he transferred to Ulladulla High School he "was bullied a fair bit" (T82.21). 1. Mr Stitt QC turned very early in his cross-examination of the plaintiff to this issue: "Q. What you suggested was that you left high school because you were being bullied. A. That's correct. Q. That's what you told his Honour, wasn't it? A. That's correct. Q. That answer was false, wasn't it? A. No. Q. I'd like you think about this carefully, Mr Cooper, that answer was false because you were, in fact, expelled from high school, were you not? A. I don't believe I was formally expelled. Q. Mr Cooper, you were expelled from high school for the reason that you were selling drugs. Isn't that the truth? A. I don't recall that … Q. Mr Cooper, you knew perfectly well when his Honour asked you that question that the reason that you didn't go back to school because you were expelled for selling drugs to the school children. Isn't that the truth? A. No. Q. What part of it is not correct? A. I don't remember being expelled. Q. But you told doctors that you were expelled for selling drugs, did you not? A. I was asked to leave. … Q. Mr Cooper, at the time you were at high school which is the time that I'm asking you questions about and which was the time that his Honour asked you his question, at that time you had free and liberal access to cannabis. A. Yes. Q. And you advertised that fact amongst your friends. You made it known that you were a source of cannabis, did you not? A. Yes." Mr Stitt QC, a highly skilled cross-examiner, used language appropriate to his task, pejorative language, "selling drugs to school children" to describe the activity in which the plaintiff had been engaged. It drew the answer he sought: a denial of selling drugs to school children. However, a different response was elicited when "school children" was replaced with "mates", his peers. 1. I can understand this failure of the plaintiff's candour. He had only ever been to Court before to answer criminal charges. He may never have given evidence before. What is in issue in these proceedings is very important to him: to be able to make some provision for his wife and children for their future (cf T293.28). His evidence is to be weighed by a judge of whom he knows nothing and whom he might expect to have very negative views about drug traffickers. At the time he is confronted with the allegation of "selling drugs to school children" he is an adult man with young children of his own. The impulse to deny the pejorative allegation was overwhelming. However, when his conduct was put in less pejorative terms it was admitted. 2. The plaintiff commenced giving his evidence in chief at 11.48am on Tuesday 31 May 2016. That evidence took up the rest of that day and recommenced at 9.50am on Wednesday 1 June 2016. Cross examination commenced around 10.30am and was only completed at the end of a long day (after 5.00pm, if my memory be correct) not long before it was necessary to leave Nowra for the view. I had a long opportunity to view the plaintiff giving his evidence. He was challenged from the commencement of cross-examination and he was quite stressed but as the questioning continued and other topics were canvassed he became more relaxed, more open. I ultimately formed the view that the plaintiff, despite the nadir I have just described, was attempting to tell the truth as far as he knew it. Cross examination of the plaintiff on the issues I commenced to discuss at [109] confirm me in the view I ultimately reached concerning the plaintiff's credibility: a broad acceptance of it, with reservations to some discrete issues. (See T482.10). 3. One such issue, for example, concerns the drugs the plaintiff was using in August 2012, after learning of Jade's infidelity. I believe it is more probable than not that in the existential crisis the plaintiff suffered after learning of Jade's infidelity, his drug and alcohol binge included taking some amphetamines: see [26] above. The plaintiff can be forgiven for forgetting this and, like many witnesses, a lack of memory of an event or circumstance led to a denial of it. On the other hand, photographs of the plaintiff taken prior to the collision were admitted in re-examination (exhibit QQ). They show me that the plaintiff, a few months before the collision (T299.12) had very well defined abdominal musculature. Mr Stitt QC then sought leave, and obtained it, to further cross examine the plaintiff. His opening question (T300.03) was this: "Q. These photographs of your torso and musculature seem to indicate that you were on steroids. Is that accurate?" That question was objected to and rejected. However, further evidence then given persuades me that the plaintiff did not use chemical means to enhance his appearance, but only a weight lifting regime in his garage. The plaintiff's sobriety at the time of the collision 1. Now having dealt with the issue of the plaintiff's credibility, I can return to a remaining issue on liability: the plaintiff's sobriety/intoxication at the time of the collision. The following are admitted facts in these proceedings (see exhibit F): 1. that following the accident, a blood sample was taken from the plaintiff at St George Hospital (at 11.30am); 2. that the blood sample number was 707820; 3. that upon testing of blood sample 707820, no alcohol was detected. It should be noted that this blood sample was taken more than six hours after the time of the collision. The parties have agreed that, given the effluxion of time and the medical treatment of the plaintiff before the blood sample was taken, the 0% BAC is non-determinative as to whether the plaintiff had been drinking on the evening of 15 October 2013 and the early morning of 16 October 2013 (see T378.20). This agreement reached by the parties on the morning of Friday 3 June 2016 obviates the necessity for me to consider exhibit 23, records of SGH said by the defendant to be relevant to the plaintiff's haemodynamic state between his admission to SGH and the taking of the blood sample at 11.30am. In short, the agreed facts recited above and the BAC of 0% prove nothing. 1. What direct evidence is there of the plaintiff's alcohol ingestion prior to the collision? Firstly, there is the plaintiff's evidence as to drinking 4 or 5 small bottles of beer at West Nowra after helping Lamont with the move to Lamont's new residence in that suburb, as recited in [48] above. After arriving at the plaintiff's residence, the plaintiff was drinking vodka and lemonade or vodka and lemon squash, with Lamont. They were still drinking that beverage during the supper of steak and chips prepared by Jade after she arrived home at about 10.30pm: see [50] above. Between [51] and [52], I discussed Lamont's alcohol consumption. At the end of [51] I made this finding: "it seems likely to me that Lamont did consume some beer at the plaintiff's residence, and, therefore, it is quite possible that the plaintiff did so too." At [52] I observed that "when drinking ceased is completely unclear: all one can find is that it persisted through the late meal." 2. Some inferences can be drawn from other facts. On the night of 15/16 October the plaintiff was Lamont's host. The plaintiff invited Lamont and his family to the plaintiff's house. The plaintiff and Jade prepared a meal for Lamont and Ms Bates. After the meal the two men went to the plaintiff's shed: presumably at the plaintiff's invitation for some activity suggested by the plaintiff. The two men then went fishing. There is no evidence that Lamont took fishing gear from West Nowra to Lake Conjola. The fishing gear is likely to have been the plaintiff's. The plaintiff was the "local" man: he would know when and where to fish. The men may have encountered the kangaroo on their return from fishing. If the plaintiff were tired and wished to go to bed, he could have invited Lamont to do the same. It seems unlikely that Lamont would have gone riding through the streets of Lake Conjola by himself – he would have to have some "local" knowledge, which only the plaintiff had. Not only was the plaintiff Lamont's host, he was also the older of the two. The plaintiff was 25 years old and Lamont was 20 years old. Such seniority would only enhance the plaintiff's position as host. Equally, as he was the host, if Lamont were too tired to continue any activity proposed by the plaintiff, one would not expect the plaintiff's objecting to his going to bed. These considerations lead me to draw a further inference that their states of sobriety may have been similar. That inference might also explain why neither man perceived the other to be so intoxicated that activity ought not to continue. 3. At [51] I observed that a "fair summary of [Ms Bates'] …. evidence is that Lamont was a frequent drinker and when he drank he was a heavy drinker." At T276, the plaintiff made a number of admissions that when he started drinking, he could drink heavily: "Q. … When you were into alcohol, you started drinking, you'd keep going? A. Generally, yes. Q. That was your practice, wasn't it? A. Yes …. Q. It had been your practice, once your started drinking, not to stop? A. Not every single time, your Honour, but I can – there have been times like that, yes, your Honour." The inference to be drawn from this evidence, and the state of intoxication of Lamont, is that the two men only ceased to consume alcohol when the supply of it, the bottle of vodka and any beer brought from West Nowra, ran out. 1. After a series of questions commencing at T276.50, the plaintiff made these concessions (at T378.35): "Q. … you said you would not have driven the way described, that is, on a public road at night without any lights burning on your vehicle, if you were sober, correct? A. Yes, your Honour. Q. So can one infer from the fact that that's what happened on the morning of 16 October that you may not have been sober? A. Yes." A little later this evidence was given: "Q. Would you agree it is possible you were drunk? A. Yes, your Honour. Q. You agree it was possible that you were under the influence of alcohol? A. Yes, your Honour. Q. It is possible you were affected by alcohol? A. Yes, your Honour. Q. That you have no idea as to a state of sobriety, correct? A. That's, that's correct your Honour. Q. So anything is possible? A. Yes, your Honour." 1. Again, the question comes back to the extent of the plaintiff's intoxication. I have already drawn an inference from the evidence that the states of sobriety of each of the men may have been similar. "Similar" does not mean the "same". It was submitted on behalf of the defendant that each of the plaintiff and Lamont had drunk the same amount of alcohol, a submission which appears to be based on that well-known Australian institution, the "shout." This submission was ridiculed by Mr Stone SC. Drawing on other social mores of our society I can readily accept that the plaintiff, as host, would not have drunk more of the alcohol provided by his guest, Lamont, than did his guest. Such would be considered inhospitable. Equally, Lamont had something to celebrate, the plaintiff did not. However, everything demonstrated by the known facts points to the plaintiff and Lamont acting in concert since 12.30pm on 15 October 2013. My ultimate conclusion is that it is likely that the two men consumed a similar amount of alcohol over the afternoon and night in question. 2. That finding does not mean that, therefore, they were in fact similarly affected by their alcohol intake. The evidence of Dr Perl must be borne in mind, in particular what she said in par 5 of her report quoted in [52] above. During the hearing I referred Counsel to the decision of the Court of Appeal in Zlojutro v GIO (NSW) (unreported, 11 August 1995, 40569/89) which is cited in Clyde v State of NSW (TAFE Commission) (1995) 12 NSWCCR 541. The plaintiff's seniority to Lamont indicates to me (as well as their respective alcohol habits) that the plaintiff was the more experienced, practised or seasoned drinker, and, therefore, as Dr Perl has pointed out, the effect of a similar alcohol intake on the plaintiff would not be as great as on Lamont. 3. Before I leave this difficult area, some further observations must be recorded. It is common for those involved in accidents in which serious injuries are sustained, in particular head injuries, to suffer from post-traumatic amnesia. A complaint of pre-traumatic amnesia is uncommon. It is common human experience that those who imbibe a large amount of alcohol cannot recall what they did "the night before". The complaint of both the plaintiff and Lamont of pre-traumatic amnesia seems to me to be more consistent with a large alcohol intake prior to the collision. The other matter to be borne in mind is the Air Ambulance record which I considered at [77] above. I there said that one entry in that record indicates that its compiler (probably a paramedic) believed that the plaintiff was affected by alcohol and that the plaintiff's alcohol consumption played a part in the collision recorded in the same document. This opinion could be based on a physical observation, e.g. that the plaintiff smelt of alcohol. Weight should be given, therefore, to this contemporaneous document. The SGH "Discharge" document (see my comment on it at the beginning of [79] above) contains this history: "Buck Cooper presented to this facility following a motor bike accident. He was intoxicated at the time but wearing a helmet." However, no other record of SGH before me contains any similar history and it seems likely to me that it was taken from the Air Ambulance record, a copy of which is contained in the SGH records. This history is secondary and no weight can be placed on it other than as an interpretation of the Air Ambulance record. Playing "Chicken"? 1. Since the evidence on this issue is scant, I can conveniently quote it: "Q. Mr Cooper, do you know the game played with motor vehicles and motorbikes called "chicken"? A. I've heard of chicken, yes. Q. You know what's involved in playing the game of chicken with moving motor vehicles, don't you? A. I don't believe I know anyone that's ever played chicken with motor vehicles. Q. No, that's not the question. You know what's involved if you play chicken with moving motor vehicles, don't you? A. I have an understanding of what, what would happen, yes. Q. Well it's pretty simple. You get two people on a long straight stretch of road, and they drive towards each other, and the first one that turns aside is "chicken". You understand that, don't you? A. I understand that. … Q. Do you know that one of the elements of the game of chicken is to hold your line if you are a participant? You hold your line and don't deviate. A. Yes. Q. You understood that. A. Yes. Q. Did you understand the circumstances of this accident involved you holding your line? A. I had no idea about anything to do with the accident until I went, until I went into Ulladulla Police Station for the questioning." The omitted matter was an objection. The last answer was followed by a further objection and Mr Stitt QC them moved to another topic. Unlike Russian roulette, it takes two drivers or riders to play this "game". Lamont was called by the defence and was not asked any questions about playing the "game". No application was made by the defence to have Lamont declared an unfavourable witness. Given the paucity of evidence about this issue, I am unable to accept that this "game" was being played by the plaintiff and Lamont immediately prior to the collision. Bearing in mind the onus of proof, and what was said about it in Briginshaw v Briginshaw (1938) 60 CLR 336 by Dixon J at 361-362, and the seriousness of this allegation, substantial evidence would need to be adduced by the defendant on this issue – but there is none. An accidental collision 1. At [67] above I made findings as to how the collision occurred. It appears likely to me that the plaintiff and Lamont set out on a ride together but, for some reason the evidence does not disclose, the plaintiff's start on this ride was delayed. Lamont drove ahead, but when he realised the plaintiff was not with him, he made a U turn on LCER to seek to find the plaintiff. Hence they were riding in opposite directions on LCER when the collision occurred. Why the collision occurred remains a mystery. One can speculate. For example, due to fatigue and intoxication Lamont may have fallen asleep, a "micro sleep", and crossed the centre line of LCER leading to the collision. Another possibility is that Lamont, having "found" the plaintiff on LCER, decided to make a U turn around the plaintiff, but due to his intoxication misjudged the manoeuvre. One thing, however, is perfectly clear: the collision would not have occurred if Lamont had remained on the correct side of the road. Did Lamont owe the plaintiff a duty of care? 1. The defence submitted that this was a most unusual accident. The Defendant's Outline of Closing Submissions (MFI 15) contains this synopsis: "32. It is submitted that on the facts of this case Mr Lamont owed no duty of care to the Plaintiff. Such a submission is made good by the following factors: (a) Both men had been in each other's company since at least the mid afternoon on Tuesday, 15 October 2013. (b) Both men had been drinking together since at least the late afternoon on 15 October 2013 (c) Both men were significantly intoxicated at the time of the accident. (d) Both men had not had any sleep (or alternatively any substantial sleep) in the period before the accident. (e) Both men voluntarily elected to participate in the activity of motorcycle riding together in conditions where it was dark. (f) Neither of the bikes were fitted with headlights and both were unregistered off road motorcycles. The Plaintiff was unlicensed. (g) Both men set off on the motorcycling endeavour when it was dark (i.e. before nautical sunrise). (h) The enterprise in which both men were engaged was dangerous, unnecessary and recreational. Neither the Plaintiff nor Mr Lamont were using the motorcycles for work purposes, to travel home or to go to the shops by way of example. (i) The Plaintiff was at home before he engaged in the activity and there was no reason why he could not have elected to remain at home and declined to participate in the joint activity. (j) The activity in which the two men had agreed to jointly participate was obviously and inherently dangerous given that it was dark, both men were intoxicated and fatigued, both motorcycles were unregistered and neither motorcycle was fitted with headlights. 33. There can be no doubt that both the Plaintiff and Mr Lamont were acting unlawfully at the time of the accident. The fact that an injury is sustained at a time when a plaintiff is acting unlawfully does not, of itself, prevent a plaintiff from revering damages for negligence." 1. Mr Stitt's oral submissions emphasised a number of these unusual features: 1. the vast majority of motor vehicle collisions occur between vehicles being driven or ridden by persons who are strangers to each other; here, the plaintiff and Lamont had been in each other's company since the morning of Tuesday 15 October 2013: they had been in each other's company for at least 18 hours; 2. motorcycle on motorcycle collisions are rare, as motorcycles are very manoeuvrable vehicles; 3. despite the fact that the plaintiff and Lamont were engaged in a common activity, riding their motorcycles together, the collision occurred when they were riding in opposite directions on the same road; 4. the collision was on the left hand side of each rider/motorcycle, not on the right hand side as one would normally expect; 5. speed was a causative element (but this is a necessary factor in any collision as two stationary objects cannot collide); 6. neither motorcycle had any headlight, tail light, brake light or reflector (but my analysis of the motorcycles and the lighting on LCER does not indicate that lack of visibility was a relevant factor in the collision); 7. there is no evidence of any braking by either motorcycle (e.g. skid marks or the sound of squealing brakes) or of any evasive action by either rider (there could have been an attempt to do so by either or both of the riders but neither remembers the collision and there is no eye-witness); 8. both riders were skilled, experienced riders (but each was impaired by alcohol ingestion); 9. the noise generated by the motorcycles ought to have drawn the attention of each rider to the approach of the other; Mr Lonsdale at No123 LCER heard the two motorcycles start up and take off (see [65] above) and this noise woke Ms Bates up (see [56] above) and Mr Sandilands at No161 LCER was awoken by the noise of Lamont's machine (see [66] above) and see [75] above; 10. the activity in which the plaintiff and Lamont were engaged was "entirely unnecessary"; Mr Stitt QC was prone to use the adjective "recreational" to describe the activity but since that is a term of art in Civil Liability Act 2002, Part 1A, Division 5, it is better not used; the activity was purely for their pleasure or leisure (but much motoring can be so described). 1. Do any of these factors, or considerations, or any concatenation of them, require me to find that Lamont did not owe the plaintiff a duty of care? The first relevant authority is The Insurance Commissioner v Joyce (1948) 77 CLR 39; [1948] HCA 17. Rich J commenced his judgment (at p48) with this observation: "From a legal point of view this case is somewhat out of the ordinary." The plaintiff, Joyce, lived in the Brisbane suburb of Morningside. The defendant, Kettle, appears to have been a friend. They were at the plaintiff's house. At 5pm on 19 June 1945, the two men left in Kettle's car, being driven by Kettle, to go to Kettle's house in the nearby suburb of Bulimba in order to pick up Mrs Kettle, with the intention of returning to Joyce's home to pick up Mrs Joyce and then for the two couples to attend wedding festivities in another house in Morningside. The distance between the Joyce and Kettle homes was about two miles. The trial judge (Philp J) found that they then engaged in a "carousal" (the word used by Rich J). Just before 7pm Kettle caused his motor car to collide with a stationary, parked truck on Bulimba Rd, Bulimba, facing in the same direction as Kettle had been travelling. The truck's tail light was on. It was struck on the off-side rear mudguard. The police concluded that it was hit by the near side of Kettle's car. Kettle lost control of his car and crashed into the garden fence of a property in McConnell Street across the road from the end of Bulimba Road, where it made a T intersection with McConnell Street. The plaintiff was found unconscious in the passenger seat. An ambulance came and took the plaintiff to hospital where a doctor observed that he smelt of alcohol. Police were also called. An officer searched for the driver, Kettle, but he was not found until about 9pm. He was found asleep under lantana bushes on an adjoining allotment. The police officers formed the view that Kettle was drunk and arrested him and charged him with being drunk. Six hours after the accident Kettle was released on bail. He then said that he had been driving along Bulimba Street with Joyce as a passenger and that, through misjudgment, the near side of his car collided with a parked truck and that caused him to lose control of the vehicle. He saw that Joyce was injured and he went to a house and rang for an ambulance. Joyce commenced proceedings in the Supreme Court of Queensland claiming damages for the injuries he received in the collision. Kettle, the defendant, did not enter an appearance. The Insurance Commissioner elected to be joined as a defendant pursuant to statute. Inter alia, the Insurance Commissioner entered this plea: "that the defendant William Kettle was at the time of the said collision so affected by the consumption of intoxicating liquor as to render him physically and mentally incompetent to drive his car with proper care and the plaintiff with full knowledge of the facts and of the nature and extent of the risks then about to be incurred agreed to be driven by the said defendant, William Kettle and the collision was caused or contributed to by the said incompetency of the said defendant William Kettle." Neither Joyce nor Kettle gave evidence. Philp J gave judgment for The Insurance Commissioner. The Full Court of the Supreme Court entered judgment for the plaintiff. The High Court reversed the decision of the Full Court. It is important to note that at this time contributory negligence was a complete defence to an action for negligence and voluntary assumption of risk (volenti non fit injuria) was also a complete defence (with one exception, this defence is abolished by MACA section 140). 1. Latham CJ said this: "19. The onus is upon the plaintiff to establish his case. The plaintiff was present at the trial, but did not give evidence. The facts proved are as consistent with (a) contributory negligence of the plaintiff, (b) voluntary acceptance of obvious risk by the plaintiff as with (c) negligence of Kettle causing the plaintiff's injuries. The principle of law which is applicable in such circumstances is established by the leading case of Wakelin v. London & South-western Railway Co. (1886) 12 App Cas 41 : and see Mersey Docks & Harbour Board v. Procter (1923) AC 253 . In Wakelin's Case (1886) 12 App Cas 41 the injured person was the husband of the plaintiff who sued for damages for negligence causing his death. Lord Halsbury L.C., after pointing out that it was incumbent upon the plaintiff to establish that her husband's death had been caused by some negligence of the defendants, so that if that fact were not proved the plaintiff failed, continued: "If the simple proposition with which I started is accurate, it is manifest that the plaintiff, who gives evidence of a state of facts which is equally consistent with the wrong of which she complains having been caused by - in this sense that it could not have occurred without - her husband's own negligence as by the negligence of the defendants, does not prove that it was caused by the defendants' negligence. She may indeed establish that the event has occurred through the joint negligence of both, but if that is the state of the evidence the plaintiff fails, because 'in pari delicto potior est conditio defendentis'. It is true that the onus of proof may shift from time to time as matter of evidence, but still the question must ultimately arise whether the person who is bound to prove the affirmative of the issue, i.e., in this case the negligent act done, has discharged herself of that burden" (1886) 12 App Cas, at p 44 . In my opinion these observations apply to the present case. The plaintiff's case depends upon his affirmatively establishing the proposition that his injuries were caused by the negligence of the defendant Kettle. This conclusion, however, rests upon inference from all the proved facts, and the other inferences mentioned, namely contributory negligence on the part of the plaintiff and voluntary acceptance of an obvious risk, are equally consistent with those facts. Accordingly, it should be held that the plaintiff's claim has not been established. The appeal should be allowed and the judgment for the defendant should be restored. (at p48)" Rich J also dealt with the matter on an evidentiary basis. After succinctly stating the facts, his Honour said this: "To Philp J. they signify that the parties had been on a carousal and that the defendant Kettle while drunk had guided the car into a truck and thence to the fence at right angles with the street. He therefore found that a prima-facie case of negligence had been made out. The question remains whether a plea of volenti non fit injuria had also been made out. Obviously the question was one to be decided on circumstances. But when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box a court is entitled to be bold. This is what Philp J. said: - "Whether the plaintiff was also drunk and whether he was so drunk as to be unaware of Kettle's drunkenness are matters upon which, of course, the plaintiff has failed to give evidence. All I know is that he smelt of alcohol after the accident. Upon the evidence I hold that the plaintiff knew of the risks incident to Kettle's state of drunkenness and voluntarily took those risks." I think his Honour sitting as a jury was entitled to draw this conclusion. Common sense tells us that the probability is that the passenger quite well knew that the driver was unfit for his task." 1. Dixon J said this: "20. No one doubts that the plaintiff must make out his case but his case consists in the allegation of negligent driving and resulting injury. That case he has, in my opinion, clearly established according to the ordinary principles governing proof by circumstantial evidence. That Kettle was the driver and the plaintiff the passenger admits of no doubt. That the car driven by Kettle struck the parked motor truck side to side and then proceeded about eighty yards into the fence at the end of the road is proved circumstantially and by admissions. Such a thing unexplained implied negligence. There may be causes which would account for a driver colliding with the rear of a stationary vehicle exhibiting a tail light and then after travelling a considerable distance driving over the footway of a transverse street and into a front garden. But they are not easy to imagine. The defendant Kettle accounted for it by an error of judgment and loss of control. The police constable's evidence adds the illuminating and confirmatory detail that the defendant an hour and a half to two hours later was very drunk. The probability that the accident was caused by the negligent and unskilful driving of the defendant Kettle is so high that, in my opinion, no other inference could be drawn. (at p55) 21. The driver of a vehicle who takes a passenger, although gratuitously, is under a prima-facie duty to exercise common care and skill in the management of the vehicle and is liable to the passenger if he is injured through a failure on the driver's part to do so. (at p55) 22. In the course of the argument in Lygo v. Newbold [1854] EngR 86; (1854) 9 Ex 302, at p 305; [1854] EngR 86; (156 ER 129, at p 130) , Parke B. remarked that a person who undertakes to provide for the conveyance of another, although he does so gratuitously, is bound to exercise due and reasonable care. The remark has been adopted and applied in Harris v. Perry & Co. (1903) 2 KB 219 and Pratt v. Patrick (1924) 1 KB 488 : see also Karavias v. Callinicos (1917) WN 323 . There is a statement by Lord Chelmsford in Moffatt v. Bateman (1869) LR 3 PC 115, at pp 121-2 that a person offering another a seat in a carriage which he is driving certainly, if liable at all for an accident afterwards occurring, could only be so for negligence of a gross description. The accident in that case arose from a defect in the vehicle and, whatever may be the application of his Lordship's statement, it cannot be treated as applying to the personal negligence of the driver in the management of the vehicle. The duty of such a driver is to exercise the ordinary care which is expected of one responsible for the proper management and control of a moving vehicle because the safety of the occupants of the vehicle, as well as of others, depends upon his skill and care. (at p56) 23. The case of a passenger in a car differs from that of a pedestrian not in the kind or degree of danger which may come from any want of care or skill in driving but in the fact that the former has come into a more particular relation with the driver of the car. It is because that relation may vary that the standard of duty or of care is not necessarily the same in every case. At one extreme is the trespasser and at the other the passenger who has made an express contract containing terms regulating his rights in case of injury. But prima facie a gratuitous passenger is entitled to the ordinary care for his safety which may reasonably be expected in the management of the kind of conveyance in which he accepts a place. A man who obtains permission to ride upon a timber jinker is not entitled to any more care on his behalf than is included in the proper management of such a vehicle. But in a car intended as a conveyance, the gratuitous passenger may expect prima facie the same care and skill on the part of the driver as is ordinarily demanded in the management of a car. Unusual conditions may exist which are apparent to him or of which he may be informed and they may affect the application of the standard of care that is due. If a man accepts a lift from a car driver whom he knows to have lost a limb or an eye or to be deaf he cannot complain if he does not exhibit the skill and competence of a driver who suffers from no defect. It is perhaps not often of much practical importance whether the passenger is regarded as voluntarily assuming the risks which are involved and so absolving the car driver from a standard of duty to which otherwise he would be subject, or the passenger is considered primarily to be entitled only to that standard of duty or of care which arises from the relation that he has established, namely a passenger in a car driven by a defective driver. It would seem to be clear that in either case the burden of proving the special facts or unusual conditions would be upon the defendant. When it is said that the law of negligence assumes the principle of volenti non fit injuria not to be applicable, as it was said by Sir Frederick Pollock in a passage adopted by Asquith J. in Dann v. Hamilton (1939) 1 KB 509, at p 517 , no more is meant than that the duty of care persists beyond or outside the specific conduct or state of things which is not the subject of consent. A party may be disabled from complaining that a state of things or specific conduct implies actionable negligence, though otherwise he might have done so. (at p56) 24. In the case of a driver whose ability to manage and control a car or whose judgment and discretion in doing so is impaired by drink, the position of the voluntary passenger has been variously determined by the application of three different principles. In the first place, he has been regarded as depending upon a relation which by accepting a place in the conveyance he sets up between himself and the person responsible for its management. For those who believe that negligence is not a general tort but depends on a duty arising from relations, juxtapositions, situations or conduct or activities, the duty of care thus arises. For those who take the contrary view, the standard of care is thus determined. But whatever be the theory, the principle applied to the case of the drunken driver's passenger is that the care he may expect corresponds with the relation he establishes. If he knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty. (at p57)" His Honour went on to consider the defence of volenti non fit injuria, but it is unnecessary to consider that issue, bearing in mind its effective statutory abolition. The real question is whether last dictum of Dixon J which I have quoted is still good law? 1. The next decision is Nettleship v Weston [1971] 2 QB 691; [1971] 3 All ER 581. The headnote in the authorised report sums up the factual background and the findings at nisi prius: "The plaintiff, an experienced driver, agreed to give a friend's wife some driving lessons in her husband's car, after satisfying himself that the car was insured against risk of injury to a passenger. He took her out on the road and found her a careful learner. But on the third occasion, when she was holding the steering wheel and controlling the pedals and he was moving the gear lever and handbrake, she failed to straighten out after turning left, and panicked. Despite the fact that the car was moving at walking pace and the plaintiff's efforts to straighten out, it mounted the kerb and struck a lamp standard. The plaintiff sustained injuries including a broken knee-cap. The learner was shortly afterwards convicted of driving without due care and attention. The plaintiff brought an action for damages in respect of the learner's negligence. She denied negligence, alleged contributory negligence, and claimed alternatively that the plaintiff had impliedly consented to run the risk of injury. Thesiger J. dismissed the plaintiff's claim on the grounds, inter alia, that he had voluntarily assumed the risk of injury and that in any event the learner was not in breach of the only duty owed to her instructor, which was to do her best, the standard of care being reduced by reason of the special relationship. He made an alternative finding that if there was a breach of duty the plaintiff had been contributorily negligent and that the parties were equally to blame." Denning MR considered the liability of a learner driver in crime, to those on or near by a public road, towards passengers in the car and finally towards his or her instructor: "The Responsibility of the Learner Driver in Criminal Law Mrs. Weston was rightly convicted of driving without due care and attention. In the criminal law it is no defence for a driver to say: "I was a learner driver under instruction. I was doing my best and could not help it." Such a plea may go to mitigation of sentence, but it does not go in exculpation of guilt. The criminal law insists that every person driving a car must attain an objective standard measured by the standard of a skilled, experienced and careful driver. That is shown by McCrone v. Riding[1938] 1 All E.R. 157, where a learner driver "was exercising all the skill and attention to be expected from a person with his short experience," but he knocked down a pedestrian. He was charged with driving "without due care and attention" contrary to section 12 of the Road Traffic Act 1930, now section 3 (1) of the Road Traffic Act 1960. The magistrates acquitted him, but the Divisional Court directed them to convict. Lord Hewart C.J. said, at p. 158, that the "standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver." Again in Reg v Evans [1963] 1 QB 412 an experienced driver was overtaking another car at the dip in the road. He crashed head-on into an oncoming car and the driver of it was killed. He was charged with causing death by driving in a manner dangerous to the public, contrary to section 1 of the Road Traffic Act 1960. Salmon J. directed the jury that "even although the dangerous driving was caused by slight negligence, the slightest negligence on his part, he is guilty …" The Court of Criminal Appeal affirmed the conviction, and said, at p. 418: "… if a driver in fact adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive, or even doing his incompetent best. Such considerations are highly relevant if it ever comes to sentence …" So the criminal law is clear. No one would dream of throwing any doubt on it. Mrs. Weston was convicted in accordance with it. The conviction is admissible in civil proceedings as prima facie evidence of negligence: see Stupple v. Royal Insurance Co. Ltd. [1971] 1 QB 50, 72. The Responsibility of the Learner Driver Towards Persons on or near the Highway Mrs. Weston is clearly liable for the damage to the lamp post. In the civil law if a driver goes off the road on to the pavement and injures a pedestrian, or damages property, he is prima facie liable. Likewise if he goes on to the wrong side of the road. It is no answer for him to say: "I was a learner driver under instruction. I was doing my best and could not help it." The civil law permits no such excuse. It requires of him the same standard of care as of any other driver. "It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question": see Glasgow Corporation v. Muir [1943] A.C. 448, 457 by Lord Macmillan. The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity: see Richley (Henderson) v. Faull. Richley, Third Party [1965] 1 W.L.R. 1454 and Watson v. Thomas S. Whitney & Co. Ltd. [1966] 1 W.L.R. 57. The high standard thus imposed by the judges is, I believe, largely the result of the policy of the Road Traffic Acts. Parliament requires every driver to be insured against third party risks. The reason is so that a person injured by a motor car should not be left to bear the loss on his own, but should be compensated out of the insurance fund. The fund is better able to bear it than he can. But the injured person is only able to recover if the driver is liable in law. So the judges see to it that he is liable, unless he can prove care and skill of a high standard: see The Merchant Prince [1892] P. 179 and Henderson v. Henry E. Jenkins & Sons [1970] A.C. 282. Thus we are, in this branch of the law, moving away from the concept: "No liability without fault." We are beginning to apply the test: "On whom should the risk fall? "Morally the learner driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her. The Responsibility of the Learner Driver towards Passengers in the Car Mrs. Weston took her son with her in the car. We do not know his age. He may have been 21 and have known that his mother was learning to drive. He was not injured. But if he had been injured, would he have had a cause of action? I take it to be clear that if a driver has a passenger in the car he owes a duty of care to him. But what is the standard of care required of the driver? Is it a lower standard than he or she owes towards a pedestrian on the pavement? I should have thought not. But, suppose that the driver has never driven a car before, or has taken too much to drink, or has poor eyesight or hearing: and, furthermore, that the passenger knows it and yet accepts a lift from him. Does that make any difference? Dixon J. thought it did. In The Insurance Commissioner v. Joyce(1948) 77 C.L.R. 39. 56, he said: "If a man accepts a lift from a car driver whom he knows to have lost a limb or an eye or to be deaf, he cannot complain if he does not exhibit the skill and competence of a driver who suffers from no defect. … If he knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty." That view of Dixon J. seems to have been followed in South Australia: see Walker v. Turton-Sainsbury[1952] S.A.S.R. 159; but in the Supreme Court of Canada Rand J. did not agree with it: see Car and General Insurance Co. v. Seymour and Maloney(1956) 2 D.L.R. (2d) 369, 375. We have all the greatest respect for Sir Owen Dixon, but for once I cannot agree with him. The driver owes a duty of care to every passenger in the car, just as he does to every pedestrian on the road: and he must attain the same standard of care in respect of each. If the driver were to be excused according to the knowledge of the passenger, it would result in endless confusion and injustice. One of the passengers may know that the learner driver is a mere novice. Another passenger may believe him to be entirely competent. One of the passengers may believe the driver to have had only two drinks. Another passenger may know that he has had a dozen. Is the one passenger to recover and the other not? Rather than embark on such inquiries, the law holds that the driver must attain the same standard of care for passengers as for pedestrians. The knowledge of the passenger may go to show that he was guilty of contributory negligence in ever accepting the lift — and thus reduce his damages — but it does not take away the duty of care, nor does it diminish the standard of care which the law requires of the driver: see Dann v. Hamilton [1939] 1 K.B. 509 and Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264, 270. I would only add this: If the knowledge of the passenger were held to take away the duty of care, it would mean that we would once again be applying the maxim: 'Scienti non fit injuria." That maxim was decisively rejected by the House of Lords in cases between employer and workmen; see Smith v. Baker & Sons [1891] A.C. 325: and by Parliament in cases between occupier and visitor: see section 2 (4) of the Occupiers' Liability Act 1957, overruling London Graving Dock Co. Ltd. v. Horton [1951] A.C. 737. We should not allow it to be introduced today in motor car cases even though it was backed by Sir Owen Dixon. But that was in 1948. He might think differently today. The Responsibility of a Learner Driver towards his Instructor The special factor in this case is that Mr. Nettleship was not a mere passenger in the car. He was an instructor teaching Mrs. Weston to drive. Seeing that the law lays down, for all drivers of motor cars, a standard of care to which all must conform, I think that even a learner driver, so long as he is the sole driver, must attain the same standard towards all passengers in the car, including an instructor. But the instructor may be debarred from claiming for a reason peculiar to himself. He may be debarred because he has voluntarily agreed to waive any claim for any injury that may befall him. Otherwise he is not debarred. He may, of course, be guilty of contributory negligence and have his damages reduced on that account. He may, for instance, have let the learner take control too soon, he may not have been quick enough to correct his errors, or he may have participated in the negligent act himself: see Stapley v. Gypsum Mines Ltd. [1953] A.C. 663. But, apart from contributory negligence, he is not excluded unless it be that he has voluntarily agreed to incur the risk." 1. Salmon LJ, dissenting, agreed with and adopted the reasoning of Sir Owen Dixon in Joyce, "with minor reservations". He went on to say this: "The duty of care springs from relationship. The special relationship which the passenger has created by accepting a lift in the circumstances postulated surely cannot entitle him to expect the driver to discharge a duty of care or skill which ex hypothesi the passenger knows the driver is incapable of discharging. Accordingly, in such circumstances, no duty is owed by the driver to the passenger to drive safely, and therefore no question of volenti non fit injuria can arise." Megaw LJ commenced his reasons by quoting dicta of Sir Owen Dixon in Joyce and then said this: "Theoretically, the principle as thus expounded is attractive. But, with very great respect, I venture to think that the theoretical attraction should yield to practical considerations." The immediately following paragraph is the gist of his argument: "As I see it, if this doctrine of varying standards were to be accepted as part of the law on these facts, it could not logically be confined to the duty of care owed by learner drivers. There is no reason in logic why it should not operate in a much wider sphere. The disadvantages of the resulting unpredictability, uncertainty and, indeed, impossibility of arriving at fair and consistent decisions outweigh the advantages. The certainty of a general standard is preferable to the vagaries of a fluctuating standard." At p709 his Lordship said: "In my judgment, in cases such as the present it is preferable that there should be a reasonably certain and reasonably ascertainable standard of care, even if on occasion that may appear to work hardly against an inexperienced driver, or his insurers. The standard of care required by the law is the standard of the competent and experienced driver: and this is so, as defining the driver's duty towards a passenger who knows of his inexperience, as much as towards a member of the public outside the car; and as much in civil as in criminal proceedings." Judgment was entered for the plaintiff for half of his agreed damages, Salmon LJ agreeing with Denning MR on that issue. Joyce's case binds me, the present case does not, but the arguments of Denning MR and Megaw LJ are attractive. 1. The next decision to which I have been referred is Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34. The facts are, in my view, best canvassed at the commencement of the joint judgment of Gummow and Callinan JJ: "52. Mr Berryman who was then 22 years of age, drank sufficient alcohol in the company of Sally Inch Joslyn on Friday evening, 25 October 1996, to be so intoxicated as to feel "fairly crook" on the following morning. He worked during the day on Saturday, rested for a time, and then, at about 9pm went to a party at a property near Dareton in south-western New South Wales. With one interruption, at about 11.30pm, Mr Berryman spent his time at the party, until about 4am, drinking alcohol. By that hour he must have been, indeed he admitted that he was, and as the objective evidence of the amount of alcohol in his bloodstream some hours later established, beyond doubt, quite drunk. He went to sleep on the front seat of his utility motor vehicle. In his evidence he claimed to have no further recollection until he heard a scream, and realized that he was a passenger in his vehicle which was turning over. 53. Mr Berryman had been friendly with Ms Joslyn before the Friday night preceding the accident. He was aware that she had lost her driving licence on her conviction for driving a motor vehicle with a blood alcohol content of 0.15g/100ml. 54. Ms Joslyn said that she and Mr Berryman spent the Friday evening drinking together until after midnight at hotels in Wentworth. Afterwards they returned to Ms Joslyn's residence where they continued drinking. 55. Ms Joslyn took a bottle of whisky with her to the party on the following Saturday evening. She travelled as a passenger in a car with three other women. Ms Joslyn drank from the bottle at the party. Whether anyone else also did so she was unable to say. Again, as the objective evidence of alcohol in her blood showed, she too must have been seriously adversely affected by the consumption of it. The reading, some hours later, was in her case, 0.102g/100ml. Indeed Ms Joslyn was observed by others at the party to be "quite drunk and staggering about" at 4.30am. 56. Early in the morning of the Sunday Ms Joslyn had placed her swag on the ground beside Mr Berryman's vehicle and had gone to sleep. Ms Joslyn said she did not know where the keys to the vehicle were when she fell asleep but she knew she had them when she woke not long after daylight, having heard Mr Berryman moving about in his vehicle. No one else was up at that time. There was a discussion between her and Mr Berryman, to whom she gave the keys to his vehicle which he drove, with Ms Joslyn as a passenger into Mildura, along the road upon which the vehicle was later to overturn. The journey took some 15 to 20 minutes. When they arrived at a McDonald's café, Mr Berryman entered, ordered food, paid, drove towards the river, stopped and ate the food. He did not drink alcohol in that time. 57. Ms Joslyn said Mr Berryman had commenced the drive back to Dareton, but, at some time after they entered Hollands Lake Road she noticed he was dozing off. She must have reproached him for doing so for he said, "Well, you drive the car then." He stopped the vehicle and exchanged places with Ms Joslyn. She then commenced to drive it and did so to the point of the accident. 58. Ms Joslyn had last driven a vehicle three years earlier. She had at some time previously told Mr Berryman of that. She did not see the curve until the last minute. "It was just there all of a sudden and it turned really sharply and the car wouldn't go round the bend." 59. By the time the vehicle entered the curve Ms Joslyn had been driving, she estimated, for a couple of minutes at most. She could not say at what speed she travelled as the speedometer of the vehicle was broken. 60. Describing the curve where the vehicle left the road and overturned, she said that it looked as if it were just a simple curve "and then it goes right back around sharply". That was something she realized when she was already in the curve. Mr Berryman suffered serious injuries in the accident." 1. The trial was heard by Boyd-Boland ADCJ. Berryman had not only sued Joslyn but also the Wentworth Shire Council, alleging that it had failed to erect an adequate sign warning of the sharp corner. His Honour found for the plaintiff and apportioned 90% of liability to Joslyn and 10% to the Council. His Honour assessed the plaintiff's contributory negligence to be 25%. The Court of Appeal set aside his Honour's finding of contributory negligence ((2001) 33 MVR 441). That decision was reversed by the High Court and the matter was remitted to the Court of Appeal for further consideration. The High Court held that both at common law and under Motor Accidents Act 1988 section 74(2) the plaintiff was guilty of contributory negligence. He was a voluntary passenger in a motor vehicle involved in an accident and he was aware or ought to have been aware that the driver's ability to drive the vehicle was impaired as a consequence of the consumption of alcohol. Joslyn did not raise as a defence that she owed the plaintiff no duty of care because he knew or ought to have known that she was intoxicated, unlicensed, and had not driven for three years. 2. However, McHugh J provided a valuable overview of the relevant legal principles when discussing the question of contributory negligence: "19. In the case of a passenger who accepted a lift from an intoxicated driver, Australian courts showed a marked reluctance to use contributory negligence as the ground upon which the law might or ought to deny a right of action to the passenger. But this reluctance does not seem to have been the product of any sympathy for the passenger. Australian courts recognised that contributory negligence was an appropriate and available category for characterising the passenger's conduct. But generally they preferred to hold either that the driver had not breached any duty of care owed to the passenger or, more often, that the passenger had voluntarily accepted the risk of suffering the relevant harm. Perhaps the Australian courts thought that, if contributory negligence was the ground for denying liability, juries would take a benign view of the conduct of unmeritorious passengers and hold that the passenger's conduct in accepting a lift with an intoxicated driver was not unreasonable. 20. Preferring no breach of duty as the mechanism for determining liability enabled the courts to control the issue - whether there was any evidence of breach of duty being a question for the judge and not for the jury. Moreover, the passenger had the onus of proving breach. The other preferred alternative was to characterise the conduct of the passenger as the voluntary assumption of the risk of harm (volenti non fit injuria). That was a jury issue. It therefore gave the court less control of the issue, and the onus was on the defendant to establish the defence. But the defence of volenti non fit injuria meant that the plaintiff would invariably fail once it was established that he or she knew of the driver's intoxication. In that respect, it had considerable advantages over contributory negligence in controlling the claims of the passenger who, together with the driver, had embarked on a drinking spree and then accepted a lift from the driver. 21. The reluctance of Australian courts to use contributory negligence as the ground of disentitlement was surprising having regard to the comments of the editor of the Law Quarterly Review concerning such cases and the United States jurisprudence. In Dann v Hamilton, Asquith J had held that the defence of volenti non fit injuria did not apply to a passenger who knowingly accepted a lift from an intoxicated driver. In Dann, the driver "was under the influence of drink to such an extent as substantially to increase the chances of a collision arising from his negligence". Despite this finding, Asquith J rejected the plea of volenti. His Lordship appears to have taken it for granted that the driver owed a duty of care and that it had been breached. Curiously, contributory negligence was not pleaded as a defence. Dann was powerfully criticised by Dr A L Goodhart, the editor of the Law Quarterly Review, who argued "that judgment should have been entered for the defendant on the ground that the plaintiff was guilty of contributory negligence." Neither Asquith J nor Dr Goodhart appeared to think that no breach of duty was the appropriate ground for denying liability. United States jurisprudence also held that a passenger, like the plaintiff in Dann, was disentitled to sue because his or her conduct constituted contributory negligence. 22. Some years before Dann was decided, the issue arose for decision in the Full Court of the Supreme Court of New South Wales. In Finnie v Carroll, the Full Court held that the trial judge had erred in refusing to direct the jury that the plaintiff could not recover if the jurors concluded that the driver's intoxication caused the collision and the plaintiff knew of that condition. Gordon J, who gave the judgment of the Court, said that the defendant's immunity did not arise from the application of the maxim volenti non fit injuria. It arose "because there was no breach of any duty A owed to B to protect him from that danger of which he was fully aware when he accepted the invitation." As in Dann, the issue of contributory negligence appears to have been regarded as irrelevant. 23. Another 20 years elapsed before the issue came before this Court for the first time in The Insurance Commissioner v Joyce (Latham CJ, Rich and Dixon JJ). Latham CJ and Dixon J both held that the passenger's entitlement to sue could be defeated on any one of three grounds: no breach of duty, volenti non fit injuria and contributory negligence. Latham CJ held that the passenger's claim failed because of contributory negligence and the voluntary acceptance of an obvious risk. Rich J held that the plea of volenti non fit injuria had been made out. Dixon J preferred to decide the case on the basis that a passenger who "knowingly accepts the voluntary services of a driver affected by drink ... cannot complain of improper driving caused by his condition, because it involves no breach of duty." 24. However, Latham CJ and Dixon J disagreed as to the conditions that gave rise to the various defences. Latham CJ said that, if the passenger was sober enough to know and understand the danger of driving with the defendant in a drunken condition, he was guilty of contributory negligence and had also voluntarily assumed an obvious risk. But his Honour also said that, if the passenger was not sober enough to know and understand the danger, he had disabled himself from avoiding the consequences of the negligent driving and was guilty of contributory negligence. In contrast, Dixon J said that "for the plaintiff, who was not driving the car, to drink until he was too stupid to observe the defendant's condition can hardly be considered contributory negligence of which the accident was a reasonable or natural consequence." His Honour also held that the pleas of no breach of duty and volenti non fit injuria both required "some degree of actual knowledge on the part of the passenger of the alcoholic conditions he is accepting." Dixon J would have dismissed the defendant's appeal on the ground that the defendant had not established any of the three grounds of disentitlement. On this issue, Dixon J was clearly right and Latham CJ and Rich J wrong. Both Latham CJ and Rich J overlooked that the onus was on the defendant to prove the defences of volenti and contributory negligence and that on the evidence it was not possible to say whether those defences were made out. But as I later indicate, I disagree with the analysis by Dixon J of the defence of contributory negligence in the case of an intoxicated passenger. 25. The issue of the appropriate ground of disentitlement again came before the Court in Roggenkamp v Bennett where the trial judge had held that the plaintiff, having accepted a lift with an intoxicated driver, had failed to establish a breach of the duty owed to him. Like the trial judge, Webb J held that the defendant had not breached the duty of care that he owed to the passenger. However, McTiernan and Williams JJ dismissed the plaintiff's appeal on the ground that the defence of volenti non fit injuria had been established. 26. In Jansons v The Public Curator of Queensland, Lucas J also held that the plaintiff's claim failed because the defendant had proved that the plaintiff had voluntarily assumed the risk of injury as the result of the driver's intoxication. And in Jeffries v Fisher, the Full Court of the Supreme Court of Western Australia upheld the trial judge's finding that the plaintiff had voluntarily assumed the risk of suffering the harm sustained. But these four cases were the high water mark of the defence of volenti in cases where the driver was intoxicated. Since then the defence has failed in numerous cases - invariably on the ground that the passenger failed to appreciate the risk of harm or did not intend to take the risk. 27. It is difficult to escape the conclusion that the introduction of apportionment legislation has influenced the courts in characterising the conduct of the passenger as contributory negligence, rather than as a voluntary assumption of risk or as a determinant of the standard of care owed by the driver to the passenger. Apportionment legislation enables the court to apportion responsibility for the plaintiff's damages according to the respective responsibility of the plaintiff and the defendant for that damage[31]. Since the introduction of apportionment legislation, contributory negligence has been the preferred characterisation of the conduct of the plaintiff who accepts a lift from a driver known to be intoxicated. 28. In New South Wales and in South Australia, the legislature has even intervened to abolish the defence of volenti non fit injuria in motor accident cases. Instead, legislation makes knowledge of the driver's intoxication a matter of contributory negligence and apportionment. But the defence of volenti is still available - at least theoretically - in other States and Territories. 29. What then of the issue of no breach of duty in cases where the passenger knows that the driver's ability is impaired by alcohol and suffers injury as the result of that impairment? Has it survived the judicial and legislative demise of the doctrine of volenti? While the reasoning of this Court in Cook v Cook and Gala v Preston stands, the answer must be: "Yes". The plea of no breach of duty - perhaps even a plea of no duty in an extreme case - is still open in the case of a passenger who accepts a lift with a driver known to the passenger to be seriously intoxicated. In Cook and Gala, this Court applied the now rejected doctrine of proximity to hold that in exceptional cases the content of the duty of care owed by a driver to a passenger varies in proportion to the passenger's knowledge of the driver's capacity to drive. In Cook, the Court held that, where the passenger has invited an inexperienced and unlicensed driver to drive, the standard of care "is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which [the driver] is placed." In so holding, the majority judgment relied on the no breach of duty statements contained in the judgments of Latham CJ and Dixon J in Joyce and the judgment of Webb J in Roggenkamp. In Gala, Mason CJ, Deane and Gaudron JJ and I held that no relevant duty of care was owed by a driver to a passenger in respect of the driving of a stolen car in circumstances where both parties had consumed large quantities of alcohol. We said: "[E]ach of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest. In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care." 30. Now that this Court has rejected the doctrine of proximity, it may be that it would no longer follow the reasoning in Cook and Gala. Moreover, the notion of a standard of care that fluctuates with the sobriety of the driver is one that tribunals of fact must have great difficulty in applying. While Cook and Gala stand, however, they are authorities for the proposition that, in special and exceptional circumstances, it would be unreasonable to fix the standard of care owed by the driver by reference to the ordinary standard of care owed by a driver to a passenger. In some cases, knowledge by a passenger that the driver's ability to drive is impaired by alcohol may transform the relationship between them into such a category. 31. It is unnecessary in this case to say any more about the authority of Cook and Gala. Neither in this Court nor in the courts below has Ms Joslyn suggested that she did not breach the duty of care owed to Mr Berryman." 1. Incidentally, it should be noted that the ultimate result in Berryman v Joslyn was a finding of 60% contributory negligence. 2. Chronologically, the next case to which the plaintiff referred me was Mackenzie v Nominal Defendant [2005] NSWCA 180. Peter Mackenzie was a shearer. He was 34 years old at the time of the accident in question. He lived in Gilgandra as did Aaron Brown, a rouseabout aged about 27 at the time. Mackenzie's "pride and joy" was a Harley Davidson motorcycle. In March 1999, Mackenzie's rider's licence was suspended for two years. As he generally would not allow anyone else to ride his Harley Davidson, he allowed its registration and insurance to expire. On Saturday 16 December and Sunday 17 December 2000, both Mackenzie and Brown "spent a considerable time" drinking alcohol. Despite being intoxicated, Mackenzie was found to have known that Brown was unlicensed, inexperienced and wholly unfit to be allowed to ride Mackenzie's motorcycle and also that Brown was severely intoxicated. Nevertheless, Mackenzie allowed Brown to ride the Harley Davidson with Mackenzie as his pillion passenger. In the evening of 17 December 2000, about six or seven kilometres south of Gilgandra, the motorcycle being ridden by Brown ran off the Newell Highway and Mackenzie was severely injured. It was agreed that his damages were $4,750,000. Inter alia, between [4] and [22] of his reasons, Giles JA (with whom Stein AJA and Gzell J agreed) described the pleadings and the issues. It is clear that the Defendant did not allege that Brown owed no duty of care to the plaintiff. However, contributory negligence was alleged. The particulars of contributory negligence included an allegation that Mackenzie had "voluntarily assume[d] the risk of injury" by becoming the pillion passenger, having allowed Brown to ride the motor cycle when he knew or ought to have known that Brown was unlicensed and grossly impaired by the consumption of alcohol. 3. The matter was heard by Cooper ADCJ who held that Brown had ridden the motorcycle negligently, that the plaintiff had been guilt of contributory negligence and that the plaintiff's damages should be reduced by 100%. Giles JA referred to Joyce in [48] but merely as authority for the proposition that a passenger who should have been aware of a driver's intoxication, including a passenger who had allowed himself to become intoxicated so as to be unable to appreciate the driver's condition, could be found to have been guilty of contributory negligence. At [99] his Honour said: "If the intoxicated appellant, knowing despite his intoxication that Mr Brown was unlicensed, inexperienced and wholly unfit to be allowed to ride the motor cycle, and was severely intoxicated, invited Mr Brown to ride the motor cycle and joined him as pillion passenger, the judge's determination was open to him." However, he went on to say: "102. In my opinion, the only occasion for questioning the judge's determination is that he did not take into account that the conduct of the appellant in putting Mr Brown in the driver's seat, with the knowledge found, was affected by his own intoxication so as to be impulsive and without full consideration of what might occur. This is another form of discretionary error in House v The King, failure to take into account a relevant matter. Although not directly so put, complaint in that respect appears to me to have lain within the appellant's submissions, although obscured by focus on capacity to act and have awareness as found by the judge and failure to recognise the basis for his assessment. 103. The judge assessed culpability and causal potency, as to the former meaning the degree of departure from the standard of conduct of the reasonable man, upon his findings as to the appellant's conduct and knowledge. While the appellant knew, despite his intoxication, that Mr Brown was unlicensed, inexperienced and intoxicated, and would ordinarily not have countenanced his riding the motor cycle, but nonetheless allowed him to do so and joined him as pillion passenger, was it relevant that he was affected in the manner suggested by Professor White? 104. In my opinion it was relevant, although depending on other matters the relevance could operate in either direction: see Talbot-Butt v Holloway (1990) 12 MVR 70." That case concerned an intoxicated pedestrian. After citing extracts from the judgments in that case, his Honour continued: "108. Just as the pedestrian's intoxication could be taken into account, because it was one of the facts in the case and could ameliorate her culpability and the causal potency of her contributory negligence, so can the appellant's intoxication be taken into account as part of the circumstances in which the appellant put Mr Brown in the driver's seat. His conduct was that of a man who, in his intoxicated condition, acted impulsively and without full consideration of what might occur. I do not think that anything in s 138(2) of the MAC Act or s 5R of the CL Act has displaced the reasoning of Clarke JA, with which Kirby P must have agreed. It should be noted that in Nicholson v Nicholson a finding of contributory negligence as directed by s 74(2) of the MA Act did not compel a just and equitable reduction. 109. The judge appears to have regarded the appellant as having engaged in a deliberate act of negligence. No doubt because the appellant's case was pitched at the level of incapacity, he appears not to have addressed the lesser case within it. In my opinion, to this extent appealable error has been shown. 110. In many cases, the plaintiff's intoxication will not ameliorate his culpability or the causal potency of his contributory negligence. The further enquiry must be into the circumstances in which the plaintiff became intoxicated. A plaintiff who goes on a drinking spree with the driver, contemplating from the beginning that he will be a passenger in a vehicle driven by the driver, will only add to his departure from the standard of care of the reasonable man. A plaintiff who becomes intoxicated when being the passenger of an intoxicated driver is not in contemplation can say that his departure from the standard of care of the reasonable man is not complete, and perhaps that his conduct was less important in causing the damage. Although in a different context, such an enquiry underlies the dicta of Macrossan CJ in McPherson v Whitfield and of Lee J at 484-5 in the same case. 111. In the present case Mr Coles' house seems to have been within walking distance of the appellant's house, and the drinking was done without any driving or riding in contemplation. On the other hand, the appellant let himself get into a thoroughly intoxicated condition which, on any consideration before he did so, would have been seen as inimical to any rational and well thought out decision, whether as to riding the motor cycle or anything else. Deliberate drinking to the point of severe intoxication exposed him to acting impulsively and without full consideration of what might occur, which happened to occur in relation to riding the motor cycle. The departure from the standard of care of the reasonable man at this point cannot be ignored in the degree of departure in putting Mr Brown in the driver's seat. 112. I do not think the justice and equity of the reduction in damages is, in these circumstances, significantly moved in the appellant's favour. He did put Mr Brown in the driver's seat, knowing that he was unlicensed, inexperienced and intoxicated; and acting irrationally and without well thought out decision was to be expected when he began and maintained his drinking. In my opinion, the just and equitable reduction in all the circumstances is 80 per cent." 1. Of greater present interest is the litigation between Paul Anthony Imbree and Jesse McNeilly: at first instance before Studdert J [2006] NSWSC 680, on appeal to the Court of Appeal [2007] NSWCA 156; (2007) 47 MVR 536, and then on further appeal to the High Court [2008] HCA 40; (2008) 236 CLR 510. The leading judgment in the High Court was a joint judgment of Gummow, Hayne and Kiefel JJ. Their Honours provided this succinct statement of the relevant facts and of the earlier litigation: "The facts 28. Before the accident which gives rise to this litigation, the appellant had had a great interest in four-wheel drive trips in and around Australia. He had undertaken several off-road trips to far north Queensland and to the Northern Territory. On the trip which leads to this litigation, the appellant was accompanied by two of his sons (Paul and Reece), an adult friend (Mr Ben Watson), and the first respondent (a friend of Paul Imbree junior). Paul Imbree junior was then aged 16 years and had just obtained a New South Wales learner's permit to drive a vehicle. 29. The appellant knew that the first respondent had previously driven a four-wheel drive vehicle owned by his grandparents. The appellant knew however that the first respondent did not have a learner's permit. When the party travelled through Dubbo and Nyngan they tried to find an office of the Roads and Traffic Authority at which the first respondent could obtain a permit, but the offices were closed. 30. In the later part of their journey from New South Wales to the Northern Territory, the appellant allowed first his son Paul, and then the first respondent, to drive for about 30 to 40 minutes each. He told both that they should not exceed 80 kmh. Each drove uneventfully. The trip proceeded into the Simpson Desert and again the appellant allowed each of the two boys to drive on two occasions. This driving was in more challenging conditions and again it passed without concern. After visiting Ayers Rock and Kings Canyon, the party headed towards Hermannsburg and Alice Springs on Larapinta Drive. Initially the road was hilly and corrugated and the appellant and Mr Watson drove. When the terrain changed, and the road was what the appellant would later describe as "a very wide two lane dirt track with no significant corrugations compared to what [he had] struck earlier", he allowed first his son Paul, and then the first respondent, to drive. 31. When the first respondent drove, the appellant sat beside him in the front passenger seat. For a time the driving proceeded without any event out of the ordinary. Both the appellant and the first respondent then saw a piece of tyre debris on the road. Instead of straddling and driving over the debris, the first respondent steered the vehicle to the right. The appellant yelled at the first respondent, telling him to brake. He did not. When the vehicle was on the far right-hand side of the road, the first respondent turned sharply to the left and accelerated. This caused the vehicle to roll over. 32. The appellant suffered spinal injuries that have rendered him tetraplegic. The proceedings below 33. The appellant brought proceedings in the Supreme Court of New South Wales against the first respondent as driver and the second respondent as owner of the vehicle. The primary judge, Studdert J, gave judgment for the appellant. His Honour rejected the respondents' contention that the appellant had voluntarily assumed the risk of injury, found that the first respondent had "behaved with carelessness over and above what could be attributed merely to inexperience", and further found that the appellant had been contributorily negligent. The appellant's damages, assessed at more than $9.5 million, were reduced by 30 per cent on account of his contributory negligence. 34. The respondents in this Court appealed to the Court of Appeal; the appellant cross-appealed. Both the appeal and the cross-appeal were allowed in part. The Court of Appeal (Beazley, Tobias and Basten JJA) considered a number of issues that are not pressed in this Court. In particular, questions of illegality, voluntary assumption of risk, and quantum of damages, were considered by the Court of Appeal, but none of these questions is raised in this Court. 35. All members of the Court of Appeal rightly treated this Court's decision in Cook v Cook as establishing that "[a]ctions which are fairly to be seen as the result of [a learner driver's] inexperience and lack of qualification rather than as having been caused by superimposed or independent carelessness did not, of themselves, constitute a breach of the duty of care" which the learner driver owed to a licensed driver who was supervising the learner. The Court of Appeal divided in opinion about whether, in this case, the driver of the vehicle (the present first respondent) had breached the duty of care he owed his front-seat passenger (the present appellant). The majority (Beazley JA and Basten JA) found that the driver had been careless, but that the carelessness lay in swerving off the road rather than, as the primary judge had found, steering around the tyre debris. Beazley JA further found the driver to have been careless in accelerating as he did. The third member of the Court (Tobias JA) concluded that the driver's acceleration and over-steering did not breach the standard of care of a driver with the limited skills and experience of this driver. 36. The Court of Appeal also divided in opinion about what apportionment of liability should be made on account of the contributory negligence of the present appellant as the instructor or supervisor of the first respondent as driver. Basten JA assessed the appellant's contribution at two-thirds; Beazley JA assessed his contribution at one-half. Tobias JA, who had concluded that the driver was not negligent, went on to consider contributory negligence and agreed with Basten JA that the appellant's contribution should be assessed as two-thirds." The joint judgment, in its second paragraph, pointed out that the issue was whether Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 should still be followed: "26. What was the standard of care that the first respondent (the driver) owed the appellant (the passenger)? Was it, as this Court held in Cook v Cook, "that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which the pupil is placed"? Or was it, as the appellant submitted, the same objective standard of care as a licensed driver? 27. These reasons will show that the standard of care which the driver (the first respondent) owed the passenger (the appellant) was the same as any other person driving a motor vehicle - to take reasonable care to avoid injury to others. The standard thus invoked is the standard of the "reasonable driver". That standard is not to be further qualified, whether by reference to the holding of a licence to drive or by reference to the level of experience of the driver. Cook v Cook should no longer be followed." 1. Their Honours went on to say this about the circumstances in which Cook v Cook was decided: "39. Cook v Cook was decided in 1986. It was one of a large number of decisions made by this Court during the 1980s about the law of negligence. Many of those cases focused upon duty of care. Thus this Court considered what duty of care a public authority owed in exercising or not exercising its powers and spoke of a "general dependence" upon public authorities to perform their functions with due care. This Court also re-expressed the duty of care owed by an employer to an employee as a non-delegable duty: a duty to ensure that reasonable care and skill was exercised. And this Court rejected a theory of concurrent general and special duties owed by an occupier of land to an entrant in favour of determining only whether, in all the relevant circumstances, the defendant owed a duty of care under the ordinary principles of negligence. 40. These decisions about duty of care must be understood in their historical context. In 1977, in Anns v Merton London Borough Council, the House of Lords had formulated a two-stage test for determining duty. In 1985, this Court rejected that approach preferring, instead, to analyse questions of duty of care by reference to proximity. And for a time, both before and after the decision in Cook v Cook, proximity was seen as the unifying criterion of duties of care. Many of the decisions about duty of care that have just been mentioned made extensive reference to proximity. 41. By 1999, if not earlier, this Court had rejected proximity as a satisfactory tool for determining whether a defendant owed a duty of care. Further, the three-stage approach described in Caparo Industries Plc v Dickman and subsequently adopted by the House of Lords was rejected in this Court. 42. The reasons of the plurality in Cook v Cook depended, in important respects, upon the application of notions of proximity." They then pointed out how proximity informed the decision in Cook v Cook and, commencing at [45], reconsidered the earlier decision. Towards the end of this section of the judgment, their Honours said: "49. There have been various statements in this Court to the effect that in many well-settled areas of the law of negligence the existence of a duty of care and its content present no difficulty and that one such example concerns the responsibilities of a motorist on the highway to avoid causing injury to the person or property of another. The reference to "special and exceptional circumstances" in the passage from Cook v Cook set out above invites the question why the relevant legal relationship should be regarded as any more specific than that of driver and passenger. As Dias and Markesinis pointed out shortly after Cook v Cook was decided, the trend of English authority, including Nettleship v Weston, had been to eschew distinctions between categories of drivers of motor vehicles. 50. Further, the translation of the particular knowledge of a plaintiff into the identification of a separate category or class of relationship governed by a distinct and different duty of care encounters various difficulties. These are both doctrinal and practical. 51. The fundamental reason why Cook v Cook should no longer be treated as expressing any distinct principle in the law of negligence is that basic considerations of principle require a contrary conclusion. No different standard of care is to be applied in deciding whether a passenger supervising a learner driver has suffered damage a cause of which was the failure of the learner driver to act with reasonable care." 1. They then considered whether there was a duty of care of "a reasonable learner driver". At [54] they pointed out: "Knowledge of inexperience can thus provide no sufficient foundation for applying different standards of care in deciding whether a learner driver is liable to one passenger rather than another, or in deciding whether that learner driver is liable to a person outside the car rather than one who was seated in the car, in the adjoining seat. The other passenger will ordinarily know that the driver is a learner driver; the road user outside the car can see the L-plates. Yet it is not disputed that the learner driver owes each of those persons a standard of care determined by reference to the reasonable driver." Commencing at [59] they considered whether different standards of care were owed if the front seat passenger were categorised as an "instructor" or "supervisor". This was not a discrimen between a professional driver instructor and, for example, a family volunteer such as a parent but a discussion based on different statutory descriptions. 1. Their Honours then held that there was no different standard of care of the driver of a motor vehicle: "69. The common law recognises many circumstances in which the standard of care expected of a person takes account of some matter that warrants identifying a class of persons or activities as required to exercise a standard of care different from, or more particular than, that of some wholly general and "objective community ideal". Chief among those circumstances is the profession of particular skill. A higher standard of care is applied in those cases. That standard may be described by reference to those who pursue a certain kind of occupation, like that of medical practitioner, or it may be stated, as a higher level of skill, by reference to a more specific class of occupation such as that of the specialist medical practitioner. At the other end of the spectrum, the standard of care expected of children is attenuated. 70. But what distinguishes the principle established in Cook v Cook from cases of the kind just mentioned is that Cook v Cook requires the application of a different standard of care to the one defendant in respect of the one incident yielding the same kind of damage to two different persons, according to whether the plaintiff was supervising the defendant's driving or not. In all other cases in which a different level of care is demanded, the relevant standard of care is applied uniformly. No distinction is drawn according to whether the plaintiff was in a position to supervise, even instruct, the defendant although, of course, if the plaintiff was in that position, a failure to supervise or instruct may be of great importance in deciding whether the plaintiff was contributorily negligent. 71. There is no warrant for the distinction that was drawn in Cook v Cook. Cook v Cook should no longer be followed in this respect. 72. The principle adopted in Cook v Cook departed from fundamental principle and achieved no useful result. It is necessary, of course, to recognise that it is a decision that has stood for more than 20 years. Although it seems that there are few if any decided cases in which it has been applied to deny liability, it must be assumed that its application may have affected the terms on which cases have been compromised and the apportionments of responsibility that have been made by courts and parties. Yet despite these considerations, it is better that the departure from principle is now recognised. The plaintiff who was supervising the learner driver, the plaintiff who was another passenger in the vehicle, the plaintiff who was another road user are all entitled to expect that the learner driver will take reasonable care in operating the vehicle. The care that the learner should take is that of the reasonable driver." 1. Commencing at [74], the joint judgment considered The Insurance Commissioner v Joyce. They went on to say: "77. The view expressed by Dixon J, that it was more satisfactory to ascertain the rights of the parties by determining the measure of the defendant's duty according to the circumstances in which the defendant accepted the plaintiff as a passenger than "by opposing to a fixed measure of duty exculpatory considerations, such as the voluntary assumption of risk or contributory negligence", was founded on the premise that the standard of care to be applied depends upon the particular "relations, juxtapositions, situations or conduct or activities" out of which the duty of care arises. More particularly, two aspects of the relations established by a passenger voluntarily accepting carriage by a drunken driver were given primacy: the notion that "if [the injured person] knows of the danger and runs the risk he has no cause of action" and that, as Latham CJ said in Joyce: "In the case of the drunken driver, all standards of care are ignored. The drunken driver cannot even be expected to act sensibly. The other person simply 'chances it.'" It was the combination of those two notions that resulted in the denial of liability, no matter whether the case was analysed as one of no breach of duty, voluntary assumption of risk, or contributory negligence. 78. The introduction of statutory provisions for apportionment of liability on account of contributory negligence would now effectively preclude complete denial of liability in a case like Joyce, if the other two forms of analysis adopted in that case (no breach, and voluntary assumption of risk) were not adopted. It is necessary, therefore, to focus upon those other two forms of analysis." The last paragraph just quoted is, in my view, the key to the issue currently before me. 1. Commencing at [79], their Honours considered the question of voluntary assumption of risk, which is not relevant now because of MACA s140. On the question of whether a duty of care was owed, the judgment continues: "82. The conclusion that a defendant owed the plaintiff no duty of care is open in a case like Joyce if, as Latham CJ said, "[i]n the case of the drunken driver, all standards of care are ignored [because the] drunken driver cannot even be expected to act sensibly" (emphasis added). And as indicated earlier in these reasons, it is that same idea which would underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver. 83. But the analysis that has been made also reveals that a plaintiff's knowledge of the deficiencies of the defendant does not so readily lead to a conclusion of the kind reached in Cook v Cook: that the defendant does owe the plaintiff a duty of care, but that the standard of care to be met is less than the standard which otherwise would be expected. 84. Reference was made in Cook v Cook to the example cited by Latham CJ in Joyce of the person who gives a watch to a blacksmith for repair: "If a person deliberately agrees to allow a blacksmith to mend his watch, it may well be said that he agrees to accept a low standard of skill. But even in such a case, the blacksmith is bound to act sensibly, though he is not subject to the responsibilities of a skilled watchmaker." The accuracy of the conclusion expressed may readily be accepted, if only because acting sensibly, the blacksmith should, perhaps, refuse to undertake the task. But the proposition is not one that provides a safe basis for extrapolation into a general proposition that the standard of care to be met varies according to the state of the plaintiff's knowledge of the defendant's ability to reach that standard. A plaintiff's knowledge and the standard of care 85. Actual knowledge of a defendant's inability to reach a standard of reasonable care may be a necessary, but it would not be a sufficient, step towards a conclusion about voluntary assumption of risk. And both what a plaintiff actually knows, and what that plaintiff ought reasonably to have known, will be relevant to an inquiry about contributory negligence. The answers to both questions (about what a plaintiff knew and what a plaintiff ought to have known) will bear upon whether the plaintiff failed to take reasonable care for his or her own safety." 1. Gleeson CJ agreed with the reasons given and the orders proposed in the joint judgment. His Honour also provided his own reasons to support the views expounded in the joint judgment. His Honour commenced his reasons thus: "2. The relationship that was said in Cook v Cook to be special, and to require a departure from the normal objective standard of care, was that "between a driver who is known to be quite unskilled and inexperienced and a passenger who has voluntarily undertaken to supervise his or her driving efforts." The injured passengers in Cook v Cook, Nettleship v Weston, and the present case, were not professional or qualified teachers. The occasion for the supervision was purely social. In practice, many, perhaps most, supervisors of learner drivers are relatives or friends acting in a voluntary capacity. In this case, as in Cook v Cook, the driver needed the supervising passenger's permission to drive the car. That permission was given subject to a stipulation that the driver should not exceed a certain speed. That is not uncommon. The ordinary traffic laws impose speed limits on inexperienced drivers. It is a basic precaution often adopted in informal situations of instruction or supervision. 3. There may be any number of ways in which personal attributes, permanent or temporary, may affect a driver's capacity to exercise care for the safety of others. Knowledge of such attributes may be relevant to contributory negligence, or to a defence of voluntary assumption of risk, but the fact of such knowledge is not normally treated as a defining aspect of the circumstances, so as to modify the care that is required as a legal obligation." At [7] he said: "It was not suggested in this case (or in Cook v Cook or in Nettleship v Weston) that the negligence of the driver consisted in undertaking the driving in the first place. There may be circumstances in which a person who takes control of a motor car is so lacking in competence that the act of taking control is itself negligent. Where that would leave an instructor, or supervisor, or other passenger, who directed or permitted the act is not the present problem. According to the circumstances, it could mean that there is no duty of care, or voluntary assumption of risk, or a high degree of contributory negligence, or an absence of causation." The case then before the High Court was not alleged to be such a case. His Honour went on to say: "9. Inexperience is one of many attributes that may affect a driver's ability to avoid danger. As was pointed out by counsel for the appellant, a visitor from overseas, who had never previously driven on the left side of the road, or across a desert, may be described as inexperienced if placed in the same situation as the driver in this case. Many other factors may cause impairment of driving skills, in varying degrees. The question is whether, as a matter of legal principle, there is sufficient reason to single out inexperience, or to treat the relationship between an inexperienced driver and a supervisor as modifying the ordinary, objectively expressed, standard of care. 10. To describe a case as special, or exceptional, implies existence of a principle by which it can be recognised, and distinguished from the ordinary. The plurality reasons in Cook v Cook accepted that, as a general rule, the standard of care owed by a driver to someone who might foreseeably be injured by lack of care is objective and impersonal, and is not modified by the personal attributes of the driver, which might include age, skill, alertness, physical or mental health, sobriety or even aspects of temperament, some of which, in the case of the one driver, may alter, perhaps over a short time. This is so because the care that is reasonably required of the driver of a car is a product of the harm that can result from failure to exercise care, and because the alternative would be an infinitely variable standard, responding to the particular combination of attributes possessed by a driver at any given time. It was concluded in Cook v Cook that, because the absence of skill, or experience, was the reason for the instruction or supervision that was undertaken, it was irrational to impose a standard of care owed by the driver to the instructor or supervisor that was not modified to take account of the lack of skill or experience. That, with respect, is not at all obvious. The factors described as special may be significant, in a given case, for issues such as the existence of a duty of care, contributory negligence, voluntary assumption of risk, or causation. Given, however, that it is accepted that the driver owes a duty to the supervisor to take reasonable care for the supervisor's safety; given the wide variability in degrees of inexperience; and given the interaction of experience, or lack of it, with other personal attributes that bear upon safe driving, it is not irrational to impose an objective standard of care rather than to attempt to adjust the standard of care to the level of experience of an individual driver. 11. An alternative view, preferred by Brennan J in Cook v Cook, is that knowledge that the driver was inexperienced (in this case, a knowledge shared by all the passengers) is the key factor, with the result that the standard of care is "the standard of an inexperienced driver of ordinary prudence." This approach, however, also raises the difficulty mentioned above. In Nettleship v Weston, Megaw LJ pointed to the problem of complex and elusive factors that might affect a particular person's ability to take care. I see no answer to the problem. It may be demonstrated by reference to The Insurance Commissioner v Joyce. Dixon J, in successive sentences, referred to a "drunken driver" and a "driver affected by drink". It is now generally accepted that even a modest amount of alcohol may cause impairment of a driver's capacity, and the extent of the impairment may vary with other attributes of the driver, perhaps including experience. 12. The difficulty of applying a standard of an inexperienced driver of ordinary prudence is shown by the decisions at trial and in the Court of Appeal in this case. Four judges, bound by authority to apply that standard, and to work out the extent to which the accident was the result of inexperience, as compared with some other deficiency, produced four different results." His Honour went on to consider the reasoning of Lord Denning MR in Nettleship v Weston (supra). His Honour then pointed out that the respondents in the High Court appeared to accept that the standard of care owed by an inexperienced driver to other people on or near the highway, and to passengers in the car, except the supervising passenger, is objective. The question of principle to be determined by the High Court was whether the position was otherwise for the supervising passenger. He went on to say at [23]: "The question in the present case is one of common law principle. Is the standard of care owed by an inexperienced driver to a supervising passenger the same objective standard as that owed to third parties generally? That is a matter that could be regulated by statute [29]. There is no legislation relevant to these proceedings that touches the point." 1. The accident in question in the proceedings before the High Court occurred in the Northern Territory. Although the litigation was conducted in New South Wales, the lex loci delicti applied: v. [64], [117]. Footnote [29] in the passage I have just quoted is this: "See, for example, the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW), which inserts s 141 in the Motor Accidents Compensation Act 1999 (NSW) with effect from 1 October 2008." Section 141 of MACA is this: "141 Standard of care not affected by knowledge of driver's skill and experience (1) For the purposes of proceedings for damages payable in relation to a motor accident, the standard of care required of the driver of a motor vehicle who owes another person a duty of care is not diminished or otherwise affected by any actual or imputed knowledge of the other person as to the skill or experience of the driver as the driver of a motor vehicle. (2) This section does not affect any determination of whether a person who has suffered harm has been contributorily negligent in failing to take precautions against risk of harm, or any determination as to voluntary assumption of risk by such a person." Returning to the facts in The Insurance Commissioner v Joyce, if Kettle owed any duty of care to Joyce, it was the standard duty of care of the objective normal/ordinary driver. Whilst the section does not mandate that every driver of any motor vehicle owes the standard duty of care to all others on or near the highway, it does direct that any actual or imputed knowledge of the defendant driver's skill or experience is not to be taken to diminish the standard of care which he owes and points in the direction that such actual or imputed knowledge be weighed as contributory negligence. 1. Kirby J agreed with the conclusions of Gummow, Hayne and Kiefel JJ and with the orders their proposed. His Honour commenced his reasoning with this observation: "106. I agree with much that is written in the joint reasons. However, important to my conclusion concerning the duty of care owed by the driver to the appellant is the fact that such liability, although arising under the common law, falls to be determined in the context of statutory prescriptions, enacted in substantially common form throughout Australia, providing for a compulsory scheme of third party insurance for the liability of all drivers (and owners) of motor vehicles operating on public roads throughout the nation. Such insurance affords indemnity to drivers and owners against the risk of liability for injury to third parties - whether other passengers in the motor vehicle, drivers or passengers in other motor vehicles or pedestrians - injured on a public road as a result of negligent driving." This reasoning was not supported by any of his brethren. I should point out that his Honour relied to a large extent on what fell from Megaw LJ in Nettleship v Weston (supra). 1. Heydon J did not think it necessary to consider the correctness of Cook v Cook, but agreed with his brethren that the findings of contributory negligence made by Studdert J should be restored. Crennan J agreed with Gleeson CJ and Gummow, Hayne and Kiefel JJ. Thus five of the seven Justices of the High Court agreed with the Joint Judgment. Paragraph [78] of the joint judgment, in my view indicates that if the facts in The Insurance Commissioner v Joyce were res integra in this State, Joyce would obtain a finding of negligence in his favour, with a deduction for his contributory negligence. 2. Despite what was said in the joint judgment about the proceedings below, quoted in [158] above, a defence of "no duty of care" was obviously pleaded and maintained in the Court of Appeal. About that, Basten JA said: "No Duty of Care 65. The defendant also sought to escape liability on the basis that, despite the relationship between passenger and driver, there was no duty of care in the circumstances of the case. Again, that approach would appear to be inconsistent with the approach adopted in Cook v Cook, discussed below. The basis for the argument was said to be the decision of this Court in Cusack v Stayt [2000] NSWCA 242, (2000) 31 MVR 517. However, the facts of that case bear no relationship to the present. They were described by Heydon JA in the following terms (at [19] and [20]): "At the time when the plaintiff was struck by the defendant's car the plaintiff had been guilty of assaulting the defendant, battering her and inflicting malicious damage to property in which she was sitting. There was no reason to suppose that he would not inflict further violence on her. The defendant was intoxicated and had used marijuana, as the plaintiff well knew … . The plaintiff thus knew before the defendant reached her vehicle that she was not fit to drive it, and that if she did there was a risk to her safety and the safety of others … ." 66. In those circumstances, his Honour described the relevant principles in the following terms at [25]: "None of the general principles commonly used in identifying the existence of a duty of care in relatively normal circumstances apply here. There was no special relationship between the parties or between the defendant and anyone else giving rise to any assumption of responsibility by the defendant for the plaintiff's safety. Their quarrelling had gone well beyond any stage when there was any consensual understanding between them about anything. There was no peculiar vulnerability in the plaintiff, rather it was the defendant who was vulnerable to the plaintiff's campaign of threats and violence. There was no actual reliance, and there could have been no reasonable reliance, by the plaintiff on the defendant to avoid injuring him. Indeed, he invited her to do so. While a sober driver in the defendant's position who had not been upset by the plaintiff might be said to be in a position of control, the defendant in her intoxicated and terrified condition was to the plaintiff's knowledge not in a position of control." Standard of care and breach 67. Once it is accepted, as it should be, that the relationship between the plaintiff and the defendant did give rise to a duty of care, the next question is whether the defendant's conduct contravened the standard of care expected of him in the circumstances." 1. In Zanner v Zanner [2010] NSWCA 343, the defendant driver was 11 years and 2 months old at the time he ran over the plaintiff, his mother. The trial was conducted by Armitage DCJ, who found a verdict for the plaintiff for $700,000, which he reduced by 50% for contributory negligence. The Court of Appeal increased the contributory negligence to 80%. The primary judgment was given by Tobias JA with whom Allsop P and Young JA agreed. The facts are conveniently summarised in [18]: "18. The primary judge made a number of undisputed findings of fact that are conveniently summarised in the appellants' written submissions as follows: (a) At about 4pm on 18 August 2006 the Respondent was injured when a vehicle driven by her son, the First Appellant, collided with her, propelling her into a rockery area so that the vehicle went on top of her; (b) As a result, the Respondent suffered crush injuries, and burns from the exhaust pipe of the vehicle; (c) The vehicle collided with the Respondent because the First Appellant's foot slipped from the brake to the accelerator as he attempted to drive the vehicle into the family carport; (d) The First Appellant [who was 11 years 2 months old at the time] was driving the vehicle with the Respondent's permission; (e) The First Appellant and the Respondent intended that the distance to be driven by the First Appellant was 3 to 4 metres only; (f) The Respondent was standing a distance of 2 metres in front of the vehicle, directing the First Appellant into the carport; (g) The First Appellant had some, very limited, prior experience in the driving of a motor vehicle; that prior experience was limited to the 5 or 6 occasions when he drove his father's car into and out of the family carport; (h) On some of these occasions, the Respondent was present in the passenger's seat of the father's vehicle; (i) The First Appellant had never driven the Respondent's vehicle before the accident on 18 August 2006; (j) The First Appellant had never ridden a motorcycle, or driven any other motor vehicle, prior to the accident on 18 August 2006, apart from his father's vehicle [Red 47M-48J]." Inter alia, the defendants, the plaintiff's son and her husband who owned the motor vehicle, denied that the driver owed the plaintiff any duty of care. 1. At [38], Basten JA pointed out that there was no obligation upon the driver to be licensed to drive on private property. On the issue of whether the driver owed a duty of care to the plaintiff, his Honour said this: "44. In reliance upon the passage from the judgment of Gleeson CJ in Imbree at [7] which I have recorded at [24] above, it was submitted that it was open to a court to find that, in rare circumstances, a driver of a motor vehicle does not owe a duty of care to a person injured as a result of his or her driving. It was submitted that the present was such a case given that first, the respondent gave control of her motor vehicle to an 11 year old child and, second, she did not remain within the vehicle to strictly supervise his conduct and, if necessary, to retake control of the vehicle. 45 The appellants further submitted that the first appellant was so obviously lacking in competence and experience that his act in taking control of the vehicle was itself plainly negligent. Accordingly the respondent cannot have the benefit of a duty of care, as it was she who permitted her son to take control of the vehicle. The case therefore fell within the circumstances contemplated by Gleeson CJ in Imbree as well as by the plurality who, when referring to Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39 said (at [82] omitting footnote references): "The conclusion that a defendant owed the plaintiff no duty of care is open in a case like Joyce if, as Latham CJ said '[i]n the case of the drunken driver, all standards of care are ignored [because the] drunken driver cannot even be expected to act sensibly' (emphasis added). And as indicated earlier in these reasons, it is that same idea which would underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver." (Emphasis in original) 46. It was thus submitted that the respondent had no reasonable expectation that the first appellant would be capable of driving the vehicle safely or sensibly. The error he made in permitting his foot to slip from the brake to the accelerator was precisely the type of error that might have been expected by the respondent having regard to her son's age and lack of experience. 47. In my opinion the appellants' submission that the first appellant owed no duty of care at all to the respondent should be rejected. 48 In light of the findings of the primary judge, the present case is distinguishable from that of Joyce referred to by the plurality in Imbree at [82] to which I have referred above. Furthermore, the passage from the judgment of the Chief Justice in Imbree on which the appellants relied lacks a factual foundation in the present case given his Honour's finding, which is not challenged, that the first appellant, having successfully and without mishap driven his father's motor vehicle into and out of the carport on five or six occasions, was competent to perform the same exercise with respect to his mother's vehicle. After all, he was only required to drive the vehicle three or four metres from the apron outside the carport into the carport itself. The vehicle had automatic transmission so that once it was put into "drive" it would inch forward slowly until the brake was applied. No doubt this is the manoeuvre the first appellant had successfully performed on his father's vehicle five or six times to his mother's knowledge. There was no reason to believe that he would be unable to perform the same manoeuvre on the respondent's vehicle with the same outcome. 49 In the foregoing circumstances in my opinion the primary judge was correct in finding that the first appellant owed the respondent a duty of care. Although it is true that the possibility of the first appellant's foot slipping from the brake to the accelerator was a foreseeable risk, it was not inevitable that that risk would eventuate. Imbree supports the proposition that a driver of a motor vehicle of any age (and certainly an 11 year old boy) owes a duty of care to, in this case, someone in the position of the respondent. The real issue is the scope or content of their duty to which I now turn." 1. The final litigation to which the plaintiff referred me was that between Mitchell Green and others, and the Nominal Defendant [2012] NSWDC 37 and on appeal by the Nominal Defendant [2013] NSWCA 219. However, it is first necessary to consider another line of authority concerning personal injury claims arising out of what are alleged to be joint criminal enterprises. 2. The first case I ought mention is Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397. The facts were summarised thus by Windeyer J: "In the evening of [3 April 1965] the plaintiff and the defendant and two other youths named Henderson and Windmill, all about sixteen years of age, went together to a hotel in Ballarat where they drank beer. At some time later in the evening, after visiting a fish shop and a bowling alley, they went to a public lavatory behind the old town hall. There they came upon a man named Hicks, apparently not previously known to them. They jostled and punched him and the plaintiff went through his pockets and robbed him of three one pound notes and his car keys. They forced him to shew them where his car was parked in the street; and they then made off in it, leaving him in the street. They drove away from Ballarat along the Ross Creek road. Where they were making for does not appear from the material before us. The plaintiff was driving when they started. After they had gone about four miles Windmill took a turn for a short time. Then the defendant took the wheel and drove on at about eighty or ninety miles an hour. When approaching the Glenelg Highway near Smythesdale, the plaintiff is said to have warned the defendant to slow down. He did not do so. The car ran off the road and hit a tree. The four youths were all knocked unconscious. The plaintiff was badly hurt. The defendant suffered severe brain damage. He is in a mental institution. He was unable to give evidence at the hearing. He defended the case by his guardian ad litem, who now brings this appeal as his next friend." (at p405) At first instance Starke J gave judgment for the plaintiff for $11,379.71: [1969] VR 267. The headnote in the Commonwealth Law Reports pithily sums up the decision: "Held, that the respondent could not in the circumstances recover damages from the appellant. Per Barwick C.J., Windeyer and Owen JJ: If two persons participate in the commission of a crime, each takes the risk of the negligence of the other in the actual performance of the criminal act. Per Kitto J: Persons who join in committing an illegal act which they know to be unlawful or which they must be presumed to know to be unlawful have no legal right inter se by reason of their respective participations in that act." 1. The next case in this line of authority is Gala v Preston [1991] HCA 18; (1991) 172 CLR 243. Mason CJ, Deane, Gaudron and McHugh JJ delivered a joint judgment. The facts of the case are cited early in their judgment: "The Facts Shortly before midnight on 14 August 1984 the respondent (the plaintiff at the trial), then aged nineteen, suffered injuries when the motor vehicle in which he was a passenger veered off the road and struck a tree. The vehicle was being driven by the first appellant (the first defendant at the trial). At the time of the accident the respondent, along with the first appellant and two other youths, Steven Burn and Ray Simms, who were passengers in the vehicle, was engaged in the unlawful use of the motor vehicle contrary to s. 408A of the Code. The primary judge found that at about noon on 14 August 1984 the four youths went to the Customs House Hotel, Maryborough, where they began to play pool and consume liquor. They had lunch at about 2.00 p.m. The respondent consumed approximately forty scotches during the course of the afternoon and evening. His companions drank beer and consumed an equivalent amount of alcohol to that consumed by the respondent. The primary judge found that the probabilities were that the respondent and the first appellant, at the time of the accident, had a blood alcohol concentration in excess of 0.2 per cent. At some stage during the evening, the party formed the intention to "go up north" and to steal a motor vehicle for that purpose. The respondent's evidence was that it had been his intention that he and Simms would visit the respondent's brother and some friends in Gladstone, whilst the first appellant and Burn would continue north to Rockhampton where they planned to commit some breaking and entering offences. When the suggestion was put to him during the course of cross-examination, the respondent said that he assumed that the journey north was to be something of a "joy ride". Between 7.30 p.m. and 8.00 p.m., the four men discovered a vehicle parked in town with the keys in the ignition. After filling the vehicle with fuel at Maryborough, the respondent drove the vehicle some distance north of Gin Gin, whereupon the first appellant took over the driving. The respondent climbed into the rear left-hand seat of the vehicle and, after approximately half an hour, fell asleep. Shortly before 11.50 p.m., just south of Gladstone, the vehicle left the Bruce Highway and struck a tree. Simms was killed in the accident. The respondent suffered a number of injuries, the most significant being the dislocation of his right hip. The respondent and the first appellant both pleaded guilty to and were convicted of unlawfully using a motor vehicle contrary to s. 408A of the Code and were each placed on twelve months probation and ordered to pay restitution to the owner of the vehicle. The respondent was further ordered to perform unpaid community service." (at p244-245) The plurality held that the passenger could not in the circumstances recover damages from the driver on the ground that the parties were not in a relationship of proximity (a concept since abandoned) to each other so that the driver owed a relevant duty of care to the passenger. Brennan J, to the same effect, held that to admit a duty of care would destroy the normative effect of s408A of Criminal Code (Qld). Dawson J was of the view that to permit the criminal enterprise to be used as the foundation for erecting a standard of care would be to condone a breach of the criminal law. Toohey J held that the driver owed no duty of care to the passenger because his injury arose from a serious criminal act in which both had participated. 1. The last case in this line of authority which I need cite is Miller v Miller [2011] HCA 9; (2011) 242 CLR 446. The plurality, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, delivered a joint judgment. The facts are stated at the commencement of the judgment: "1. Early in the morning of 17 May 1998, the appellant (Danelle Miller – "Danelle"), then aged 16 years, wanted to go from Northbridge, a Perth suburb, to her home in Maddington, another Perth suburb. She had been drinking, had tried unsuccessfully to enter a nightclub and was wandering in the streets with her sister and cousins. The last train had left. She did not have the money to pay for a taxi. So she decided to steal a car. 2. Having started a car in the car park near the nightclub, Danelle asked her older sister (Narelle) to drive her and her younger cousin (Hayley) home. Danelle knew that Narelle had been drinking and did not hold a driver's licence. 3. The respondent (Maurin Miller – "Maurin") was at a cab rank when he saw the car leaving the car park where it had been standing. Maurin was a cousin of Danelle's mother. He was aged 27 years. He said to Narelle: "I'm your uncle let me drive." Narelle moved out of the driver's seat and he took the wheel. Some of Maurin's friends who were waiting at the cab rank also got into the car. Nine passengers jammed themselves into the car with Maurin driving, and off they set. For a time, Maurin drove sensibly. But then he began to speed and to drive through red lights. Danelle asked him to slow down, and then she asked him to stop and let her and Narelle out. But Maurin drove on, saying that they were "all right", and should come with him to his house. 3. Near Maddington, the suburb where Danelle lived, Maurin slowed the car down and Danelle again asked to be let out. Maurin laughed off her concerns. Shortly afterwards, having sped up, he lost control of the car. The car struck a pole. One passenger was killed. Danelle was very seriously injured and is now a tetraplegic. She sued Maurin in the District Court of Western Australia claiming damages for negligence." A trial was conducted in the District Court of Western Australia. The only live issue in the proceedings was whether Maurin owed Danelle a duty of care. Schoombee DCJ held that he did. On appeal the Court of Appeal (McLure, Buss and Newnes JJA) held that he did not. The plurality in the High Court restored the finding of the trial judge. 1. The reasons of the plurality are long but comprehensive, clearly argued and nicely expressed. No selection of quotes that I may make can adequately convey their Honours' reasoning process, but I must be forgiven for making an attempt. In the section headed "Preliminary considerations", their Honours said: "15. These reasons will show that the central policy consideration at stake is the coherence of the law. The importance of that consideration has been remarked on in decisions of this Court. Its importance in this particular context was emphasised by the Supreme Court of Canada. It is a consideration that is important at two levels. First, the principles applied in relation to the tort of negligence must be congruent with those applied in other areas of the civil law (most notably contract and trusts). 16. Second, and more fundamentally, the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant's negligence is whether there is some relevant intersection between the law that made the plaintiff's conduct unlawful and the legal principles that determine whether the plaintiff should have a cause of action for negligence against the defendant. Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff's conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct? Other questions, such as whether denial of liability will deter wrongdoers or advantage some at the expense of others, are neither helpful nor relevant. And likewise, resort to notions of moral outrage or judicial indignation serves only to mask the proper identification of what is said to produce the response and why the response could be warranted." 1. Their Honours considered a large number of decided cases. When considering Smith v Jenkins (supra), they said: "46. To the extent to which the Court's reasons depended upon assigning a single characterisation to the relationship of the parties, subsequent considerations of an approach of that kind to constitutional interpretation show that the reasoning is flawed. In deciding a question of connection between a statute and a head of power, the fact that the law fairly answers the description of being with respect to two subject-matters, of which one is within power, is sufficient to answer the relevant question. But in deciding whether one person owes a duty of care to another, it is necessary to consider the whole of the relationship between the parties. As was said in Graham Barclay Oysters Pty Ltd v Ryan: "[t]he totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised." Thus where the relationship between parties engaged in a joint illegal enterprise may be characterised in more than one way, there is no sound basis for choosing one characterisation to the exclusion of the other or others. 47. One aspect of the relationship between the parties in the present case was that they were joint participants in an illegal act. Another aspect of their relationship was that the plaintiff was a passenger in a motor vehicle being driven by the defendant. The relationship between the parties could therefore be described as a relationship of passenger and driver. But, just as it is wrong to describe the relationship between them only as that of participants in a joint criminal enterprise, it is wrong to describe their relationship only as that of passenger and driver. Both characterisations of the relationship are accurate, but neither is complete. Both characterisations must be applied to describe the relevant circumstances fully. 48. The importance of recognising that the relationship between the parties has more than one aspect is revealed by the reasons in Smith v Jenkins. Common to the reasoning of all members of the Court was the emphasis given to the facts that the negligence of which the plaintiff complained was the defendant's negligent execution of the relevant illegal act (using the motor vehicle) and that the plaintiff was committing the same crime as the defendant. This description of events and relationships did not stop short at observing that one was a passenger in a car driven by the other. It took account of the fact that the driving was a crime in which the passenger was complicit. 49. The significance given to the facts just described proceeded from the uncontroversial premise that it is necessary to determine whether the defendant owed a duty to a class of persons (including the plaintiff) to take reasonable care not to cause personal injury to those persons. Plainly, the driver of a motor car that the driver has taken and is using illegally owes other road users a duty to take reasonable care not to cause personal injury. But the question in Smith v Jenkins was more complex. The relevant question was as it is here: does the class of persons to whom the driver owes that duty of care include the driver's confederate in the crime of illegally using the vehicle? The emphasis given in the reasons for judgment to the negligence alleged being in the execution of the relevant illegal act for which both plaintiff and defendant were criminally responsible can be seen as founding the negative answer to the question about duty of care. For Windeyer J, that answer followed not from public policy precluding the assertion of a right of action but rather from the conclusion that the law will not regulate, as between two wrongdoers, how each performs the tasks that fall to him or her in effecting their wrong. For other members of the Court, public policy precluded the assertion of a right of action." 1. When considering Gala v Preston (supra), their Honours said: "59. The demise of proximity as a useful informing principle in this area is now complete. The decision in Cook v Cook is no longer good law. The combination of these considerations may suggest that what was held in Gala v Preston should be set aside and the law should be developed as though the slate were clean. That is not right. 60. First, it is important to remember why proximity has been discarded from the Australian judicial lexicon. The expression is one which has been found not to be useful. It is not useful because it neither states, nor points to, any relevant principle that assists in the resolution of disputed questions about the existence of a duty of care, beyond indicating that something more than foreseeability of damage is necessary. Instead, "proximity" was used as a statement of conclusion. And, because it was used as a statement of conclusion, it is important to look to the reasoning that lay behind the conclusion, rather than the bare fact that the conclusion was expressed by using the terms "proximity" or "relationship of proximity". 61. In Gala v Preston, the plurality concluded that the parties were not in a "relationship of proximity" because "[i]n the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care". This was said to follow from the fact that "each of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest." Accordingly, the plurality decided that "[t]o conclude that he [the defendant-driver] should have observed the ordinary standard of care to be expected of a competent driver would be to disregard the actual relationship between the parties" (emphasis added) and that "[t]o seek to define a more limited duty of care by reference to the exigencies of the particular case would involve a weighing and adjusting of the conflicting demands of the joint criminal activity and the safety of the participants in which it would be neither appropriate nor feasible for the courts to engage." The validity of this reasoning does not depend upon the use of the word "proximity" as a description of its outcome. 62. Likewise the reference to and reliance on Cook v Cook does not warrant ignoring all that was said or done in Gala v Preston. The references made by the plurality to Cook v Cook were made in aid of the proposition that there are cases in which the relationship between parties is not sufficiently described as that of driver and passenger. 63. This Court's overruling of Cook v Cook in Imbree v McNeilly focused upon the treatment in Cook v Cook of questions of standard of care rather than duty of care. As the plurality pointed out in Imbree, in so far as the reasoning of the plurality in Cook v Cook depended upon the application of notions of proximity, it is reasoning that "does not accord with subsequent decisions of this Court denying the utility of that concept as a determinant of duty". But, as the plurality in Imbree also pointed out, that observation did not conclude the issues that arose in Imbree. The immediate question in Imbree was about the content of a duty of care, not whether any duty was owed. Further, the idea that, in determining the content of a duty of care, primacy must be given to identifying the relationship between the parties is a principle of long standing in the law of Australia, stemming as it does from the dissenting reasons of Dixon J in The Insurance Commissioner v Joyce. 64. Joyce concerned a gratuitous passenger accepting carriage in a vehicle driven by a person known by the passenger to be drunk. In Joyce, Dixon J offered three possible bases for concluding that the passenger's action should fail: no breach of duty, voluntary assumption of risk and contributory negligence (then a complete defence). Of them, Dixon J preferred the first form of analysis. As the plurality in Imbree said, the conclusion that a defendant owed the plaintiff no duty of care is open in a case like Joyce if the drunken driver cannot be expected to act sensibly (an idea that would also underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver). And as Windeyer J said in Smith v Jenkins, a conclusion that one illegal user owes no duty of care to a confederate "can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit injuria, or simply on the refusal of the courts to aid wrongdoers". But as is implicit in what was said in all three cases (Joyce, Smith v Jenkins and Imbree) the question whether A owes B a duty to take reasonable care is not to be answered by reference only to whether A was the driver of and B a passenger in a motor vehicle. A duty of care arises from the "relations, juxtapositions, situations or conduct or activities" in question. All aspects of the relations between the parties must be considered." (my emphases) 1. Commencing at [70] their Honours provided a very useful synopsis: "70. What has been said about the previous decisions in this Court shows that some propositions can be made. First, the fact that a plaintiff was acting illegally when injured as a result of the defendant's negligence is not determinative of whether a duty of care is owed. Second, the fact that plaintiff and defendant were both acting illegally when the plaintiff suffered injuries of which the defendant's negligence was a cause and which would not have been suffered but for the plaintiff's participation in the illegal act is not determinative. Third, there are cases where the parties' joint participation in illegal conduct should preclude a plaintiff recovering damages for negligence from the defendant. Fourth, different bases have been said to found the denial of recovery in some, but not all, cases of joint illegal enterprise: no duty of care should be found to exist; a standard of care cannot or should not be fixed; the plaintiff assumed the risk of negligence. Fifth, the different bases for denial of liability all rest on a policy judgment. That policy judgment has sometimes been expressed in terms that the courts cannot regulate the activities of wrongdoers and sometimes in terms that the courts should not do so. 71. Twice this Court has held (unanimously in each case) that one illegal user of a motor vehicle cannot recover damages for injuries sustained as a result of the negligent driving of another illegal user of the vehicle. Central to the conclusion in each of those cases was the observation that the negligence alleged was negligence by one criminal in carrying out his part in the unlawful undertaking in which both plaintiff and defendant were engaged. 72. The proposition that courts cannot regulate the activities of wrongdoers has already been rejected. In a case of illegal use of a motor vehicle there is a readily identified standard of care that could be engaged: the standard of care which road users other than the driver's criminal confederates are entitled to expect the driver to observe. 73. Why should courts not regulate the activities of the wrongdoers by requiring of the driver that he or she exercise reasonable care for the safety of other road users and any passenger in the vehicle, whether or not the passenger is complicit in the crime? As explained at the outset of these reasons, the answer must lie in whether it is incongruous for the law to provide that the driver should not be using the vehicle at all and yet say that, if the driver and another jointly undertake the crime of using a vehicle illegally, the driver owes the confederate a duty to use it carefully when neither should be using it at all. 74. Incongruity (whether described by that word or as "contrariety" or "lack of coherence") will not be demonstrated or denied by bare assertion of the answer. More analysis is required. If a statute has been contravened, careful attention must be paid to the purposes of that statute. It will be by reference to the relevant statute, and identification of its purposes, that any incongruity, contrariety or lack of coherence denying the existence of a duty of care will be found. That is the path that was taken in Henwood. It is the same as the path that has been taken in relation to illegality in contract and trusts. The same path should be taken in cases where the plaintiff sues the defendant for damages for the negligent infliction of injury suffered in the course of, or as a result of, the pursuit of a joint illegal enterprise." 1. The plurality then turned to consider in detail the relevant provisions of the Criminal Code (WA), the provisions concerning the crime it was alleged Danelle was committing at the time of the accident causing her injuries and those provisions relating to what is called in their State a joint criminal enterprise. It was also necessary to consider the legislative history of the first of those provisions, savings provisions and then to consider the purposes of the legislation. They went on to say this: "92. The venture between the parties may be described as a venture to use the vehicle illegally. But, as has already been seen, s 8(1) of the Code provides that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose "an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose", each is deemed to have committed that offence. If two or more persons agree to take and use a vehicle illegally, and one of them drives it unsafely, it will likely be concluded that "a probable consequence of the prosecution of such purpose" is the driving of the vehicle with a "lack of responsibility for the safety of the vehicle", its occupants and other road users, and in a way that departs markedly from a standard of driving with reasonable care. The cases in which those are not probable consequences of two or more persons joining in the taking and illegal use of a vehicle will likely be rare. It is the recognition of that fact that lies beneath the conclusions reached in both Smith v Jenkins and Gala v Preston. The joint criminal venture to which reference was made in those cases was a venture in which reckless or dangerous driving was a probable, but not inevitable, incident of the venture. 93. If, in a particular case, it were to be shown that a probable consequence of commission of an offence of taking or using a vehicle illegally was the commission of other driving offences (including reckless or dangerous driving) those who were complicit in the initial offence would be criminally liable for the subsequent offences as well. More particularly, if, as here, the driver of the illegally used vehicle drove dangerously, and driving in that manner was a probable consequence of the prosecution of the joint illegal purpose, a person complicit in the crime of illegal use would also be complicit in the offence of driving dangerously. And if, as a result of the dangerous driving, the complicit passenger were injured, it would evidently be incongruous to decide that the offender who drove the vehicle owed that passenger a duty to drive with reasonable care. The passenger would have committed the offence of dangerous driving and yet, if the driver owed the passenger a duty to take reasonable care, the passenger (who would be criminally responsible for the driver's dangerous driving) might sue the driver for damages for driving negligently. 94. The incongruity identified stems immediately from the injured passenger's complicity, not only in the illegal use of the vehicle, but also in the driver's commission of the offence of driving dangerously. To conclude that the driver owed the passenger a duty to take reasonable care when driving would not be consistent with the purpose of the statute proscribing dangerous driving. 95. Does the conclusion of incongruity apply in every case of joint illegal use? Does the conclusion depend upon whether, in the particular case, the driver drove recklessly or dangerously and the passenger was complicit in that further offence?" In discussing this last question, their Honours said: "101. The refusal to find a duty of care between those complicit in the offence follows from the more precise identification of the way in which the statutory proscription of illegal use of a vehicle seeks to promote road safety. The offence of illegally taking and using a vehicle is dealt with as it is because of its association with reckless and dangerous driving. The statutory purpose of a law proscribing dangerous or reckless driving is not consistent with one offender owing a co-offender a duty to take reasonable care. And in a case where two or more are complicit in the offence of illegally using a vehicle, the statutory purpose of the law proscribing illegal use (here, s 371A) is not consistent with one offender owing a co-offender a duty to take reasonable care. The inconsistency or incongruity arises regardless of whether reckless or dangerous driving eventuates. It arises from the recognition that the purpose of the statute is to deter and punish using a vehicle in circumstances that often lead to reckless and dangerous driving." 1. Applying these principles to the case before them, the plurality said: "103. As noted at the outset of these reasons, Danelle twice asked to be let out of the car before it ran off the road. She was not. 104. Reference has already been made to the provisions of s 8 of the Code concerning liability for offences committed in prosecution of a common unlawful purpose and to the provisions made by s 8(2) for withdrawal from a joint criminal enterprise. It was not disputed, in this Court, that it was open to Danelle to submit that she had withdrawn from the common purpose of illegally using the vehicle before the accident, and no positive argument was advanced to demonstrate that she had not done so in the manner required by s 8(2) of the Code. The requirement, in s 8(2)(c) of the Code, that an offender, having withdrawn from an enterprise and communicated that fact to his or her confederates, take "all reasonable steps to prevent the commission of the offence" invites attention in this case to what Danelle could reasonably have done to prevent the continued illegal use of the car. Section 8(2)(c) does not require that there have been some steps available to her of the kind specified in that paragraph. And in this case there were none. There were no reasonable steps she could take to prevent the continued illegal use of the vehicle. 105. As Buss JA records, a submission that Danelle had withdrawn from the common purpose of illegally using the vehicle was not made, in terms, in the Court of Appeal, or at trial. It was accepted that this did not prevent Danelle from advancing the argument in the appeal to this Court. 106. Because Danelle had withdrawn from, and was no longer participating in, the crime of illegally using the car when the accident happened, it could no longer be said that that Maurin owed her no duty of care. That he owed her no duty earlier in the journey is not to the point. When he ran off the road, he owed a passenger who was not then complicit in the crime which he was then committing a duty to take reasonable care." 1. Heydon J dissented but only on the basis that there had not been a satisfactory demonstration by the appellant that her requests constituted a withdrawal by her from the joint criminal enterprise and that, thereafter, a duty of care arose. His Honour appears to have been unpersuaded that the appellant had done enough in this litigation to take this point. 2. I now return to the litigation between Mitchell Green and others, and the Nominal Defendant (see [171] above). The judgment of Sidis DCJ [2012] NSWDC 37 is fact-heavy, as are most judgments at first instance. Under the heading "The circumstances of the accident" are ten paragraphs. However, in the Court of Appeal [2013] NSWCA 219 Basten JA (with whom McColl JA and Sackville AJA agreed) took the same number of paragraphs to explain the factual background. I shall take the facts from her Honour's judgment: "1. Between 11.30 pm and midnight on 16 October 2008 eight young persons entered a Toyota Lexcen station wagon with the intention of travelling from Tingha to Inverell, a distance of about 25 kilometres. Shortly after 1 am on 17 October 2008 the car ran off the Old Bundarra Road at a point about two kilometres south of Inverell. It crashed into a power pole before coming to rest against a roadside fence. 2. Three of the passengers in the car were very seriously injured. They claimed for compensation against the Nominal Defendant because the car was not registered at the time of the accident. … 4. Many of the facts concerning the background to the accident were not in issue. The eight occupants of the car all spent the evening at the Tingha Royal Hotel where a pool competition took place. Some participated in the competition. All drank alcohol. The driver of the car, Samuel Campbell (also known as Samuel Golding) and Christopher Naylor smoked some marihuana. 5. Four of the occupants Mr Campbell, Twilia Campbell, James Golding and Mitchell Green travelled from Inverell in the car to Tingha with the express purpose of going to the Hotel for the pool competition. Mr Naylor, Kayleeta Blacklock, Tara Jerrard and Guy Grills met the other four at the Hotel and travelled back towards Inverell in the car with them. 6. Twilia Campbell was the twin sister of Samuel Campbell. James Golding was Mr Campbell's half brother and Mr Green was his cousin. Ms Campbell, Mr Golding and Mr Green were the plaintiffs in the proceedings. 7. Mr David Blacklock drove to Tingha. Mr Samuel Campbell drove back towards Inverell. Mr Naylor sat in the front passenger seat. Ms Campbell sat in the rear passenger seat behind Mr Naylor. Mr Grills sat in the centre of the rear passenger seat with Ms Blacklock seated on his lap. Ms Jerrard sat in the rear passenger seat behind the driver. Mr Golding and Mr Green sat in the rear cargo area of the station wagon, Mr Golding on the driver's side and Mr Green on the passenger's side. 8. Within a few minutes of leaving Tingha, the car was stopped at Hospital Flat Road where Mr Naylor lived with his girlfriend. Estimates of the time spent there varied between five to ten minutes to one hour. Some of the witnesses said that alcohol was drunk there; others said there was no alcohol. The evidence of who, among the group, left the car at Hospital Flat Road was also disparate. Some said only Mr Naylor left the car, some said Mr Naylor and Mr Campbell left the car, some said it was Mr Naylor and Ms Campbell. Some could not remember. 9. The car was stopped a second time after hitting a kangaroo. The impact with the kangaroo broke a front headlight. Mr Campbell left the car to check the damage. He picked up the dead kangaroo and placed it on the roof of the car. Again, there were differing accounts of who, if anyone, also left the car. Ms Blacklock said Ms Campbell left the car at her request because she was intending to get out to go to the toilet but then changed her mind. In a statement (Exhibit 12) dated 25 November 2008 Ms Campbell stated that she got out to examine the car for damage. 10. After a further distance and on coming around a right hand bend in Old Bundarra Road, Mr Campbell lost control of the car. It ran off to the left of the road onto gravel and the grass verge, turned clockwise approximately 90 degrees and slid for a distance that police estimated to be 80 metres. It then hit a power pole and spun 360 degrees before coming to rest against the roadside fence. 11. Mr Campbell said that he lost control when, after cutting the corner, he saw the lights of an oncoming car and swerved to avoid it. Others in the car suggested that the headlights of the oncoming car were on high beam and that the glare of the light coupled with condensation on the windscreen of the car made it difficult for Mr Campbell to see. 12. The speed limit in the area where the accident occurred was 80 kph. There was no precise evidence of the speed at which the car was travelling at the time it left the road. A number of the occupants of the car said they were travelling at speed. An eye-witness, Mr Moran, estimated the speed at 100 kph. Mr McKenzie, another eye-witness, provided a statement (Exhibit 13) to police in which he estimated the speed at 150 kph. Mr McKenzie was not available for cross examination. Neither of these witnesses held any particular expertise that qualified them to calculate the speed of motor vehicles, although Mr Moran was not challenged concerning his assessment of a speed of 100 kph." 1. The defendant alleged that the driver owed no duty of care to each of the three plaintiffs: "13. The defendant's claim that no duty of care was owed focussed upon the extent to which the occupants of the car, all of whom had been drinking alcohol, gave any consideration to Mr Campbell's capacity to drive. In the case of Mr Green and Mr Mitchell, there were the added considerations of their election to travel in the cargo area of the car without seatbelts and, in the case of Ms Campbell, the allegation that she failed to wear a seatbelt. No issue was raised concerning Mr Campbell's use of marihuana prior to the accident." The defendant relied on The Insurance Commissioner v Joyce, Joslyn v Berryman, Imbree v McNeilly and Miller v Miller. After reviewing these authorities her Honour said: "27. These authorities confirm that in appropriate circumstances it may be open to a court to decide that the level of culpability of a plaintiff who travels in a vehicle with a driver whose capacity to drive is impaired by alcohol or some other drug is such that it would be incongruous to permit that plaintiff to claim that the driver owes her or him a duty of care. 28. Justice Dixon in Joyce said that the onus was on the defendant to establish that special facts existed to displace the prima-facie duty of care. In the same case, Chief Justice Latham referred to situation where a drunken driver cannot even be expected to act sensibly. Justice McHugh in Joslyn said there needed to be an extreme case or facts that established special and exceptional circumstances. 29. It was necessary therefore to examine the evidence to determine the extent to which it could fairly be held that the facts and circumstances in this case were so special and exceptional that they were extreme …" Her Honour then recited, in essence, what the defendant had submitted. 1. Her Honour then drew attention to certain facts which she had not earlier recited: 1. the drivers' BAC was 0.09mg/100ml, a mid-range PCA offence, which "did not suggest an extreme level of intoxication"; 2. observations of witnesses as to the driver's behaviour after they left the Royal Hotel at Tingha: Ms Blacklock and Ms Jerrard noticed nothing amiss; Mr Grills thought he was "pissed" when they left the hotel and Ms Campbell thought that her twin brother had drunk so much that it might be dangerous for him to drive; her Honour also recorded various observations of passengers as to as to Mr Campbell's driving; 3. after the accident Mr Moran spoke with Mr Campbell and noticed nothing to suggest that Mr Campbell was "drunk"; 4. police officers observed after the accident that the driver's eyes were blood-shot, he was unsteady on his feet and smelt (strongly) of alcohol; 5. Professor Starmer noted that at the age of 19 years signs of intoxication were more obvious when the BAC reached 0.08mg/100ml (the driver was 19 years old); 6. the driver was unlicensed. 1. Her Honour then continued: "35. Clearly the purpose of the legislation is the protection of road users. No criminal penalty is imposed on passengers who travel in a vehicle with a driver who is affected by alcohol. In that sense there was no joint illegal activity. 36. Mr Sexton SC argued that Joyce was not authority for the principle that there might be circumstances in which a driver owed no duty of care to a passenger and that, in any event, s 141 of the Motor Accidents Compensation Act 1999 displaced any such principle. I accepted that Dixon J decided Joyce on the basis that there was a breach of duty in respect of which considerations of contributory negligence and voluntary assumption of risk arose. He was in the minority in that case. 37. Regardless of the proper reading of the judgments of Latham CJ and Rich J in Joyce, the extracts that I have cited from subsequent decisions made it clear that the High Court accepted that there might be circumstances in which a driver owed no duty of care to a passenger. 38. I did not agree that s 141 of the Act altered the law in this respect. It deals with the standard of care required of a driver who owes another person a duty of care. This in my view, made it apparent, that there must first be a finding of duty of care, before the provisions of the section were to be applied. 39. On the other hand, s 138 of the Motor Accidents Compensation Act 1999 makes it clear that commission of an alcohol related criminal offence in relation to driving does not necessarily disqualify even a driver from recovering compensation for injury. Failure to wear a seat belt is also expressly provided for in s 138. 40. The requirement under s 138 is that damages by reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (s 138(3)). 41. Of the effects that Professor Starmer thought would be evident, only loquacity was reported by the witnesses who were with Mr Campbell prior to the accident. None of them reported slurred speech, loss of coordination, unsteady gait, nystagmus, flushed face, irritability, impaired attention, fine motor control or gross motor control. Aside from driving at speed, none of them reported behaviour on the part of Mr Campbell in the car itself that indicated that his capacity to drive was impaired. The slurred speech and unsteady gait reported by the police officers were equally consistent with the consumption of alcohol and Mr Campbell's distressed state immediately after the accident. 42. I took into account these facts, the authorities and the legislation in concluding that it had not been established that this was an extreme case where there were special and exceptional circumstances or where Mr Campbell was so affected by his consumption of alcohol that he could not even have been expected to act sensibly. 43. I decided that Mr Campbell's duty of care to the plaintiffs was not displaced by the circumstances in which the accident occurred and that the extent to which the plaintiffs in this case placed themselves in positions of peril was to be determined by reference to the principles of contributory negligence." 1. The defendant appealed but the "subject matter of each appeal [was] the assessment made … as to the degree of contributory negligence of each of … the plaintiffs …": [2013] NSWCA 219 at [2]. In other words, the Nominal Defendant abandoned in the Court of Appeal the "no duty" defence. Consideration 1. What is the current status of The Insurance Commissioner v Joyce, in particular, the well-known dictum of Dixon J? In Imbree v McNeilly at [78] (see [158] above), Gummow, Hayne and Kiefel JJ pointed out that the introduction of statutory provisions for apportionment of liability on account of contributory negligence would now effectively preclude complete denial of liability in a case like Joyce, if the other two forms of analysis adopted in that case (no breach, and voluntary assumption of risk) were not adopted. Voluntary assumption of risk is no longer available: MACA, s140. "No breach" results from the application of a lesser standard of care, or a reduced duty of care, because of the claimant's knowledge of the alleged tortfeasor's reduced capacity, but again that is no longer available: MACA s141. 2. In Miller v Miller at [63] (see [177] above) the plurality said that in determining the content of a duty of care, primacy must be given to identifying the relationship between the parties, a principle of long standing in the law of Australia stemming from the reasons of Dixon J in Joyce. At [64] (ibid.) they pointed out that it is implicit in what was said in Joyce, Smith v Jenkins, and Imbree v McNeilly that the question whether one person owes a duty of care arises from the "relations, juxtapositions, situations or conduct or activities" in question. This is a dictum of Dixon J in Joyce at p57 (see [149] above). 3. I turn then to the dictum of McHugh J in Joslyn v Berryman at [30] (see [154] above). Cook v Cook (1986) 162 CLR 376 has not been overruled: Imbree v McNeilly. Gala v Preston has now been affirmed in Miller v Miller but the reasoning has now been better explained and it is no longer necessary to refer to proximity. However, Imbree v McNeilly does negate the concept of a "fluctuating" standing of care, with which his Honour was unhappy. His Honour's "special and exceptional circumstances" refers not to a case in which no duty of care is owed, but to the circumstances in which the duty of care of a motorist to other road users is attenuated. The only circumstance of which I am aware, from the case law I have read, where a motorist did not owe a duty of care to another road user is where both the motorist and the claimant are involved in a joint criminal enterprise as discussed in Miller v Miller. This is not such a case. 4. Leaving aside any criminal liability for the collision itself, on the evidence before me, the plaintiff was guilty of: (1) driving an unregistered and uninsured motor vehicle on a public road; (2) driving whilst unlicensed; (3) driving under the influence of alcohol. On the same basis, Lamont was guilty of: (i) driving an unregistered and uninsured motor vehicle on a public road; (ii) riding a motor cycle whilst not wearing a helmet; (iii) driving under the influence of alcohol, or, alternatively, a high range PCA offence (see [52] above). Each of the plaintiff and Lamont was guilty of such crimes whether the other rode his machine or not. Lamont was guilty of his crimes if the plaintiff stayed at his house. The plaintiff was guilty of his crimes if Lamont stayed sitting or standing or recumbent at the plaintiff's residence. There was no joint criminal enterprise such as in Smith v Jenkins and Gala v Preston. In this respect the defence elided a common activity into a joint criminal enterprise. 1. There is no argument available that Lamont did not owe the standard duty of care of a motorcycle rider to every other user of LCER on 16 October 2013 whether he or she was a motorcycle rider, other than the plaintiff, a motor car driver and any passenger in such a vehicle, the driver of a milk float or other lorry driver making an early morning delivery or a passenger walking on the nature strip or in the gutter as there was no footpath (see photographs, exhibit A). The defence submission is that the only person to whom Lamont did not owe the standard duty of care was the plaintiff because he ought to have known of Lamont's reduced ability to drive his motorcycle because they had been drinking together since the mid afternoon of 15 October 2013. The analogy is clear, the analogy of a person accepting a lift in a car or a ride on a motorcycle driven or ridden by a person known to be drunk. However, such cases are now to be dealt with on the basis of negligence on the part of the driver/rider and contributory negligence on the part of the (pillion) passenger. If this analogy be correct, and I believe it is, then Lamont owed the plaintiff a duty of care. 2. In my view, as a matter of policy, the circumstances would have to be extraordinary, or, to use the phrase of McHugh J, "special and exceptional", to find that the driver or rider of a motor vehicle on a public street did not owe a duty of care to another such user, absent a joint criminal enterprise as discussed above. Such circumstances might have been if they had been engaged in the "game" of "chicken". Another might be if they were engaged in "street racing", side by side, handle-bar to handle-bar, in deliberate close proximity to each other. On the case law I have canvassed in these reasons, a case in which it might have been found that no duty of care was owed to the plaintiff is Mackenzie v Nominal Defendant (see [156] above) but the defence was not pleaded in that case! As I categorised the collision at [144] above, I could not describe the circumstances of the collision as "special and exceptional" or extraordinary. Accordingly, I find that Lamont owed the plaintiff a duty of care. Consistently with Imbree v McNeilly and MACA s141, Lamont owed the plaintiff the standard duty of care of a motorcycle rider to another user of the highway. Defence under Civil Liability Act 2002, s 5I 1. Paragraphs 13 and 14 of the Amended Defence dated 30 May 2016 upon which I granted the defendant leave to rely on 31 May 2016 (T74.19), but erroneously date stamped 1 June 2016 (my then Associate advanced the date stamp prematurely), are: "13. Further and in the alternative, in answer to the whole of the Statement of Claim, the Defendant says and the fact is that the Plaintiff was engaged in an activity which involved an inherent risk of harm and the harm suffered by the Plaintiff was as a result of the materialisation of that risk and the Defendant is not liable to the Plaintiff. The Defendant relies upon s5I of the Civil Liability Act, 2002. PARTICULARS (a) both motor cycles were not fitted with headlights and did not have any form of lighting or illumination nor reflectors meaning neither bike had any means of illuminating the length of the road ahead of it nor anything situated on it. The inherent risk of the Plaintiff riding a motorcycle in these circumstances in the dark was that he would collide with something on the road which he could not see so as to avoid it. (b) this was compounded by choosing to ride in company with another motorcycle which similarly was not fitted with headlights, did not have any other form of lighting or illumination or reflectors thereby adding to the inherent risk of collision with that vehicle as well as other objects which may have been on the road. Neither rider was wearing reflective or fluorescent clothing; both wore dark clothing. (c) this was further compounded when both of the motorcycle riders were intoxicated by adding an inherent risk that one or both of them would have impaired awareness, impaired judgment and/or reaction times. (d) the risk of collision could not be avoided by the exercise of reasonable care and skill because: (i) neither rider could see what, if anything was on the road way in front of him; (ii) both of the riders were intoxicated and unable to exercise any reasonable care or skill in the riding of the motorcycle. 14. In further answer to the whole of the Statement of Claim, the Defendant says and the fact is that the Plaintiff was engaged in a dangerous but unnecessary activity and the Defendant is not liable for the harm suffered by the Plaintiff as a result of the materialisation of an obvious risk of a dangerous but unnecessary activity engaged in by the Plaintiff. PARTICULARS (a) riding an off-road motorcycles in the company of another rider both of which cycles were unsafe and not registered; (b) riding an off-road motorcycle in the company of another motorcycl[ist] who was riding under the influence of intoxicating liquor; (c) participating in racing activities with motorcycles with another motorcycle was riding under the influence of alcohol; (d) participating in off-road riding and racing in the early hours of the morning in the dark with another motorcyclist who was riding under the influence of alcohol; (e) participating in off-road bike activities and racing in the dark when neither motorcycle was equipped with headlights, tail lights or reflectors; (f) the collision between motorcycles was an obvious risk in all the circumstances." The plaintiff then filed in Court a reply dated 25 May 2016 (see T75.01) but the same erroneous date stamp was affixed to that document. The one paragraph of that pleading is this: "1. Responding to the defendant's pleading that at the time of the accident Lamont was incapable of exercising any duty of care to other road users (including the plaintiff) [which allegation is not conceded], the plaintiff says that if the road conditions in conjunction with the absence of a headlight on Lamont's motorbike and/or Lamont's intoxication and/or fatigue on the part of Lamont, meant that he was incapable of exercising any care for the safety of other road users (including the plaintiff), then Lamont was under a duty not to take his motorcycle onto the roadway and breach the duty owed to other road users (including the plaintiff) by doing so." 1. The Defendant's Outline of Closing Submissions (MFI 15) contains this on this defence: "37. Even if the Court were to find that Mr Lamont did in fact owe the Plaintiff a duty of care on the facts of the case (which it should not), the operation of s5I of the Civil Liability Act NSW 2002 (CLA) would prevent the Court from finding any liability on the part of the Nominal Defendant. 38. The reason for this is straightforward and arises from the wording of the section itself. Specifically, "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Clearly, the riding of an unregistered off road motorcycle on a roadway in the dark without any headlight in circumstances where the rider is fatigued and intoxicated, carries an inherent risk of harm and cannot be avoided by the exercise of reasonable care and skill in such circumstances." 1. Section 5I of the Civil Liability Act 2002 ("CLA") is contained in Part 1A, Division 4 of that Act. This Division bears a heading "Assumption of Risk". The sections in this Division are: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ("the defendant" ) does not owe a duty of care to another person ("the plaintiff" ) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk." 1. Section 5I was considered in Paul v Cooke [2013] NSWCA 311; (2013) 85 NSWLR 167. An application for special leave to appeal was refused by the High Court: [2014] HCA Trans 25. The principal judgment was given by Leeming JA, additional observations were made by Basten JA and Ward JA agreed with both her colleagues. The opening judgment of Basten JA pithily sum up the facts of the case and his observations on s5I: "1. In 2006 the appellant, Christine Paul, was diagnosed with an aneurysm in her right anterior cerebral artery. The aneurysm comprised a berry-shaped bulge in the wall of the artery. To avoid the risks of a spontaneous rupture (a similar event having killed her sister) the appellant underwent an operation to remove the aneurysm. The operation (known as "coiling") involved depositing a number of tiny coils into the aneurysm, via a micro-catheter inserted through an artery in the groin. In the course of the operation the aneurysm ruptured, without any lack of skill or care on the part of the operating practitioners. The appellant suffered serious and permanent disabilities which, if recoverable by way of damages, were agreed in the figure of $1 million. 2. The respondent to the proceedings, and the defendant at trial, was Dr Kenneth Cooke, a radiologist who had failed to diagnose the aneurysm when an angiogram had been undertaken in 2003. It was agreed that he failed to exercise reasonable skill and care in not identifying the aneurysm which in 2003 was the same size and shape as in 2006. The appellant brought proceedings against Dr Cooke, claiming damages for his negligence. 3. As the case was ultimately presented at trial, the sole basis upon which the respondent was said to have been legally responsible for the adverse outcome of the operation was a statistical assessment of the likelihood of the risk of rupture during the operative procedure. The risk was in the range of 1%-2%. Therefore, the appellant contended, had the operation been undertaken in 2003, or at any other time, on the probabilities, she would not have suffered the rupture. Accordingly, the respondent's negligence "caused" the damage which in fact eventuated and she was entitled to recover from him. 4. The trial judge, Brereton J, rejected that reasoning: Paul v Cooke [2012] NSWSC 840. The appellant contended in this Court that the conclusion of the trial judge was erroneous. Leeming JA has concluded that it was not and that the appeal should be dismissed with costs. I agree with that conclusion and with his analysis of the evidence and the operation of Part 1A of the Civil Liability Act 2002 (NSW). However, the conclusion can be reached on a more confined basis. 5. The factual premises on which the appeal must be decided were as follows: (a) the appellant had suffered an aneurysm before the angiogram undertaken in 2003; (b) there was no physical change in the aneurysm over the period from the angiogram in 2003 until the operation in 2006; (c) unsurprisingly, there was no deterioration in the standards or success of available medical procedures over that period, and (d) although there may have been a change in medical practice as to the preferred form of treatment, the risk of rupture associated with the "coiling" procedure adopted in 2006 remained the same, namely 1%-2%. 6. If a negligent delay in diagnosis led to an increased risk of an adverse outcome, which in fact occurred, it might be said that the patient had lost the chance of a better medical outcome. However, damages are not recoverable for the loss of such a chance unless the better outcome is the probable result: Tabet v Gett [2010] HCA 12; 240 CLR 537; Gett v Tabet [2009] NSWCA 76; 254 ALR 504. It should follow that where the conduct of a medical practitioner, albeit negligent, did nothing at all to increase the risk of particular harm materialising, that practitioner cannot be liable for the adverse outcome which in fact eventuated. 7. It is now necessary to articulate that conclusion by reference to the provisions of the Civil Liability Act, Pt 1A. The short answer is, as explained by Leeming JA, that the harm suffered by the appellant resulted from the materialisation of a risk that could not be avoided by the exercise of "reasonable care and skill". Section 5I provides that a person is not liable in negligence for such harm. 8. The trial judge held that the "reasonable care and skill" referred to in s 5I(2) is that of the defendant, and not that of "some subsequent intervener whose intervention is occasioned by the defendant's negligence": at [118]. Accordingly, the trial judge concluded that the respondent could not rely upon s 5I: at [119]. 9. This construction may well be correct in some circumstances. For example, if a radiologist mistakenly identified a condition from which the patient did not suffer, as a result of which the patient underwent an operation with an inherent risk of a catastrophic outcome and the outcome eventuated, through no lack of care on the part of the surgeon, the radiologist might be liable. However, that is not this case and the outcome depends, not on reading some implied restriction into the provision, but on the relationship between the act of negligence and exposure to the inherent risk. In this case there was none. (It is not necessary in the present case to consider how s 5I operates in circumstances where the negligence increases an inherent risk.)" 1. Leeming JA pointed out that if a case can be decided under s5I, it ought be: "53. If a case can conveniently be decided under s 5I, it should be. The language of s 5I reflects the elements of liability which the plaintiff needs to establish. That is why it is framed in terms of the broader causal language of "as a result of", reflecting the language of s 5A(1) rather than of s 5D(1), and why its opening words are "A person is not liable in negligence". That is reinforced by s 5I(3), which carves out from the operation of the section "to exclude liability" a class of liability connected with a duty to warn. Section 5I does not deny s 5D causation; rather it answers the implicit question posed by the "claim" contemplated by s 5A(1) negatively: the defendant is not liable for that claim for damages for harm resulting from negligence. 54. The reasons for my view that s 5I should be applied if it is available are as follows. First, once s 5I is engaged, there is no liability for a failure to exercise reasonable care and skill. The entire inquiry under Part 1A comes to an end. 55. Secondly, s 5I is unyieldingly prescriptive. In contrast, the confining element in s 5D(1) of "scope of liability" is burdened with evaluative and contestable elements: the "appropriate" extension of scope of liability, and "whether or not and why responsibility for the harm should be imposed". Whenever a trial or an appeal is determined by reference to s 5D, it is necessary to address those contestable issues, which reflect what McHugh J called the "common experience of the relevant community": Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at [34], applied by Campbell JA in Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [252]-[253]. Predictably, when the appeal was heard, submissions on s 5D occupied far more time and many more pages than submissions on s 5I. Chief Justice Allsop has noted that s 5D might tend to increase the cost and complexity of litigation ("Causation in Commercial Law" in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law (2011) Lawbook Co, 269 at 296); the same concerns which underlie the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) support relying on s 5I where it is applicable. 56. Thirdly, it can never be "appropriate" pursuant to s 5D(1)(b) to extend scope of liability to circumstances excluded by s 5I (or any other of the express exclusions in Part 1A). That is so because, although little guidance is given as to what are the "relevant things" in s 5D(4) which inform what is appropriate, one such thing must surely be a provision in the self-same Part of the Act which negates liability in the first place." 1. His Honour held that s5I is about unavoidable risks of things occurring, not about unavoidable occurrences: [60] to [69]. His Honour's construction was largely textual but also relied on a number of earlier relevant decisions which I need not cite. Between [70] and [78] he pointed out, as was pointed out by Basten JA, that the "inherent risks" are not confined to those which cannot be avoided by the reasonable care and skill of the alleged tortfeasor. His Honour then considered whether s5I was a "defence" (as it was treated in the current proceedings): "79. Submissions were made as to whether s 5I was a "defence", although strictly this did not arise on the notice of appeal or notice of contention. Nothing turns on this question for the purposes of this appeal - Dr Cooke squarely pleaded and relied on the section, and there was ultimately no dispute as to the facts. True it is that the appellant had advanced a case at trial that Dr Cooke had failed to establish whether intra-operative risk in 2006 could have been reduced, in support of a submission that "cannot be avoided" meant "cannot be avoided or minimised" but this was not pressed on appeal. 80. It follows that in its application to this appeal the question whether s 5I is a "defence" is an arid one on which nothing turns. Moreover, as was indicated in CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 at [6]-[8], the language of "defence" is itself loosely used: it may denote a defence in the strict sense, with an evidentiary and legal onus resting with the defendant, or it may instead denote a ground of exculpation, which once raised does not shift the legal onus of displacing it from the plaintiff. It seems clear from its broad language that s 5I is a complete answer to liability which is governed by Part 1A. It resembles what in other contexts has been called a "safe harbour": cf Bond v Barry [2008] FCAFC 115; (2008) 173 FCR 106 (s 65A of the Trade Practices Act 1974 (Cth) which disapplies a range of other provisions in that Act where it is satisfied and which lends itself to early determination). Other examples may be seen in tax (MTAA Superannuation Fund (RG Casey) Building Property Pty Ltd v Commissioner of Taxation [2012] FCAFC 89; (2012) 203 FCR 415) and copyright (Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16; (2012) 86 ALJR 494 at [25]-[26]). If a defendant wishes to take advantage of the protection afforded by that section, it is for the defendant to allege it and, I am inclined to think, to prove it. That is to say, I do not consider that it is for the plaintiff in every case where s 5I is raised to negate its applicability (contrary to the ordinary position in criminal legislation where the legal onus ordinarily remains with the prosecutor). That said, it unquestionably remains for the plaintiff to establish s 5D legal causation, and the logical consequence of so doing may (and often will be) to negate s 5I." 1. Both Basten and Leeming JJA dealt with the finding of the trial judge that causation was not established for the purposes of s5D of CLA but, as no argument was advanced under that section in the current proceedings it is unnecessary to deal with that provision. 2. Part 1A, Division 4 of CLA was also considered in Schultz v McCormack [2015] NSWCA 330. The first part of the headnote provided by the Court of Appeal is this: "The appellant, Sheran Ann Schultz, was injured when she slipped and fell on a tiled floor, which was, in effect, the top step of the verandah of the home of the respondents, Norman McCormack and Cathryn McCormack. The accident took place at about midnight. The surface of the verandah had become wet due to rainfall earlier that evening, causing the appellant to slip on it whilst turning to walk down the steps having kissed one of the respondents goodbye. As a result of her fall, the appellant fractured her right ankle and sustained various soft tissue injuries. The respondents claimed that since tiling the front porch in about 2004 – 2005, neither had noticed any slipperiness in relation to the porch; nor had there been any other accidents on the tiles. The appellant commenced proceedings in the District Court claiming damages for the respondents' alleged negligence. The appellant's statement of claim pleaded that the respondents ought to have warned her that the tiles on the landing were unusually slippery when they became wet, and that the tiles were likely to be excessively slippery, in circumstances where the respondents knew, or ought to have known, that the tiles had become wet due to rainwater reaching them. The appellant failed in her action in the District Court. The primary judge found that while the risk of slipping on the wet steps was foreseeable and not insignificant, the appellant's fall and injury was the materialisation of an "obvious risk" within the meaning of s 5F of the Civil Liability Act 2002 (NSW) ("CLA") such that the respondents did not owe her a duty of care to warn her of it. Notionally, his Honour assessed the appellant's contributory negligence at 50 per cent." Levy DCJ had assessed the Plaintiff's damages at $782,415.65 but that had to be read down to $750,000 as the plaintiff had not sought to claim an amount in excess of this Court's jurisdictional limit for such a claim. The court of Appeal set aside his Honour's verdict and judgment and his finding of contributory negligence and entered judgment for the plaintiff/appellant for $750,000. 1. McColl JA said: "89. Mr Sheldon complained that his Honour identified the wrong risk, which he argued must have been slipping on the landing (or possibly the steps) because it was (or they were) wet. That appears to me to be the risk the primary judge identified. It is plain that his focus was whether there was an obvious risk of slipping on the wet steps. In my view that was a sufficient description of the risk of harm. 90. The principles concerning the determination of what constitutes an "obvious risk" for the purposes of CLA, s 5F were set out recently in [Collins v Clarence Valley Council [2015] NSWCA 263] as follows (footnotes omitted): "[136] The question of obvious risk in CLA, s 5F involves the determination of whether the plaintiff was exposed to a risk of harm which would have been obvious to a reasonable person in his or her position. The focus of the enquiry is not upon the putative tortfeasor but upon the person who has been injured or, more accurately, a reasonable person in his or her position. The test is an objective one and must take account of the objective circumstances of the person whose conduct is being assessed. In that inquiry "the plaintiff's state of mind is [not] determinative, but [rather] what a reasonable person in his or her position would regard as obvious". [137] 'Risk' in s 5F(1) 'refers to the chance or possibility of an occurrence which results in 'harm', which is defined in s 5 to include 'personal injury or death'. Whether or not a risk is 'obvious' may depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff. [138] 'Obvious' means that both 'the factual scenario facing the plaintiff' and 'the risk are apparent to and would be recognised by a reasonable [person], in the position of the [plaintiff] exercising ordinary perception, intelligence and judgment.' That means the Court will take into account, for example, the age and level of experience of the plaintiff. Whether or not a risk is 'obvious' may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff. A risk may be 'obvious' even though it has a low probability of occurring and is not prominent, conspicuous or physically observable. [139] As I have said, prima facie, the plaintiff's actual knowledge of matters which constitute the risk of harm is irrelevant, except to the extent that how any such knowledge was acquired may be relevant to the forward looking inquiry as to whether the risk would have been obvious to a reasonable person in his or her position. However, as the 'obvious risk' inquiry is into the knowledge that a reasonable person in the appellant's position should be taken to have had, it may be relevant to know the extent to which he or she was actually aware of the risk in whole or in part. That 'would be a circumstance to be taken into account when considering what would have been obvious to a reasonable person in the position of the respondent.'" 91. It is clear from the primary judgment that the primary judge found the appellant slipped on the wet tiles at the edge of the verandah. Accordingly, the primary judge's finding that after she fell the appellant "realised that the surface of the steps was wet, but that the top of the landing was dry", cannot stand." Her Honour went on to point out why the risk was not obvious in that case. Macfarlan JA agreed with McColl JA and drew attention to further evidentiary matters. Beech-Jones J dealt the matter on a factual basis, purely on the unchallenged evidence led at the trial. 1. There is no dichotomy between an "obvious risk" and an inherent risk. Some inherent risks may also be obvious. In Wyong Shire Council v Vairy [2004] NSWCA 247, Tobias JA said: "163. It is also appropriate, having defined an obvious danger, to draw a distinction between an "obvious danger" and an "inherent danger". The point is that an obvious danger is not necessarily an inherent danger. Just as a danger may be both obvious and inherent, it may, dependent upon the circumstances, also be obvious and non-inherent. For that matter, a hidden danger need not necessarily be a non-inherent danger: a danger could, in a given case, be hidden and inherent. Accordingly, the fact that a danger is (or is not) inherent will not be a clue to whether such a danger is obvious. However, as will be explained below, the fact that a danger is inherent or non-inherent may, in some circumstances, be a factor of weight in determining if a reasonable response of an occupier under a duty of care toward an entrant involves the need (or duty) to warn of the danger. 164. An inherent danger is a danger (or risk) attaching to a condition or activity that cannot be removed by the exercise of due care: Prast at [35]; Rogers v Whitaker (1992) 175 CLR 479 at 483,491. That is, by exposing oneself to a condition or activity involving an inherent danger one has thereby become subject to the possibility of the danger crystallising. For example, in [Prast v Topwn of Cottlesloe (2000) 22 WAR 474] , Ipp J (at [32]) explained that the risk of being dumped by a wave while bodysurfing was not only obvious, but also inherent since, once a bodysurfer has caught a wave, he or she has, as it were, become subject to the will of the wave which, even in normal surf conditions, may unexpectedly dump them. Accordingly, even the exercise of reasonable care on the part of the surfer will not remove this danger. [Rogers v Whitaker (1992) 175 CLR 479] provides a further example, but from the perspective of a hidden danger. In that case the risk of surgery to one eye was found to carry with it the inherent danger of both the patient's eyes becoming subject to sympathetic ophthalmia and consequently blindness. This danger, while inherent, would seem to have also been a hidden danger since a reasonable patient without specific medical knowledge would not, as at least a matter of commonsense, be aware of the danger. Hence the necessity for a warning. 165. Of particular concern in the context of the present case is the danger associated with diving into water of unknown depth. Generally speaking such a danger will be non-inherent where the depth of water is constant or stable; for example, in a swimming pool. By ascertaining either the depth of the water before diving or by the occupier giving a warning (or an indication of the depth) under such constant conditions, the danger (be it hidden or obvious) can be eliminated all together. 166. Further, a danger may be non-inherent where there exists an object below the surface of the water blocking the trajectory of a dive. Such a danger may perhaps also be hidden if, on the facts of the case, the object is obscured from the diver. One example, considered below, is the United States case of Jackson v TLC Associates (1998) 706 N.E 2d 460. In such circumstances the relevant factor making the danger non-inherent is not the stability of the body of water but the fact that the location of the object can be determined and avoided. 167. However, where the dive is to be undertaken in an environment where the depth of water is subject to change at short notice and without reasonable warning, then the danger (individual circumstances depending) will generally be an inherent danger. That is, under such conditions, the giving of a warning or the checking of the depth of the water prior to diving may not remove the risk. For instance, generally a dive into the sea will be subject to the surge, swell, tide and the continuous rise and fall of the waves. Further, the seabed itself may be undergoing change, sometimes at short notice, as sands are washed about as the sea's moods and tempers constantly fluctuate. In such cases, particular circumstances depending and irrespective of the danger being obvious or hidden, the danger will be inherent." 1. What was the "risk of harm" for the purposes of s5B of CLA (see McColl JA at [85], quoted in [201] above)? As her Honour said at [137] of Collins v Clarence Valley Council (quoted in [201] above) the focus of this enquiry is upon the reasonable person in the plaintiff's position. In my assessment, the risk of harm which confronted the plaintiff was the risk of colliding with or having his riding interfered with by Lamont because of Lamont's reduced riding skills due to his alcohol consumption and/or lack of sleep. By saying "having his riding interfered with by Lamont", I am envisaging conduct such as falling off his bike, or falling with his bike, into the plaintiff's path, causing the plaintiff to take evasive procedures, or suddenly and without warning swerving across the plaintiff's path, causing the need to take evasive procedures. With the utmost respect to the defence, that is an obvious risk, a risk which ought to be obvious to a reasonable person (i.e. unaffected by alcohol and unaffected by fatigue) in the plaintiff's position. This obvious risk could have been avoided by the exercise of reasonable care by each of the plaintiff and Lamont: as submitted by Mr Stone SC they could have waited for an hour until after sunrise; they each could have had a rest/sleep first; they each could have waited for a number of hours, until they "sobered up", allowed the alcohol to be excreted from their blood systems. Since the risk could have been avoided it cannot be an "inherent risk" for the purpose of the CLA. The defence pleaded under s5I of CLA fails. Liability 1. Prior to being amended, par 14 of the Amended Defence, quoted in [193] above, seemed to raise a defence under CLA, Part 1A, Division 5 ("Recreational Activities") but that was not the defendant's intention. Paragraph 14 was amended by replacing the original "recreational" with "but unnecessary". Part 1A, Division 5 does not apply to a motor accident: s3B(2). Paragraph 14 was confined to a factual pleading, which added nothing to the matters I have already canvassed. The defence also relies on ss 5F to 5H of the Act but the effect of those provisions is merely to relieve the defendant/Lamont of any obligation to give notice of the obvious risk. The failure to given such notice is not part of the plaintiff's case. 2. Having found that Lamont owed a duty of care to the plaintiff and not having found any statutory impediment or "defence", there is no reason not to heed par 3 of the Amended Defence: "… if a duty of care was owed to the Plaintiff then the Defendant admits paragraph 9 of the Statement of Claim." Paragraph 9 of the Statement of Claim is this: "9. In crossing to the incorrect side of the road and colliding with the Plaintiff's motorbike, Lamont has breached the duty of care owed to the Plaintiff. Particulars of breach of duty of care (a) Failure to stay within his allocated portion of the roadway. (b) Crossing to the incorrect side of the roadway. (c) Failure to steer or control the motorcycle. (d) Driving the motorcycle whilst intoxicated. (Police measured BAC of 0.107)" The facts establishing a cause of action in the tort of negligence are therefore admitted, the proviso having been established. Contributory negligence 1. The next issue is that of contributory negligence. Paragraph 15 of the Amended Defence is this: "15. Further in the alternative the Defendant says the Plaintiff's injuries were wholly or partially caused by his own negligence and in the circumstances it is just and equitable that the damages payable be reduced by 100% or such other amount as the Court considers just and equitable in the circumstances and the Defendant relies upon Division 8 of the Civil Liability Act 2002 including s5R and s5S. PARTICULARS OF CONTRIBUTORY NEGLIGENCE (a) Riding an off-road motorcycle while under the influence of intoxicating liquor; (b) Riding an off-road motorcycle in the dark whilst the motorcycle was unsafe and had no head light; (c) Engaging in a jointed enterprise to ride off-road motorcycles to an off-road dirt bike area whilst both the Plaintiff and the other motorcyclist were riding under the influence of alcohol; (d) Failing to keep a proper lookout; (e) Riding at a speed which was too fast for the prevailing conditions; (f) Failing to swerve or turn aside or to take evasive action to avoid a collision with another motorcycle; (g) Riding motorcycles in the dark when both the Plaintiff and the other motorcyclist were wearing dark clothing. (h) Engaging in a joint enterprise to ride off-road motorcycles with another motorcyclist when the Plaintiff knew or ought to have known that Timothy Lamont was intoxicated." 1. As to those particulars: 1. I accept that the plaintiff was riding an off-road motorcycle whilst under the influence of alcohol (see [135] to [192] above); 2. I accept that the plaintiff's motorcycle had no headlight, or any other light or reflector, but there was no evidence that it was otherwise unsafe to ride; I also accept that there was no natural celestial light at the time, but street lighting and lines of visibility were good on the relevant section of LCER and if lighting were a factor in the collision (which I do not accept) it could only have been a minor one; 3. I assume that what was intended by "jointed enterprise" was a "joint enterprise" which, as I have already pointed out at [190] is an inappropriate description of a common activity; leaving aside the pleonastic averment that the plaintiff was riding under the influence of alcohol, I interpret this particular to mean that the plaintiff rode his motorcycle in company with Lamont knowing or ought to have been knowing that Lamont was riding under the influence of alcohol; I accept this: see [203] above; 4. this allegation is almost de rigueur in cases such as these; there is no available evidence on this issue; 5. I have found that the plaintiff was travelling between 52 and 53 kph (see [73] above) which was slightly above the speed limit and that Lamont was travelling at a speed just over 60 kph; there is no evidence that the plaintiff's speed was excessive "for the prevailing conditions"; 6. there is no evidence either way on this issue; the plaintiff's alcohol intake may well have affected his perception/reaction time, but that is really covered by the first particular; 7. firstly, see (b) above; I dealt with this issue at [60] and [61] above where I concluded that there were sufficient contrasts of colour on both the plaintiff's motorcycle and his helmet to rebut any suggestion that the plaintiff was in any way "disguised" or made less visible than the plaintiff on his motorcycle ought to have been; finally, there is no evidence of what clothing the plaintiff was wearing at the time of the collision, aliter for Lamont – see [63] above; 8. this is another way of expressing what I have interpreted particular (c) to mean and draws, obviously, the same comment. 1. MACA s138 is this: "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." 1. Both parties relied heavily on what fell from Basten JA in Nominal Defendant v Green et Ors [2013] NSWCA 219 (see [182] and [186] above) on the subject of contributory negligence. So shall I. After quoting an abbreviated form of s138, his Honour continued thus: "31. What appears not to have been appreciated by the parties in presenting their respective cases at trial was that the assessment of contributory negligence was governed by Part 1A, Div 8 of the Civil Liability Act: see ss 3B(1)(e) and (2)(a). Section 5R, which is found in Div 8 provides: 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. 32. On one view, an effect of s 5R is to pick up and apply, as best one can, to the conduct of the person who suffers harm, principles relevant to determining negligence on the part of the person owing a duty of care. That would include the general principles set out in ss 5B and 5C. That in turn would be consistent with the fact that Div 2 of Pt 1A applies to motor accidents. Significantly, s 3B(2) of the Civil Liability Act provides that s 49 also applies to motor accidents. That section states: 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. 33. The way in which this provision interacts with s 138 of the Motor Accidents Compensation Act is by no means self-evident. Section 49(1) is, in terms, concerned with the duty and standard of care owed to the person who suffers harm; questions of contributory negligence are concerned with the standard of care imposed on that person in relation to his or her own responsibility for the harm suffered. On one view, the effect may be that the standard expected of the victim is not affected by the victim's intoxication. However, no submissions were addressed to the operation of this provision and, no reference having been made to it in the judgment below, this case is not an appropriate vehicle to determine how it might apply. In the circumstances, it is not useful to address further the appellant's complaint that the trial judge "made no specific finding about Ms Campbell's own sobriety": written submissions, par 2. 34. The trial judge correctly identified the relevant principles as those derived from the judgment of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494: "The making of an apportionment as between a plaintiff and a 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."" 1. Sidis DCJ had found that the damages of each of Mitchell Green and James Golding were to be reduced by 40% for their contributory negligence (they travelled in the luggage compartment of a station wagon and were held to have either knowledge or constructive knowledge of the driver's being under the influence of alcohol). She also found that the driver's twin sister, Twilia Campbell had been guilty of contributory negligence and her damages were reduced by 35% as she was not wearing a seatbelt and was ejected from the vehicle, and was aware that her brother had drunk so much that it might be dangerous for him to drive. Each case, of course, depends on its own particular facts. However, the appellant in that case, like the present defendant, submitted that the finding of contributory negligence ought to be 80%. 2. After considering the facts of the case then before him, Basten JA continued: "… the appellant submitted that the very substantial apportionment (80%) which it proposed was supported by three authorities, in each of which contributory negligence was assessed at 80%. In the first, Williams v Government Insurance Office (NSW) (1995) 21 MVR 148, the plaintiff and another couple had been drinking for several hours at a club. They left the club in a car owned by the plaintiff. Rather than drive herself, she handed the keys to her friend, with whom she had been drinking, whom she knew to be affected by alcohol and to be a learner driver. Her friend's husband, who was also inebriated, sat beside the driver, whilst the plaintiff lay down on the back seat of the vehicle. The driver lost control and the plaintiff was severely injured. The trial judge assessed contributory negligence at 80%, a figure with which this Court declined to interfere. (Kirby P, in dissent, would have reduced the figure to 40%.) Cole JA (with whom Meagher JA agreed) stated at 163: "Here, the appellant ought reasonably to have foreseen that to hand the keys of her car to an inexperienced, alcohol affected, unlicensed learner plate driver to be assisted by a person himself too affected by alcohol to drive was to act both unreasonably and without prudence. The appellant ought to have reasonably foreseen that so doing exposed her to risk of gross injury. The extent of risk of injury commences with driving with an L-plate driver. That risk may be regarded as modest because the learner driver is normally assisted by a competent licensed driver who can give her instruction sufficient to avoid or minimise the likelihood of accident and thus damage. The risk is increased to a very great extent if the person giving such assistance so as to minimise risk is himself so affected by alcohol as not to be able satisfactorily or effectively to perform that task. It is magnified to a much greater extent if the inexperienced driver is affected by alcohol. And is magnified a fourth time if the passenger who is accepting these risks then lies in the rear seat of the vehicle without a seatbelt." 44. The second case was Mackenzie v Nominal Defendant [2005] NSWCA 180; 43 MVR 315. This was also a case in which the owner of the vehicle (a motorcycle) travelled as a pillion passenger, having invited a friend who had no licence and was believed by the plaintiff to be "immature and irresponsible", to drive the motorcycle. The plaintiff said that he would not "in his right mind" have permitted him to drive the motorcycle: at [26]. The driver's blood alcohol level was estimated at 0.187% at the time of the accident. The plaintiff's blood alcohol level was estimated at 0.25%. The trial judge fixed the plaintiff's culpability at 100%. In considering whether this Court should interfere, Giles JA (with whom Stein AJA and Gzell J agreed) stated at [101]: "In reconsidering the reduction of the passenger's damages in Berryman v Joslyn [[2003] HCA 34; 214 CLR 552] a reduction of 60% was found, and in Williams v Government Insurance Office (NSW)a reduction of 80% was upheld. The cases turn on their own facts. I have gone to a number of other cases of intoxicated passengers of intoxicated drivers, and the assessments vary widely. It is necessary to make an assessment on the facts of this case." 45. The Court found error in the process of assessment and concluded that a just and equitable reduction was 80%: at [112]. 46. The third case relied upon was Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702. The plaintiff, the mother of an 11-year-old boy, permitted her son to drive the family car into the carport, whilst she was standing two metres in front of the vehicle. The boy's foot slipped from the brake to the accelerator causing the car to collide with the plaintiff. The trial judge had assessed the mother's contributory negligence at 50%. The appellant submitted that the reduction should have been 100%. This Court intervened, fixing the reduction at 80%. 47. There are a number of issues raised by the reliance placed on these cases. First, they are not "authorities" in the sense that they establish some legal principle: rather, each is an example of an assessment of responsibility based on particular facts. On the other hand, the wide variation in results noted by Giles JA may reveal an undesirable disparity in result between cases which are truly comparable. Kirby P in Williams was critical of "pious solecisms about the unique quality of the facts of each case", as a basis for not having regard to similar cases: at p 157. 48. Secondly, it is commonly said that an appellate court should be reluctant to interfere with a trial judge's finding as to contributory negligence, on the basis that reasonable minds may differ as to where within a particular range, the appropriate result is to be found: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201, adopted in Podrebersek at 493-494 and applied by this Court in Mousa v Marsh [2001] NSWCA 317 at [12] and in Mobbs v Kain [2009] NSWCA 301; 54 MVR 179 at [112]-[113]. The existence of a principle of restraint is important; its operation, however, may vary depending on the circumstances. British Fame was an Admiralty case determined by a judge with particular expertise in the area; Podrebersek was a jury case. Further, it is important to identify the nature of the challenge by the party seeking appellate intervention: see Tarabay v Leite [2008] NSWCA 259 at [24]-[35] (in my judgment, in which Allsop P and Bell JA agreed). The role of an intermediate appellate court in respect of such matters, like the role of Court of Criminal Appeal in relation to sentencing, is to ensure a degree of consistency in approach on the part of trial judges. Thus, where a finding is outside an appropriate range, this Court, on an appeal governed by s 75A of the Supreme Court Act 1970 (NSW), should usually intervene. 49. Thirdly, there is a superficial attraction in the submission made by senior counsel for the respondents Green and Golding that it cannot be just and equitable to attribute 80% of the blame for the accident to the injured passenger, when the primary causative event was the carelessness of the driver. However, the 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 of the injured plaintiff is problematic and highly fact-specific. For example, in Zanner v Zanner, the boy's mistake was to allow his foot to slip from the brake to the accelerator, an act of momentary inadvertence. His mother's error was to stand, unnecessarily, in the path of the vehicle whilst being driven by a young and inexperienced driver. In the present case, the respective failures of each plaintiff to avoid harm resulted from their willingness to travel in the car with a driver who was relatively inexperienced and intoxicated, and without seatbelts. The breach by the driver was not of a duty owed to himself, but of a duty of care owed to each of his passengers and, potentially, to other road users. 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. The range within which the resultant apportionment lies may, in a particular case, be quite broad. 50. The respondents noted that there were decisions in which similar conduct appeared to have given rise to findings of contributory negligence between 25% and 50%. In Dennis v NRMA [1997] NSWSC 570, James J assessed contributory negligence of 50% with respect to a claim by a plaintiff against his wife in circumstances where he knew she was driving while intoxicated and he, the plaintiff, was not wearing a seatbelt. In Nominal Defendant v Lane [2004] NSWCA 405 the trial judge reduced the plaintiff's damages by 40%, in circumstances where both he and the driver were significantly affected by alcohol (their readings being between 0.144g/100ml and 0.175g/100ml) and he was not wearing a seatbelt (although the vehicle was only fitted with seatbelts inappropriately attached to the doors). This Court (Giles JA, with whom Ipp and Tobias JJA agreed) declined to intervene. 51. The third case from this State was Dunnet v Brennan [2000] NSWCA 211; 31 MVR 362. The plaintiff and two friends, all of whom were inebriated, stripped in order to expose their buttocks to people in the following vehicle, not an activity of high social value. They climbed out of the rear window and stood on the rear bumper bar, grasping the rear roof rack. The plaintiff then climbed onto the top of the vehicle, but was thrown off and injured when the vehicle turned a corner. His damages were reduced by 25%. Fitzgerald JA (with whom Priestley and Powell JJA agreed) noted that the reduction "might seem curious" taking into account the respondent's intoxicated state and "reckless folly": at [13]. Noting that other minds might consider a higher figure appropriate, the Court concluded that 25% was within the available range and therefore not a conclusion with which the Court was entitled to interfere: at [15]. 52. As senior counsel for the respondents Green and Golding noted, neither these authorities nor those relied on by the appellant demonstrated any more than the availability of a wide range in broadly comparable circumstances. 53. If these cases were thought to be truly comparable, a range which extended from 25% to 80% is too broad to be acceptable. Even a range from 30% to 60%, which would allow the independent discretion of a trial judge to award half (or twice) what another judge would award, might appear to involve an element of arbitrariness or caprice. 54. However, the two groups of cases to which the Court was referred were not broadly comparable with the present case. As counsel for the respondents correctly noted, each of the cases relied upon by the appellant, where a reduction of 80% was upheld, involved a plaintiff who, either as the owner of the vehicle, or, as in Zanner, as the mother of a minor, was in a position, not merely to decide whether he or she should accept a particular risk, but to control the conduct of the intoxicated driver. Further, in each case the plaintiff not merely failed to control the driver, but actively invited the driver to drive. In the cases involving alcohol, the blood alcohol levels of the drivers were far higher than that of Mr Campbell. These comparative aspects of the conduct will readily justify an increase in apportionment for contributory negligence above the present range. 55. It is sufficient to say in the present cases, there was no reason demonstrated which took the conduct of the respective parties outside a range of 35%-40%. For these reasons, leave to appeal was granted, but the appeals dismissed." 1. The exercise which I am required to perform is to compare the whole of the conduct of each negligent person (i.e. Lamont and the plaintiff) in relation to the circumstances of the collision and then to allocate shares of responsibility to each of those parties. In other words, were I to find that the plaintiff were 80% responsible for the collision I would be finding that Lamont was 20% responsible for the collision, and vice versa. The submissions of the defendant concentrated on the failings or moral turpitude or stupidity of the plaintiff, rather than seeking to compare the conduct of each of the negligent persons. 2. The plaintiff's Submissions on Liability (MFI 16) contain the following: "143. In Nominal Defendant v Green, both driver and passenger knew the driver was unlicensed, knew the driver was intoxicated and knew that the passenger was unrestrained. The reason that the passenger's contributory negligence was only 35% was that the driver controlled the steering wheel. 144. The plaintiff submits that if the subject collision had occurred in the centre of the roadway with both vehicles travelling at equivalent speed and with both men having similar levels of intoxication, then a fair apportionment of their relative culpability and causal potency of their actions would be a 50/50 apportionment. In the foregoing hypothetical circumstances, anything other than an even apportionment of liability is difficult to justify. They would be equally to blame. 145. However, the foregoing hypothetical does not represent the facts of the current case. Relevant factors which shift the balance from 50/50 to a greater degree of culpability on the part of Lamont are the following: (i) Lamont had crossed grossly on to the incorrect side of the road, whilst the plaintiff had maintained an appropriate position in his own laneway. (ii) Lamont was travelling a grossly excessive speed for the circumstances (approximately 50-60km/h). The plaintiff's speed at 40-50km/h was probably also too fast for the circumstances, but was less a gross departure from the standard of care he owed himself than Lamont's departure from the standard of care owed to other road users. (iii) Lamont was significantly intoxicated, whereas evidence of the plaintiff's level of intoxication is entirely speculative. These factors substantially alter the balance. They indicate a much higher degree of relative culpability on the part of Lamont. 146. Further, when regard is had to the "causal potency" of each man's departure from the standard owed (for his own safety or that of others), if only Lamont had stayed on his own side of the roadway, this accident would never have occurred. By far, the highest degree of causal potency attaches to Lamont's failure to maintain positioning within his own laneway. In the available light, he should have been able to stay on his own side of the road. On the basis of the foregoing analysis, it is submitted that an appropriate reduction in the plaintiff's damages on the basis of his own contributorily negligent conduct is 25%. 147. It is readily acknowledged that if contributory negligence were measured in isolation (i.e purely asking how careless was the plaintiff), then 25% may, at first blush, appear inadequate. However, when relative culpability is measured and the plaintiff's want of care for his own safety is measured relative to Lamont's obligation to the exercise the ordinary care of a reasonable driver (in accordance with Section s.141 of the MAC Act), then Lamont's negligence is of a significantly different and greater magnitude than the plaintiff's. 148. Neither men should have been out at night on motorbikes without headlights, but only one was speeding and critically, on the wrong side of the road. To find Lamont three times more culpable than the plaintiff is a fair reflection of their relative culpability and the causal potency of Lamont's positioning on the incorrect side of the roadway." 1. The plaintiff provided me with a table to assist in measuring the respective liability of each of the plaintiff and Lamont (MFI 17): LAMONT COOPER Rode without headlights at night Rode without headlights at night Wore dark clothing Wore dark clothing Did not wear helmet Wore helmet Rode on the incorrect side of the roadway Kept to his side of the roadway Broke the speed limit (47-60km/h) Kept within the speed limit (42-50km/h) Rode whilst heavily intoxicated (BAC 0.156) Rode after drinking (BAC unknown) With regards causal potency, it will be submitted that the dominant causal fact was Lamont [sic] being on the incorrect side of the road. I make the following observations about this table: 1. The first two items in the table are, in my assessment, not material factors to the occurrence of the collision as the street lighting in the relevant section of LCER was adequate for each of the riders to have seen the other and their motorcycles and the plaintiff's helmet had sufficient contrast to make them clearly visible: as to lighting see my conclusion at [59] above; as to the motorcycles see [60] to [63] above. 2. The significance of the helmet is twofold: firstly, Lamont may not have brought his with him to Lake Conjola and had none to wear, but the plaintiff's wearing his helmet indicates he was taking precautions for his own safety; secondly, although the plaintiff's helmet may have attenuated the sound of the approach of Lamont's machine, there was nothing to muffle the sound of the approach of the plaintiff's machine towards Lamont: see [75] and [146](i) above. 3. There is no doubt that Lamont crossed the marked centreline and central camber of LCER and collided with the plaintiff on the plaintiff's correct side of the carriageway; furthermore, as the collision was on the left-hand side of each machine/rider, Lamont had crossed over the path of plaintiff. 4. My findings as to speed are different: Lamont was travelling at a speed just over 60 kph and the plaintiff was travelling at a speed between 52 and 53 kph. The plaintiff's infraction of the speed limit might be excused by the police but I doubt Lamont's infraction would be. In any event, speed is a factor in every collision: the higher the speeds, in general, the greater the risk. 5. The actual level of Lamont's intoxication has been ascertained by Dr Perl at 0.156g/100ml. The level of the plaintiff's alcohol affectation can not be so ascertained. I have done the best I can on the evidence available (see [135] to [142] above). I concluded that it is likely that the plaintiff has consumed a similar amount of alcohol to Lamont, but that the effect of a similar alcohol intake on the plaintiff would not be as great as it was on Lamont. 6. That which this table completely omits is the fact that the plaintiff knew or ought to have known of the extent of Lamont's drinking since about 4.30pm of the previous day and observed the effects of that alcohol consumption and concluded, as a matter of common sense and common experience in our society, that he ought not drive a motor vehicle, and that driving in his company could be dangerous for either or both of them. This is the matter particularised in pars (c) and (h) of the amended defence upon which I commented in [207] above. If the plaintiff forgot about Lamont's alcohol intake, or misconceived its effect, or ignored it, such might be explained by the plaintiff's own alcohol intake. In any event, responsibility for such oblivion misperception or acceptance is the plaintiff's. The plaintiff ran an obvious risk, probably because of his own alcohol intake. 1. In summary, I accept that these are the relevant causal factors: Lamont 1. riding his motorcycle whilst intoxicated, BAC 0.156g/100ml, with its effect on his ability to ride as described by Dr Perl, recited at [52] above: very substantially impaired; 2. as a result of that intoxication, either directly or indirectly, he crossed the centreline of LCER, over the central camber, passed across the path of the plaintiff, causing the two machines/riders to collide on their left hand side; 3. he was travelling a little in excess of 10kph over the speed limit, that increased speed materially contributed to the violence of the collision, increasing the potential to cause damage; 4. assuming he had arisen at 9am on 15 October 2013, he had been without sleep for 21 hours; at a minimum one can assume he had been without sleep for at least 20 hours and one cannot, therefore, exclude fatigue as a causal factor; 5. he failed to heed the auditory cue of the approach of the plaintiff's machine, which ought to have alerted him to keep left. Cooper 1. riding his motorcycle under the influence of alcohol, but, on my findings, he was not as badly affected by his alcohol consumption as was Lamont; 2. like Lamont, he had been without sleep for a number of hours, perhaps a greater number than Lamont, as he had to make a longer journey than Lamont to attend the last session of the domestic violence course at Nowra; again, his fatigue can not be excluded as a causal factor; 3. he foolishly, perhaps because of the first factor I last identified, ran the risk of riding in company with Lamont when he ought to have realised that in so doing he was running the risk of the occurrence of what actually occurred or some similar harm. 1. The fact that each of the riders was riding an uninsured and unregistered and unregistrable motorcycle is irrelevant because exactly the same accident would have occurred if both motorcycles had been registered and insured. The fact that the plaintiff was not a licensed rider is also irrelevant as he, like Lamont, was an experienced rider of the motorcycle involved in this collision. Furthermore, it must also be borne in mind that a number of objective facts suggest that the plaintiff was seeking to take care for his own safety: (a) he wore an appropriate helmet; (b) he kept to the correct side of the carriageway; (c) he was riding at a speed which most motorists would describe as "at" or "on" the speed limit. Such is to be contrasted with Lamont's actions which involved a breach of the most fundamental principle of driving in Australia: KEEP LEFT. 1. I accept, as has been submitted by the plaintiff, that the greater responsibility for the occurrence of this collision lies with Lamont. The simple fact remains that, if Lamont had kept left, this collision would not have occurred. However, one should not concentrate on that proposition as it ignores the questions of why he did not do so and how those circumstances arose. After carefully weighing the relevant causal factors, derived from the whole conduct of each of the plaintiff and Lamont, I apportion one third of the responsibility for this collision to the plaintiff and two thirds of the responsibility to Lamont. Accordingly, the plaintiff's damages are to be reduced by 33% on account of his contributory negligence. 2. I can not leave this issue without observing that perhaps the plaintiff (or his lawyers) will be disappointed with my findings concerning his level of sobriety. Be that as it may, I have done my best to do my sworn duty. I quoted MACA s138 in full at the commencement of this section of these reasons to show that Parliament has attempted to take steps to ensure that alcohol affected claimants have their damages reduced to take into account any contribution their alcohol affected behaviour made to an accident. The present plaintiff has escaped the provisions of s138(2)(a) because he was not convicted of any alcohol related offence number is s138(7). That is because of the negative BAC test, which was likely to have been flawed because of treatment afforded to the plaintiff in the six hours prior to his blood sample being taken, and, as far as "driving under the influence of alcohol" is concerned, perhaps because of an exiguity of evidence available to the police, or perhaps because of police sympathy for a very badly injured man. Nevertheless, it is the Court's duty to apply such public policy that can be discerned from a statute. In any event, the common law has been doing the same since motor vehicles first appeared on public roads. Damages (a) Non-economic loss 1. Non-economic loss is defined in MACA s3 to mean: "(a) pain and suffering; and (b) loss of amenities of life; and (c) loss of expectation of life, and (d) disfigurement." The maximum of the amount that may be awarded under the head of damages has been since 1 October 2016, $521,000: s134. At the time of addresses the maximum was $511,000. The maximum applicable is that at the date of the award of damages, the date of this judgment. Under CLA the maximum which may be awarded for non-economic loss is $605,000 since 1 October 2016. However, the schemes of the two Acts are different. Under CLA, the maximum amount may only be awarded "in a most extreme case". Under CLA, no damages may be awarded for non-economic loss unless the severity of non-economic loss is at least 15% of a most extreme case. CLA s16 contains a table which requires the court to assign to a particular case a proportion of the maximum amount which may be awarded. Between 15% and 32% there is a sliding scale commencing at 1% of the maximum. MACA, s134 merely provides a cap on the amount that may be awarded. MACA provides a statutory threshold to obtaining an award of damages for non-economic loss (a degree of permanent impairment as a result of the injury covered by the motor accident greater than 10%). As the plaintiff has been admitted to the LCS Scheme he is deemed to have achieved that threshold. Having achieved the threshold, a claimant is entitled to have his non-economic loss assessed in accordance with common law principles. If, however, that would result in the claimant being awarded more than the statutory maximum, the award must be reduced to the statutory maximum: Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199; RACQ Insurance Ltd v Motor Accidents Authority of NSW (No 2) [2014] NSWSC 1126 at [25]. 1. Before I can turn to deal with this issue, it is necessary for me to consider what would likely have been the plaintiff's future path in life had he not been involved in this collision. Consideration of the plaintiff's claim for economic loss also requires me to consider the same subject. It is to be recalled that at [133] above I pointed out that I accepted most of what the plaintiff said with reservations on some discrete issues. I have canvassed the plaintiff's pre-collision history in some detail. In 2003, when he was forced to leave school and commence treatment for drug abuse, he clearly "ran off the rails". However, he managed to complete Year 10, or its equivalent, and then to commence and complete an apprenticeship as a carpenter and, on Mr Streeter's evidence, he was a very good tradesman. Despite his continuing to use cannabis and alcohol, he had a regular job and was supporting his then de facto wife and two young children. He had interests outside his work such as karate, surfing, motor cars and trail bike riding. The plaintiff again "ran off the rails" when he learnt of Jade's infidelity. His problems with illicit drugs and alcohol were exacerbated and came to the forefront in August 2012. From 20 August onwards, he was seeking and obtained treatment to overcome what could be described as cannabis and alcohol addictions. Initially, the plaintiff's focus was on returning to work: see [28] and [30](vii) above. His focus then shifted towards his children. 2. I have described the lapse into alcohol use on 28 December 2012. That lapse led to his children being removed from the care of him and Jade: see [35] above. He returned to abstinence from alcohol and continued to make progress with his rehabilitation from his addictions/habits until the lapse into alcohol use on 15 October 2013 which led to the collision the subject of these proceedings. The plaintiff has never relapsed to using illicit drugs – I accept that. At [113] above, I made a provisional finding about whether the plaintiff would have returned to work as he stated on oath in "early 2014". I do accept that plaintiff on this issue. I accept that, but for the events of 15 and 16 October 2013, he would have remained abstinent of alcohol, completed his course and returned to work as a carpenter, subcontracting to a builder such as Mr Streeter in 2014. The plaintiff has only used alcohol once since the collision, at his wedding to Jade on 29 November 2014, which, in my assessment, is excusable behaviour. The plaintiff's lapses into alcohol use, after 20 August 2012, were on 13 October 2012, at little less than 2 months later, on 28 December 2012, 2 months and 2 weeks after his first lapse and on 15 October 2013, almost 9 months after his last lapse. The timing of the lapses indicates a growing determination not to relapse. The circumstances of the final lapse need also to be borne in mind: they were somewhat unusual, a concatenation of the plaintiff's assisting a "mate", his mate's feeling thankful, his mate's having something to celebrate, something in which he wished to share his joy, and an absence of Jade, who would perhaps have drawn to the plaintiff's attention his need to abstain, for the sake of their children. Accepting that the lapse occurred, but had the collision not occurred, I accept that the plaintiff would have regained his determination to abstain from alcohol, encouraged by Jade, so that the couple could "recover" their children. With growing maturity, the plaintiff was then 25 years old, I accept that he would have continued to abstain from alcohol and that he would have led a socially acceptable life after October 2013. 3. I return to the issue of non-economic loss. The amount to be awarded must be proportionate to the plaintiff's injuries and resulting disabilities and other consequences. In Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, the Court (Barwick CJ, Kitto and Menzies JJ) said: "11. … It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. We cannot think that the passage cited from Chulcough v. Holley (1968) 41 ALJR, at p 338 should be understood as expressing a contrary view. The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand. (at p125)" 1. This decision follows the earlier dictum of Windeyer J in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57, where his Honour said: "5. So much of the work of common law courts to-day is concerned with damages for personal injuries caused by traffic accidents that it is understandable that courts should try to produce some measure of consistency. Judges must consciously, if not avowedly, draw upon their experience of other comparable cases when considering what sum would be proper in a particular case : and appellate courts, faced with the question whether a particular sum was or was not excessive or inadequate, must, to some extent, do so too. But the problem is not susceptible of a normative solution. A tariff for various physical disabilities - the loss of a leg or an arm and so on - cannot be devised by a court. English law had abandoned the idea of fixed bots before the Norman Conquest. In theory it might seem that the most serious physical injuries should always attract the heaviest damages. Therefore it is sometimes suggested that damages given in cases of paraplegia should be regarded as at the top of a scale and used as a basis for other estimations. But that involves an erroneous hypothesis. Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same ; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious in principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables. The law insists that it be done, but can give no sure guidance on how it is to be done. Jurymen usually have only a scanty knowledge of verdicts given in other cases - certainly not enough to provide them with any pattern for comparisons : and they are not to be told of them (Waldon v. The War Office (1956) 1 All ER 109, at p 111 ). They approach the question unaided, and unfettered, by such knowledge. To say, therefore, that a jury's award of damages is one that reasonable men could not reach simply because, when compared with a standard distilled from other awards, it appears egregious, may well be unjustly to accrue the jury of a failure to perform their duty according to their oaths. I respectfully think that what is said in the recent telling judgments of the Court of Appeal in Scott v. Musial (1959) 2 QB 429 is in accordance with old principle and should be followed in this Court. (at p72)" In this State, those decisions led the position that reference to other cases in order to ascertain the general level of damages for a particular type of injury was impermissible: Moran v McMahon (1985) 3 NSWLR 700 per Priestley and McHugh JJA. However, CLA s17A provides: "17A Tariffs for damages for non-economic loss (1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings. (2) For that purpose, the parties to the proceedings or their Australian legal practitioner may bring the court's attention to awards of damages for non-economic loss in those earlier decisions. (3) This section does not alter the rules for the determination of other damages." This provision applies to litigation governed by MACA: CLA s3B(2)(c). 1. This allowed the plaintiff's Counsel to submit that the plaintiff's injuries and disabilities were close to those of "a young quadriplegic" who at common law might be awarded $600,000 and that it would be appropriate to assess the plaintiff's case in the range of $500,000 to $550,000, and that, therefore, it would be appropriate to award the plaintiff the then statutory maximum: "71. The plaintiff submits that an appropriate award for non-economic loss in this is case is the maximum permitted - $511,000. This is not to say that the plaintiff is necessarily a most extreme case (were this a CLA claim). He is not as badly injured as a young quadriplegic. However, the court would consider that a young quadriplegic might be awarded $600,000 or more at common law, with the statutory requirement to reduce that amount to be capped at $511,000. This plaintiff (effectively a double amputee, with a brain injury and sexual dysfunction) is one step down from a young quadriplegic. It is submitted that he would appropriately be assessed between $500,000 and $550,000 at common law and thus, is also awarded the maximum permissible - $511,000. 72. Although the court does not make strict comparison with Section 16 of the Civil Liability Act 2002, it is noted that $511,000 currently equates to 86% of a most extreme case. Unless the defendant is prepared to argue that the maximum at common law is less than is permitted under the CLA or unless the defendant wants to argue that there is some differing approach to proportionality in the common law than there is under the CLA, then the defendant really needs to argue that the plaintiff is less than the equivalent of 86% of a most extreme case in order to argue that he should be awarded less than $511,000. 73. If, as is anticipated, the defendant wants to argue that the plaintiff should only be awarded $400,000 for general damages, then the Nominal Defendant should be encouraged to explain how, on a Civil Liability Act assessment, the plaintiff would equate to less than 70% of a most extreme case. The defendant might then also like to explain how such an argument sits alongside the objectives of the MAC Act to preserve full compensation for the most severely injured." 1. The defendant's submissions were as anticipated: "83. It is not suggested that the Plaintiff has suffered anything other than significant injuries and disabilities. The award for this head of damage will obviously be substantial. That said, any award should be less than the statutory maximum and somewhere in the order of $350,000 to $400,000 in light of, inter alia, the following factors: (a) As emerged during cross-examination, the Plaintiff was far more active than as suggested during his evidence-in-chief. In particular, the Plaintiff has bought and sold a number of motor vehicles following his accident and has also worked on some of these vehicles: see T196 to T215 and Ex 1 to Ex 8. (b) The Plaintiff has been able to take his children to the beach, has been provided with a second prosthesis that he can wear into the ocean, and can go into the ocean up to the level of his nipples: see T169. (c) The Plaintiff not only spends time with his children but also spends time with his dogs and manages to potter around in his garden: T172.22 to 172.34. (d) The Plaintiff currently has four dogs that he and his wife look after: T134.9. (e) The Plaintiff has not suffered any organic brain damage as a result of the accident. (f) The Plaintiff has visited his karate centre following the accident (once for his own purposes) and numerous times to watch his children (g) The Plaintiff is able to drive a motor vehicle, meaning that he maintains at least some level of independence despite the nature of his injuries." 1. It is necessary to recapitulate the plaintiff's injuries and disabilities: 1. Left leg: amputation of the leg below the knee has been practiced, leaving 10 cms of the tibia. There was also a fracture of the left femur which required repair: see [81] above. Below knee prostheses have been provided: see [93] and [97] above. The plaintiff has continuing symptoms: 1. intermittently his stump has infections and a breaking down of the skin due to friction with the prosthesis leading to pain: T166.07–T166.16; 2. his range of knee movements has been reduced to 90% with crepitus: T166.42–T167.03; 3. in Court, the plaintiff walked with a very bad limp, but that ought to be correctible with a good-fitting prosthesis and appropriate training by a rehabilitation physiotherapist; T166.23–T166.30, T180.17–T180.26. 4. the plaintiff experiences phantom pain in the missing limb: T168.19; 1. Low back pain: This arises as a consequence of the plaintiff's altered gait resulting from the left leg amputation; he experiences low back pain every night: T168.01 2. Left arm: I summarised the injuries to the plaintiff's left arm at [80] above; surgery was practiced on 16 October 2013 – see [81] above; on 18 October 2013 – see [82] above; on 21 and 24 November 2013 – see [83] above; and on the eleven occasions outlined between 17 April and 6 August 2014 outlined in [89] above; the plaintiff has been left with an insensate, flail arm for which, at the current time, the only surgical option is transhumeral amputation; nevertheless there are symptoms above the elbow: 1. the left shoulder joint is irregular and appears to have sagged and be wasted: T158.32–T159.05; 2. there is pain on inward rotation of the shoulder; T159.14–T159.21; 3. he has "severe nerve pain" in the musculature of the upper arm: T159.25–T159.50; 4. there is very ugly scarring of the plaintiff's forearm; there is wasting of the musculature (T160.37); the scarring can be seen in exhibit E, page 12, photographs 16 and 17 taken when the plaintiff was in SGH, but they have now resumed a more natural colour: T160.43–T161.24; 5. there is residual scarring of the other portions of the plaintiff's arm, extending onto his chest: T161.28–162.30; as well as the loss of the two distal phalanges of the little finger – see [81] above and T162.37; 1. Abdominal injuries: the plaintiff still has a large hernia which, at the time of the hearing, still required surgical repair: see [98] above; his colostomy has now been reversed and he now has "pretty much normal control of [his] bowel … 99% of the time" (see [99] above) but the inference to be drawn from his evidence on this issue is that there is occasionally some leakage of faeces per anum; 2. Interference with sexual function: I outlined the problems the plaintiff was experiencing with his penis, and their cause, at [92] above and at [95] but the surgery practised by Dr Lynch was unsuccessful; this has greatly interfered with the plaintiff's sexual function: 1. prior to the collision, the plaintiff and Jade had sexual intercourse "roughly once a day" (T128.44) reaching orgasm (T129.06), experiencing no difficulties using various sexual positions (T129.16), an activity that he enjoyed (T128.49); earlier the plaintiff had been prescribed Viagra to counter the effects of medication prescribed to him but had ceased taking Viagra prior to the collision (T128.46); 2. since the collision, the plaintiff and Jade have attempted sexual intercourse "every two to three days" (T165.01); the plaintiff uses "a lot of medication to help [him] get an erection" (T165.03–T165.11); the plaintiff's evidence then continued thus: "Q. And do you experience any difficulty with an erection in terms of maintaining penetration during intercourse? A. Yes. Q. What's the difficulty? A. I, sometimes I don't get a proper erection and, due to my penis being sucked into my body, it's semi erect and not very long and pointing to the side and it's just not functional for sex. Yeah. Q. Does the combination of your injuries restrict the positions you were able to use during sex? A. Yes. Q. Is the majority of the sex that you now have with you flat on your back? A. Yes. Q. Are you able to with any comfort or enthusiasm maintain, for example, a standard missionary position where you would be on top? A. Not comfortably and trying to do a different position I fell off the bed and smacked my head on the floor one time. Q. Do you have the same degree of sensation in your penis that you had before the accident? A. Not at all. Q. What's changed? A. I severed the nerves to my penis in this accident. I believe it was when my pelvis shattered. So I generally can't feel it very well at all. Q. Is there any pleasant sensation in sliding in and out during intercourse? A. No, I believe it's more mental. Q. And do you experience an orgasm? A. It's a difficult question because I don't experience an orgasm like I used to, but I do have some sort of sensation but it's not a really good feeling. Like it's, it's hard to explain but no generally. Q. Do you gain much pleasure out of having sex anymore? A. No. Q. How does that affect how you feel about yourself? A. Not, not very high. It's pretty embarrassing. It's pretty demeaning, you know, it's not, yeah, it's not very nice." I have no hesitation in accepting that evidence; 1. Cognitive impairment: as I explained earlier, between [101] and [106], I do not accept that the plaintiff suffered a primary brain injury; However, I do accept the plaintiff has suffered some secondary cognitive impairment and that the plaintiff suffers the ongoing problems contained in the opinion of Dr Langeluddecke quoted in [104] above; the plaintiff's evidence, consistent with the Doctor's opinion, can be found at T156.40–T158.05; 2. Psychological health: I discussed this at [108] above, it is also to be recalled that pre-collision the plaintiff had a very good physique of which he was understandably proud (see pre injury photographs, exhibit QQ) maintained by his work as a carpenter and exercising with weights in his gymnasium in his garage (T300.21), which is to be compared with this evidence: "Q. In terms of trying to keep up your health and fitness, how is your fitness now, compared with your fitness before this accident? A. My fitness before this accident was incredible. Q. And now? A. It's - I don't really have any fitness. Q. I appreciate a straight comparison of weight becomes a little problematic when you're missing a leg but in terms of something like the size of trouser that you take and you're still wearing the same sized trousers that you were before the accident? A. No, I've, I've put on weight. Q. Whereabouts have you put the weight on? A. In my belly and my bum, yeah, mainly my belly. Q. How do you feel about the way you look now? A. I can't stand how I look now." 1. Pain levels: as can be expected, vary from day to day; the plaintiff takes prescribed pain-killing medication daily; the plaintiff has good and bad days or, as he described them, better days and worse days, sometimes the good periods can extend for three days as do the bad periods (T169.01); as could also be expected, the pain levels vary according to the plaintiff's level of activity and the weather. 1. The plaintiff has had a better outcome than most paraplegics and any quadriplegic. On one hand: (a) he has regained control of his bladder; (b) he has regained 99% of the natural control of his bowel; (c) he is able to ambulate, and his ability should be increased with the provision of a well-fitting prosthesis and suitable training; when examined by Professor Michael Cousins, pain specialist on or before 15 October 2014, the plaintiff was limited in his walking to 500 metres with his then prosthesis – this ability should have increased since, and ought to increase since the hearing; (d) he is able to drive an automatic motor vehicle, with a knob attached to the steering wheel; (e) he still has some sexual function, as discussed above, but a substantial reduction in sexual function sounds heavily in damages: Knight v GIO of NSW [1995] NSWCA 246 per Kirby P (as he then was); however, if the plaintiff and Jade decide to have further children, that can be done naturally: there is no interference with the plaintiff's fertility, despite his nasty scrotal injury. However, on the other hand: (f) the plaintiff has no use of his left arm and, unlike a paraplegic, cannot use a keyboard or play games which require the use of two hands, in particular, two thumbs; (g) unlike most quadriplegics and paraplegics, he has undergone multiple surgical procedures, most under general anaesthesia, and further surgery was contemplated at the hearing for both the abdominal hernia and the left arm, although I expect that amputation of the left arm will be delayed for as long as possible in the hope that there be a new treatment developed or with a view to new developments in human robotics; (h) unlike most quadriplegics and paraplegics, whose non-economic loss to a large extent reflects the loss of amenities of life, but have no real (as distinct to phantom) pain, the plaintiff has both real and phantom pain on an ongoing basis and there is nothing to say that such pain will not persist indefinitely; one must also recall what the plaintiff said of his experience of pain at SGH, which is recorded in [85] above; (i) many paraplegics do not have the disfigurement the plaintiff has: the scarring on his left arm, which, if amputated, would also cause disfigurement; the disfigurement caused by his abdominal hernia – I do not know whether it will ever be capable of successful surgical repair with good cosmetic outcome; the disfigurement caused by the loss of the left lower leg. 1. The defendant concentrated its submissions on what it said the plaintiff could do: see [225] above. I make the following observations on what the defendant raised: (a) I dealt with these issues at [123] and [126] above; the trading in motor vehicles largely resulted from the effects of the collision on the plaintiffs ability to drive and his superannuation payout; his "work" on motor vehicles could be described as "tinkering"; (b) this is so, but a prosthetic leg will not float and the plaintiff can not, for example, teach his children how to body surf, let alone ride a surfboard; his ability in this area is restricted; (c) the plaintiff no longer has his children residing with him, but that might well change; at the hearing he only had contact with his children on a restricted basis; the plaintiff has to spend his time somehow and that includes watching television as well as pottering in his garden: he can prune his potted trees with secateurs, but cannot lift anything heavy (T172.27), whilst seated in his wheelchair, and "simple, basic things" in the garden, and he also spends time with his dogs; (d) the plaintiff and Jade have four "rescue dogs", i.e. dogs taken from a pound or shelter, not thoroughbreds: T134.15; (e) I agree, but see [2206](f); (f) see [127]; (g) I agree, see [228](d). 1. A further consideration is the plaintiff's age. He was 25 years old at the time of the collision, 28 years old at the hearing and turned 29 years old just prior to the delivery of this judgment. His life expectancy is currently 56.20 years (Medium Life Expectancies, Australia, 2015, accepted in principle in Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498). The plaintiff spent some time addressing me on the significance of Reece v Reece [1994] NSWCA 259; (1994) 19 MVR 103 and Varga v Galea [2011] NSWCA 76. In the latter case, McColl JA (with whom Beazley JA and Handley AJA agreed) said this: "72. Reece v Reece states the uncontroversial proposition that the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed). 73. Age, however, is only one of the numerous matters the Court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows: " 'non-economic loss' means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement." 74. The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent: "Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables." As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage "reflected the previous law"." As I have had cause to observe in many earlier judgments, the young can be more resilient, more adaptable than the old and learn more easily to adapt to their injured state and to live with their disabilities. An example of this would be a professional man, nearing retirement whose recreation has always been golf. He and his wife sell the family home ("downsizing") and purchase a town house adjoining a beautiful golf course in the expectation that, on retirement, the passionate golfer will be able to play a game almost daily. He suffers a nasty leg and back injury which prevents him from playing golf again. His retirement plan is ruined, his expectations of post work leisure blasted and he may have difficulty coping and readjusting to his injured state. A man 40 years his junior might suffer the same injuries but find a new recreation, adjust to his disability and develop different plans for his future to cope with his disability. There might be little difference in their general damages. However, the present plaintiff suffered, as I said at the commencement of these reasons, "complex and life threatening injuries" – Professor Fearnside's assessment, or, as the same expert observed in his opinion, "catastrophic injuries which have left him severely and permanently impaired and consequently disabled." The plaintiff has lived with his injuries and disabilities for three and a quarter years now and will live with them for another 56 years. This must place the plaintiff at the upper end of any scale. 1. Bearing all these things in mind and the submissions of Counsel, and applying the common law principles, I have formed the view that the appropriate sum to allow the plaintiff for non-economic loss is $500,000. As that is less than the current statutory maximum, it does not need to be reduced. (b) Past economic loss 1. The plaintiff's Schedule of Damages (as at 30 May 2016), MFI 6, makes this claim: "From 1 July 2014 to present AWE for construction workers ($1,704.30 gross p/w) $1,270 net p/w x 101 weeks $128,270" Despite the plaintiff's evidence that he intended to return to work in "early 2014", the plaintiff's actual claim only commences on 1 July 2014. During addresses, I suggested to Mr Stone SC a different approach to that given above. As at 25 May 2015, Mr Streeter was paying his sub-contractor carpenter $350 per day (exhibit SS par 21). At the time of giving evidence, he was paying his sub-contractor $380 per day (T351.24). From those figures I proposed that is 2014, Mr Streeter would have been paying $330 per day. At T471.46 I said this: "If you average out the work as a subcontractor, not working when there is no demand for work, not working when it rains, et cetera, you might be looking at, say, 26 full weeks per annum. So we look at $330 multiplied … by 5 to give you a weekly amount, multiplied by 26, that gives you $42,900 per annum." On the same basis $350 pw gives a total of $45,500 per annum gross and $380 pw gives a total of $49,400 per annum gross. The figure of $330 pw for 26 weeks per annum provides an average of $825 pw gross. Ex J tells me that from 1 July 2013 to his stopping work in August 2012, the plaintiff earned as a subcontractor carpenter $6, 286 net, before tax. This would have been when working for Mr Streeter. If the period were 7 weeks, that indicates a weekly average of $898; if the period were 8 weeks, that indicates a weekly average of $785.75. The income over this period could include income for work done prior to 1 July 2012. 1. If I allow $825 pw gross for the financial year 1 July 2014 to 30 June 2015, I am allowing $709.80 pw net (T474.19). That gives an annual figure of $36,910 (rounded up by 40 cents). 2. For the financial year commencing on 1 July 2015, I proposed to allow $350 per day, for 5 days per week, for 39 weeks per annum. That monetary sum was the figure Mr Streeter was paying as at 25 May 2015. The increase in days worked per annum represents a gradual return to work as the plaintiff re-established himself in his industry. $350 per day for 5 days for 39 weeks per year gives a total of $68,250 which provides an average of $1,312.50 pw which I rounded off at $1200 pw. That is a gross figure. The net figure is $949.20 (T474.25–T474.33). For 52 weeks that amounts to $49,358.40, which I round up to $49,360. 3. For the period 1 July 2016 to 20 January 2017 (29 weeks), I accept that the plaintiff would have been earning average weekly earnings in the construction industry i.e. $1,270 pw net as claimed. The totally for this period is $36,830. 4. The total for past economic loss ($36,910 + $49,360 + $36,830) is $123,100. The plaintiff has not earned any wages or other income during this period. I do not categorise social security payments as "earnings". I shall discuss the question of residual earning capacity when discussing future economic loss. (c) Past superannuation 1. The plaintiff claims 11% of past economic loss. The rate is not controversial. The plaintiff has, however, in seeking loss of future superannuation, discounted the claim by 50% because of the plaintiff's prospects of self-employment. In my view, the same discount ought be made for past superannuation. The plaintiff had entered self-employment when working for Mr Streeter. That is what he intended to do prior to learning of Jade's infidelity. Accordingly, I allow ($123,100 @ 11%) ÷ 2, giving a total of $6,770 (rounded down). (d) Future economic loss 1. According to the plaintiff's Schedule of Damages, he claims the average weekly earnings for construction workers ($1,704.30 pw gross / $1,270 pw net) for his future working life (till 67 years) less 15% for the vicissitudes of life ("the usual discount"). At the hearing, the appropriate multiplier was 909.9. Since the plaintiff has now turned 29 years old, the multiplier is 902.0. This formulation provides a total of $973,709, which I round off at $973,710. 2. The defendant's submission on this issue is: "89. Insofar as future loss of earning capacity is concerned, the Plaintiff's capacity (irrespective of the accident) is necessarily comprised by his well documented and long-standing forensic/criminal history, mental health problems, anger problems, and cannabis and alcohol dependence. 90. What is more, to the extent that the Plaintiff's claim for future loss of earning capacity is based on his inability to now run his own carpentry business, it must be remembered that the Plaintiff's business was only in its infancy and therefore faced the usual risks that any new business would encounter. 91. Once the Plaintiff's pre-existing problems are taken into account, together with the fact that the Plaintiff still has a residual earning capacity (albeit limited) and had never earned $1,270.00 net per week prior to the accident, it is submitted that a future loss of $400.00 net per week is appropriate. Further, it would also be appropriate to apply an increased reduction for vicissitudes of 30% which produces a future loss of $254,772.00" I do not share the defendant's pessimism about the plaintiff's future, which follows upon my analysis of the plaintiff's past and likely future. By allowing only $400 pw net and applying 30% for the vicissitudes of life, it appears to me that the defendant is engaged in double discounting. He was earning either $898 pw or $785.75 pw net before tax when working for Mr Streeter – see [231] above. Mr Streeter was happy to re-engage him. If one halves the average weekly income because of "existential" problems, there is no need to apply a 30% discount. I accept that the plaintiff had not earned $1,270 net pw prior to the collision. He had only completed his apprenticeship on 8 January 2012 (see [19] above). He only had 7 months experience as a carpenter when he "ran off the rails" in August 2012. I have allowed the plaintiff two years (1 July 2014 to 30 June 2016) to re-establish himself in the building industry and to commence demanding average weekly earnings in that industry. I do not believe this to be unrealistic, especially considering Mr Streeter's evidence about his competence. 1. The remaining question is whether the plaintiff has a residual earning capacity. Firstly, one should again consider what I held at [121] above. The plaintiff did not know of any work he could do and the defendant never suggested to him doing any work outside of his trade. Between [114] and [120] I canvassed the evidence concerning the plaintiff's returning to work in his trade. I am satisfied that he is not able to do so, practically. I am not persuaded that the plaintiff has a residual earning capacity. 2. The legal onus of proof of this head of damage always lies on the plaintiff. However, there can be a shifting of the evidentiary onus of proof. In Kallouf v Middis [2008] NSWCA 61, the Court (McColl JA and Hall J) said: "[52] In Arthur Robinson [(Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649] (at 657) Barwick CJ observed that lost earning capacity 'ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate', a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) in Morgan v Costello [2004] WASCA 260 (at [99]) as supporting the proposition that 'the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity.' [53] The relative responsibility of the parties for adducing evidence going to the issue of residual earning capacity was discussed in Linsell v Robson [1976] 1 NSWLR 249 (at 254 - 255) by Glass JA who stated: 'I should like to recapitulate what I said in Davies v Lumsden ... concerning the evidentiary responsibility in cases of this kind of the real defendant, viz the insurer, and the risks it runs in pursuing its policy of testimonial inactivity. The plaintiff, of course, has the ultimate burden of proving the extent of his loss. The plaintiff tendered evidence of the disabilities which severely restricted his earning capacity, the failures which he encountered in his attempts to get work. The evidence of attempts was slight, but whether the proved record of failure is extensive or not, the plaintiff is trying to prove a negative. The real defendant, who is known to have a virtual monopoly of the third party insurance business in this State, must have resources from which evidence can be produced to show what sort of employment is within the residual capacity of an injured litigant, and what sum it is likely to produce. It has, in my view, an evidentiary burden requiring it to adduce material of this kind. If it elects to call no evidence and prefers to rely on argument, it runs the risk that the plaintiff's meagre materials will be held sufficient to support a conclusion, which in this case the trial judge clearly reached, viz that the plaintiff retained only a severely restricted earning capacity, the exercise of which was unlikely to produce a large income.' [54] Reynolds JA (with whom Hope JA agreed) made observations to like effect in Yammine v Kalwy [1979] 2 NSWLR 151 (at 155) (approved by Heydon JA in [State of New South Wales v]Moss [[2000] NSWCA 133; (2000) NSWLR 536] (at [69])) that: '[I]n seeking to quantify his damages [for lost earning capacity] a plaintiff could be well advised to offer such evidence [as to the level of wages he might earn, notwithstanding his handicap]; and likewise a defendant, in seeking to cut down the damage, might similarly be well advised to tender such evidence; neither in the absence of such evidence, could complain, to the same effect, at any quantification arrived at.' [55] In the final analysis, however, at common law the onus rests on the plaintiff to prove he is incapable of undertaking employment which medical evidence demonstrated he was capable of undertaking: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 (at 132 133) per Sugarman JA: see also McCracken v Melbourne Storm Rugby League Football Club Limited[2007] NSWCA 353 (at [64 ff] per Ipp JA (Beazley and Basten JJA agreeing)). [56] This position is not, in our view, displaced by s 126 [of MACA], albeit that s 126(1) imposes a requirement on the plaintiff to satisfy the Court 'that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury'. It is, of course, incumbent on the plaintiff in the first place to demonstrate lost earning capacity." In Mead v Kerney [2012] NSWCA 215, Macfarlan JA (with whom McColl JA and Sackville AJA agreed) said at [37]: "37. … As I have pointed out, the evidence demonstrated that the respondent had tried unsuccessfully to obtain employment for nearly four years prior to the trial. The evidence at the trial offered no reason to suggest that the position would be any different in the future. The appellants did not identify any practical job opportunities that were available to the respondent in the past of which he failed to avail himself, or any such opportunities that might arise in the future. In these circumstances, to attribute a percentage chance to the prospect of the respondent obtaining a job in the future would involve mere speculation." 1. The plaintiff was clearly at all material times totally incapacitated for his pre-collision occupation and effectively totally incapacitated for any job in the building industry. He did not have and does not have the capital, or business acumen, to set himself up in a business where he could use his knowledge as a carpenter/builder without there being any demand on him to perform any physical work, which includes inspection. I canvassed the medical opinions as to the plaintiff's employability at [109] above. The defendant adduced no medical evidence. There is no positive evidence as to what the plaintiff could do now or might be able to do in the future with his continuing disabilities. In my view, the evidentiary onus has fallen on the defendant which did not cause the plaintiff to be cross-examined about work outside his industry or adduce any evidence as to what jobs might be open to a man with his disabilities, even outside the area in which he might be thought reasonably to be seeking work. I therefore have no hesitation in awarding to the plaintiff the sum determined at [237] above. (e) Future superannuation 1. The plaintiff claims, in his Schedule of Damages, 14% of his future economic loss less 50% for the prospects of self-employment. I originally thought I ought reduce the claim by 67% to account for the fact that the longer the plaintiff stayed in the building industry, the greater became the prospect of self-employment. However, the plaintiff might have been able to form his own company and that company might have provided to him superannuation because it employed him: see [112] above. Accordingly, I allow the plaintiffs claim ($973,710 @ 14%) ÷ 2 is $68,160 (rounded up). (f) Other heads of damage 1. No other heads of damage were claimed, no doubt because of the plaintiff's admission to the LCS Scheme and MACA s141A. (g) Summary and total 1. The heads of damage allowed are: (a) Non economic loss $ 500.000 (b) Past economic loss $ 123,100 (c) Past superannuation $ 6,770 (d) Future economic loss $ 973,710 (e) Future superannuation $ 68,160 Total: $1,671,740 Two thirds of that sum is: $1,114,493 Order 1. I give verdict and judgment for the plaintiff against the defendant for $1,114,493. I shall hear the parties on any question concerning costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2017