Melissa Johnstone v Maxwell J Whitten and the Australian Capital Territory [1997] ACTSC 89 (12 November 1997)

SUPREME COURT OF THE ACT

MELISSA JOHNSTONE v MAXWELL J WHITTEN and THE AUSTRALIAN CAPITAL TERRITORY
No. SC 176 of 1992
Number of pages - 15
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

NEGLIGENCE - Motor Vehicle Accident - Single car collision - 2 Occupants in vehicle - Defendant was owner of vehicle which was stolen - Statutory presumption of agency - Whether plaintiff passenger in or driver of vehicle - Stolen vehicle - Joint illegal enterprise - Plaintiff intoxicated - Whether plaintiff aware car stolen -volenti non fit injuria - Whether other occupant was driver - Whether other occupant was intoxicated - Whether plaintiff knew other occupant was intoxicated - volenti non fit injuria - Contributory negligence - No Issue of Principle.

DAMAGES - Assessment - Personal Injury - Motor Vehicle Accident - Head injuries - Organic brain damage - Disabling cognitive dysfunction - Marked impairment of short term memory - Facial scarring - Chronic depressive illness - Very low self esteem - Soft tissue injury to neck and low back - No Issue of Principle.

HEARING

CANBERRA, 19 and 20 August and 24 October 1997(hearing), 12 November 1997 (decision)

12:11:1997

Appearances

Counsel for the Plaintiff: Mr R Williams QC & Mr F G Parker

Instructing Solicitors: Gary Robb & Associates

Counsel for the Defendant: Mr P J Deakin QC

Instructing Solicitors: Abbott Tout Harper Blain

Counsel for the Third Party: Mr H Jorgensen

Instructing Solicitors: ACT Government Solicitor

ORDER

Order:

1. Judgment be entered for the plaintiff in the sum of $186,471.66.

2. The third party pay the plaintiff's and defendant's costs of the resumed hearing on 24 October 1997.

3. Otherwise, the defendant pay the plaintiff's costs.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries suffered by the plaintiff in a motor vehicle accident which occurred in the early hours of the morning of Saturday 26 September 1987. The plaintiff at the time was a young woman of 17, a year 12 student at Narrabundah College. She spent the previous Friday evening at two bars in Canberra, and consumed a considerable amount of alcohol in the course of the evening. At some time in the early hours of Saturday morning she left a bar in the city, and says that she got into the passenger seat of a Volkswagen sedan. This vehicle was, at around 3.30 am, involved in a single vehicle accident in Flinders Way, Red Hill, in the Australian Capital Territory, when it left the road and rolled, as a result of excessive speed. The plaintiff was found at the scene by ambulance officers with severe head injuries, and conveyed to Royal Canberra Hospital. The motor vehicle had been reported to police as being stolen at about 3 am that morning. No other person was found at the scene.

The plaintiff's case is that she accepted a lift home from a Mr Currie. She did not know that the motor vehicle had been stolen. She brings this action against the owner of the motor vehicle pursuant to s.66 of the Motor Traffic Act 1936 which provides that the driver of a motor vehicle is presumed to be the agent of the owner, even where that person was not driving the vehicle with the consent of the owner, for the purposes of personal injuries claims. The plaintiff says that she suffered injuries as a result of the negligence of Mr Currie, who was the driver of the vehicle, and brings the action against the owner pursuant to the Act.

The defendant denies liability on two grounds. First, it says that the plaintiff was herself the driver of the vehicle, or in any event she has not established to the requisite standard, namely the balance of probabilities, that she was the passenger. In the alternative, and accepting that Mr Currie was the driver, the defendant says that the plaintiff and Mr Currie were involved in a joint illegal enterprise, and that accordingly, pursuant to the principles laid down by the High Court in Gala v Preston [1991] HCA 18; (1990) 172 CLR 243, she cannot recover damages against the defendant. Defences of voluntary assumption of risk and contributory negligence are also raised.

At the conclusion of the two days of hearing of this matter in August 1997 I was advised that agreement had not been reached on out of pocket expenses, but that these figures would be agreed, and I gave the parties leave to provide these figures in writing. In fact a substantial issue arose between the defendant and the Australian Capital Territory as the operator of the hospital which provided treatment to the plaintiff concerning the proper calculation of the plaintiff's hospital bill. Despite considerable negotiation this could not be resolved, and on 24 October the matter was again listed before me. At that hearing I ordered the Territory joined as a necessary party.

That the accident occurred as a result of the negligence of the driver is not in question. The issues for determination are accordingly who was the driver, and was the plaintiff involved in a joint illegal enterprise. The burden of establishing these facts lies on different parties - it is for the plaintiff to establish, on the balance of probabilities, that Mr Currie was driving the car at the time of the accident. Without this, there is no cause of action. If this be established, the defendant bears the onus of establishing, on the balance of probabilities, that the plaintiff was involved in a joint illegal enterprise, if the defendant is to succeed in establishing a Gala v Preston defence. Counsel for the plaintiff, correctly in my view, urged that I should approach the process of fact finding in this matter with a clear understanding of the respective burdens of proof in the matter.

The plaintiff was able to give only limited evidence of the events of the night of the accident. She recalls going by bus into the city some time after about 7pm, and going to the bar at the Australian National University, where a number of her friends from Narrabundah college were celebrating some birthdays. The plaintiff says that she became friendly with a barman, and consumed a number of free drinks, including more than 5 schooners of beer and 2 or 3 whiskies. Some time around 11 pm the plaintiff recalls leaving in the company of Ian Currie, who was also a student at Narrabundah College whom she had known for some 9 months and walking to the Manhattan Club in Civic, a bar and disco. The plaintiff says that she had seen Mr Currie in the group earlier at the ANU bar, but she was not with him. When she left she says that she was pretty drunk.

The plaintiff says that she went up the stairs of the Manhattan Club with Mr Currie, and then met up with other friends. She says that she had more drinks and danced. She says that she was not drinking or dancing with Mr Currie. She was feeling very drunk and was sick in the ladies toilet. She then walked down the stairs to the lane way and car park at the back of the club. She had no money and no plan as to how to get home. The plaintiff says that Mr Currie offered her a lift home, and she recalls him opening the passenger door of a Volkswagen from the inside, and getting in to the car. She says she has no recall beyond this point until some weeks later at the Royal Canberra Hospital.

This is the only sworn evidence surrounding the accident. Counsel for the plaintiff says that this is sufficient to establish, on the balance of probabilities, that Mr Currie was driving the car when it left the road and lost control some time later. I think that this is so, absent any other material. It is important to set this reasoning process out in this way because the material which the defendant urges me to have regard to comprises hearsay statements by Mr Currie, which I ruled admissible over the objections of counsel for the plaintiff. If I was wrong in so ruling, the only evidence would be the sworn evidence of the plaintiff, and this would, in my opinion, be sufficient in the absence of any other material to establish that Mr Currie was driving the vehicle.

The only other person who could give direct evidence as to the events of the evening was Mr Currie. Evidence was admitted that Mr Currie was convicted of illegal use of the motor vehicle involved in this incident, and that he had at that time a long record of crimes of dishonesty. He had served terms of imprisonment in relation to offences of dishonesty. This is clearly relevant to the weight I might give to any statement made by Mr Currie.

There were three statements which the defendant sought to have admitted from Mr Currie. Two of these comprised statements made by Mr Currie to Senior Constable Dubickas. The third was a statement made to a solicitor who was at the time acting for the plaintiff. The statements made to Constable Dubickas were not in the form of a signed record of interview, rather they are notes made by the Constable and recorded in his records. The statement to the plaintiff's solicitor was signed by Mr Currie. The statements are contradictory. Mr Currie first told Constable Dubickas that he originally drove the stolen vehicle, but that he later let the plaintiff drive, and that she was driving at the time of the accident. In the signed statement he says that he was the driver at all times, and that he told the police that the plaintiff was driving at the time of the accident because he was concerned that he would face charges relating to the accident, and that as he had other outstanding matters it would be better if the plaintiff was held responsible for the driving. In the third statement he again says that the plaintiff was the driver at the time of the accident.

While counsel for the plaintiff maintains that none of these statements should be admissible in any event, he submits that, even if they are properly before me, they are in such a form and from a person of such clear poor character that it would be unsatisfactory for me to rely on them to form a view of the facts contrary to the sworn testimony of the plaintiff. These submissions are of some considerable force, and I will return to this aspect when considering the question of the plaintiff's involvement in the theft of the motor vehicle. In relation to the question of who was driving the vehicle, there is great difficulty in placing any reliance on differing versions given by a person with a record of dishonesty in circumstances where there is no opportunity to cross examine Mr Currie. Of the three versions, the most persuasive, on its face , is the signed record which supports the plaintiff's case that Mr Currie was the driver. This is in the nature of an admission against his own interest, which gives it some added veracity. Against this, however, is the fact that before and after this statement was made, Mr Currie told Constable Dubickas that the plaintiff was driving the motor car.

The plaintiff gave sworn evidence that she could not then, and could not now, drive a manual car. There was evidence that the vehicle in question was a manual car. The plaintiff told Constable Dubickas when he interviewed her in hospital a week after the accident that Mr Currie was the driver. When he put it to her that Mr Currie claimed that she was driving, and asked her what she had to say, her response was "nothing". I am not prepared to draw inferences from this. The plaintiff had received very substantial head injuries and had been under general anaesthetic for major reconstructive surgery days before this interview. The response is on its face consistent with her claim that Mr Currie was driving. She now has no recollection of this conversation. She was also asked by Mr Dubickas why she was not the driver, and she replied that she didn't have a licence. When asked whether she had ever driven, she said she had "with her parents at the back of Fyshwick". She now has no recollection of this statement, or whether she had ever had such an experience.

Taking into account all of the evidence, I am satisfied, on the balance of probabilities, that Mr Currie was driving the vehicle at the time of the accident. I would have reached this view if none of the Currie statements had been received into evidence. Having received them into evidence, and even acknowledging the difficulty with the contradictory nature of the statements, I am of the opinion that the version with the greatest veracity is that version which in any event supports the finding of fact in favour of the plaintiff which I have made, that is to say, I am satisfied that the plaintiff has established that it is more likely than not that the vehicle was driven by Mr Currie. The burden of proof placed on the plaintiff has been discharged.

The defendant sets out a number of defences. Where a defendant in a negligence action seeks to set up a defence, the burden of establishing the facts necessary to sustain the defence is placed on the defendant. That is to say, if the defendant wishes to rely on the principle of Gala v Preston [1991] HCA 18; (1996) 172 CLR 243, that no cause of action lies in negligence where the plaintiff and the defendant (through the equivalent deemed agency provision to s.66 of the Motor Traffic Act) are involved in an illegal joint enterprise involving the theft and illegal use of a motor vehicle.

Illegality per se does not deny the existence of a duty of care (Heywood v Municipal Tramways Trust (SA) [1938] HCA 35; (1938) 60 CLR 438). However, where a plaintiff and a defendant are engaged in a joint illegal enterprise, a court may find that there is no relevant duty of care between them. There remains some difference of views in appellate courts as to precisely why this is so. In Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397, the plaintiff and defendant assaulted and robbed the owner of a motor vehicle, and then unlawfully took the vehicle. The plaintiff was injured when the vehicle rolled due to the defendant's careless driving. The Court held unanimously that the plaintiff could not recover, although, as Mason CJ, Deane Gaudron and McHugh JJ note in Gala v Preston at 249, the ratio is not altogether clear. Windeyer J in Smith v Jenkins said (at 422)

"If two or more persons participate in the commission of a crime, each takes the risk of the negligence of the other or others in the actual performance of the criminal act. That formulation 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. How it be analysed and explained matters not."

It is clear that not all illegal joint enterprises will have this consequence. A joint enterprise carried out in breach of certain safety regulations will not negate a duty of care (Progress and Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651). I am satisfied, however, that Gala v Preston is authority for the proposition that where a plaintiff is injured as a result of the negligence of a person in driving a motor vehicle, the plaintiff will not recover if the plaintiff and the defendant were jointly involved in the theft and illegal use of that motor vehicle. That is to say, the fact of such involvement transforms the relationship between the driver and that plaintiff passenger into a special or different class or category of relationship where a different standard of care applies.

It is clear from the decision of the majority in Gala v Preston (at 254) that

"...the onus of establishing the existence of facts giving rise to a relationship of such a special or different category under which it would be unreasonable to fix the duty of care owed by a driver by reference to the ordinary standard of care lies on the party who asserts it. Likewise, the onus lies on the party who asserts that, by reason of special and exceptional facts, the ordinary relationship of a driver towards a passenger is transformed into one which lacks the requisite relationship of proximity to give rise to a relevant duty of care."

In that case this issue presented no difficulty, as both the plaintiff and defendant had pleaded guilty to illegal use of a motor vehicle. In the present case, the defendant must establish, on the balance of probabilities, that the plaintiff was involved in a joint illegal enterprise.

Such a finding would not be open to me on the sworn evidence before me. The plaintiff's evidence is that she accepted a lift from Mr Currie. She says that she did not know that the car was stolen. In cross examination she conceded that she did not know that Mr Currie owned a car, and that she had walked with Mr Currie from the ANU bar to the Manhattan Club in Civic, where the car appeared. It would not of course be safe from this to draw the inference that it is more likely than not that the plaintiff knew that Mr Currie had stolen the car. It was put to the plaintiff that Mr Currie had had a number of court appearances that year for illegal use of motor vehicles, and that the plaintiff would have been aware of his reputation. This may, if supported perhaps by the evidence of other students as to Mr Currie's reputation, have taken the matter further, but no such evidence was produced, and the plaintiff said that Mr Currie was merely an acquaintance and a fellow student, and that she had no knowledge of his involvement in car stealing or of his reputation in that regard.

The only evidence which can support the defendant's case is the statement taken by a former solicitor for the plaintiff from Mr Currie. In that statement, in which Mr Currie says that he was driving the vehicle at the time of the incident, Mr Currie says that he and the plaintiff agreed jointly to steal a car in order that he could drive the plaintiff home, and says that the plaintiff assisted him by providing him with her nail file to break in to the vehicle.

The plaintiff denied this on oath, and further stated that she never carried a nail file with her, now or at that time. I am thus confronted with the sworn evidence of the plaintiff, and a hearsay statement contradicted by that sworn evidence. Mr Currie has provided alternative versions of another contested fact in this case, and has a record of dishonesty.

Counsel for the defendant urged that I should regard Mr Currie's statement as reliable because it was in the same version of events which contained the admission that he was driving which was the version of that fact which counsel for the plaintiff (who of course objected to any of these statements being admitted in the first place) had said was the more reliable version of that fact. Counsel for the plaintiff said that I should treat any statement in this form with extreme caution, and said that it would be unreliable and unsafe to prefer such a version, which could not be cross examined on, and which came from a person with a history of dishonesty and who had given differing versions of the truth in relation to another fact in issue, to the sworn evidence of the plaintiff. I find such an argument persuasive. The defendant has not persuaded me, on all of the evidence, that it is more likely than not that the plaintiff was involved in the joint enterprise of stealing the car and taking it for illegal purposes, or even that she knew that the car was stolen. The alternative version, that the plaintiff, as a young woman affected by alcohol at the time, believed that she was accepting a lift in a car borrowed by Mr Currie, is equally open on the facts. However foolish and unsafe accepting a lift in an intoxicated state may be, it is not evidence to establish participation in and involvement in an illegal enterprise.

The defendant also pleads voluntary assumption of risk and contributory negligence. To the extent that the voluntary assumption of risk argument is linked to the voluntary involvement in car theft it must fail for the reasons given above. Voluntary assumption of risk and contributory negligence are also pleaded in relation to the acceptance of a ride with a person who the plaintiff knew, or ought to have known, to have been affected by alcohol to such a degree that his ability to safely drive the motor vehicle would have been affected. Contributory negligence was also pleaded in relation to failure to wear a seatbelt, but no evidence in relation to the failure to wear a seatbelt was produced at all, and counsel for the defendant indicated that this aspect of the pleaded defence would not be pursued.

While earlier authorities support the view that a defence of voluntary assumption of risk, which operates as a complete defence, may arise when a passenger suffers injury at the hands of a drunken driver if the passenger knew or ought to have known that the driver was so drunk as to have an impaired capacity to drive (Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39), it has been noted that since the advent of apportionment legislation,

" ...courts have been much more inclined to support the defence of contributory negligence instead of volenti, to the extent that, in recent cases of a passenger suing a drunk driver, volenti has been described as a defence which has 'seldom succeeded'

(per Murphy J in Radford v Ward (1990) 11 MVR 509 at 515, Victorian Court of Appeal) and is 'practically a dead letter' (Suncorp Insurance and Finance Ltd v Blakeney (1993) 18 MVR 361 at 368, per Pincus JA Queensland Court of Appeal). The reason for this shift is not hard to find: contributory negligence apportions the responsibility between the parties in the light of the causative influence of each, whereas a successful defence of voluntary assumption of risk will

...excuse the defendant from the foreseeable consequences of his conduct, notwithstanding that that conduct remains a cause, and in many cases the only or a substantial cause, of the plaintiff's injuries

(Whitfield v McPherson (1995) 21 MVR 18 at 23 per Lee J Queensland Court of Appeal).

These judicial views have been reinforced by legislation in New South Wales, which abrogates the defence of volenti in respect of any motor accident and replaces it with a presumption of contributory negligence. "

(Balkin and Davis, Law of Torts, second edition 1996 at 356).

For either the plea of volenti to succeed (notwithstanding the reservations referred to above) or a defence of contributory negligence to be established, it will of course be necessary for the defendant to establish that the driver of the vehicle, who I have found to have been Mr Currie, was so drunk as to have had an impaired capacity to drive carefully, and that the plaintiff knew of this, or ought to have known of this.

There is some evidence to support the view that Mr Currie had been drinking to excess. In his statement to the plaintiff's then solicitors he says of his consumption, which I take to be over the evening

"I estimate that I had about 10 or 12 cans of normal strength beer as well as 4 or 5 glasses of bourbon and coke."

The plaintiff's evidence supports the view that she knew that the driver had been drinking, in that she observed him over the course of the evening at both the ANU Bar and the Manhattan Club talking with groups of people and having a drink. But she says that she was not with him during the whole of the course of the evening, and had no knowledge of the extent to which he was drunk. She did not observe him to be intoxicated as they walked from the ANU Bar to the Manhattan Club. As they left the Manhattan Club she was very drunk herself, but says that she did not notice Mr Currie's state of sobriety.

I am thus satisfied that

(1) Mr Currie had consumed a considerable quantity of alcohol over the course of the evening, being on his estimation 10 -12 cans of normal strength beer and 4 - 5 glasses of bourbon and coke, over about an 8 hour period. (2) The plaintiff knew that Mr Currie had been consuming alcohol, but did not know the quantity. (3) At the time they left together the plaintiff was so intoxicated that she was able to make no observation as to Mr Currie's fitness to drive.

The legal effect of these findings of fact is a matter of some complexity. The law on this subject is in my view well summarised by the authors of Balkin and Davis Law of Torts at pp341-342, and I will set out at some length the relevant passage.

"Applying the principle that contributory negligence consists in a failure to take reasonable care for one's own safety, it follows that a passenger injured by negligent drunken driving is contributorily negligent when accepting a lift knowing, or having reason to be aware, that the driver is so drunk as to have an impaired capacity to drive carefully.

The matter becomes more complex where the passenger has also been drinking. The view was taken in Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39 at 46 per Latham CJ, that if the passenger is sober enough to know and understand the risk, he or she will no doubt be negligent. There is, moreover, authority for the view that, where the passenger has imbibed so much alcohol that any capacity to know and understand the danger has been seriously weakened, and this capacity is self induced, contributory negligence will lie. Latham CJ in Joyce's Case regarded the passenger in this situation as having deliberately disabled himself from avoiding the consequences of the defendant's negligent driving and thus responsible. However, too liberal an application of this view carries with it the possibility of imposing liability on the plaintiff largely on moral grounds. White J in Watt v Bretag ( (1981) 27 SASR 301 at 314 South Australia, Full Court) warned against this:

Does it matter why or how the pedestrian (drunk or sober) came to step into the path of heavy traffic or why the pedestrian stepped into the drunken driver's car? I think not. What matters is the objective fact that he did....It should not matter, in assessing 'fault' whether the pedestrian stepped off the curb (or the passenger into the car) through insobriety, daring, stupidity or poor eyesight. The objective act of lack of care for one's safety is the most relevant fault, although other factors have a bearing.

Ultimately it is still a question of fact for the court to ascertain whether the plaintiff displayed an unreasonable disregard for his or her own safety. Where the passenger accompanies the driver on a pub crawl, setting out sober but ending up heavily intoxicated, it may be justifiable to say that the passenger in that conduct has exhibited a lack of reasonable care for his or her own safety by continuing to allow the defendant to drive. It is certainly open to a court to arrive at such a decision where the evidence shows that both parties had spent considerable time drinking together so that the plaintiff must have had some knowledge of the defendant's condition.

Other situations exist where the plaintiff may well be too drunk to make a rational judgment on the driver's condition but where that fact alone may not necessarily be regarded as evidence of having acted without reasonable care for his or her own safety merely by accepting the lift. Take, for example, the situation where a person attends a party, anticipating that he or she may become too inebriated to drive home and so arranges for another guest to provide that transport. So long, of course, as the person does not actually see the driver imbibing heavily, it may be wrong to hold the passenger contributorily negligent for an ensuing accident. This circumstance was doubtless what Dixon J had in mind when he 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 cause

(Insurance Commissioner v Joyce at 60)."

In this case the plaintiff was drinking in the same establishments as the driver of the vehicle from some time around 7 pm on the Friday evening until around 2.30 pm on the Saturday morning. She was aware during that time that Mr Currie was consuming alcohol, but not the precise quantities. By the time she accepted the lift, she was herself too intoxicated to make any observations as to his state of sobriety. I must concede that I find this aspect of this case difficult, but I cannot believe that a just result involves the complete negation of contributory negligence. I have received some assistance from the Judgments of Matheson and Legoe JJ in Spicer v Coppins (1991) 56 SASR 175 where Their Honours were of the view that a young man who accepted a lift home from a party from a companion who had agreed earlier to go easy and be the driver was contributorily negligent when that companion turned out to have been adversely affected by alcohol. The plaintiff was not drinking with the driver throughout the evening, although they were at the same party, and by the time they left he was unable to form any judgment due to his own consumption. Their Honours, reviewing a range of Australian and English drink driving ride cases, found that this conduct amounted to a failure to take due care, and found contributory negligence in the degree of 25%. I note that Bollen J disagreed, and said that the fact that the plaintiff passenger was in no condition to appreciate any risk meant that no contributory negligence could be found, relying on the remarks of Dixon J in Insurance Commissioner v Joyce cited above. I prefer the views of the majority, and I have grave difficulty with accepting the proposition that it is not a failure to exercise due care to drink oneself to oblivion and then accept a lift without any ability, due to the consumption of alcohol, to form a judgment as to whether that person is fit to drive. If this was what His Honour is to have been taken to have said in 1948, it is hardly consistent with contemporary views concerning alcohol and road safety.

I therefore find that the plaintiff was contributorily negligent, and having reviewed the authorities cited in Spicer v Coppins, I find that 25% is an appropriate rate to set as the level of contribution of the plaintiff to her own misfortune, as opposed to 75% being the level of responsibility attributable to the driver. If I had found that the plaintiff was in fact aware that she was accompanying the driver in a stolen vehicle, this level of contributory negligence would no doubt have been considerably higher.

While the normal course under the apportionment legislation is to assess damages before making a finding in relation to contributory negligence, the issues of contributory negligence in this matter are so closely bound with the complete defences raised that I consider it more appropriate to address the matter in this way. I find that the plaintiff suffered injuries as a result of the negligence of Mr Currie (for whom the defendant is liable by reason of s.66 of the Motor Traffic Act 1936). I further find that the plaintiff failed to exercise due care for her own safety in accepting a lift with Mr Currie, and that this failure amounts to contributory negligence so that the responsibility for her subsequent injuries are to be attributed 25% to her own conduct and 75% to the conduct of Mr Currie, for whom the present defendant is responsible.

The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

In this case the evidence in relation to the plaintiff's loss is limited to the plaintiff's sworn evidence in chief and in cross examination, and the medical reports tendered by the plaintiff. No medical reports were tendered by the defendant, although evidence was given which was not disputed that the plaintiff has been examined by experts on behalf of the defendant. A defendant is of course under no obligation to tender any medical evidence, but where such evidence has been taken but not produced a court is entitled to draw an inference that the evidence would not assist the defendant. The plaintiff's medical evidence was tendered by way of doctors' reports, and no doctor was required to attend for cross examination.

There is no question that the plaintiff suffered severe injuries in this accident. She was admitted by ambulance to the Royal Canberra Hospital under the care of Dr Newcombe, neurosurgeon. He described her injuries as

"...facial lacerations to the left temporal region and peri-orbital areas, a laceration of the left upper limb, and contusions of the scalp. She was rendered unconscious but was flexing to pain on arrival. There was a fracture of the mandible. X-rays also confirmed a fracture of the maxilla and of the left zygomatic arch as well as a fracture of the roof of the left orbit and a fracture of the nasal bone. There was some intracranial air. There were no focal neurological signs. She made a gradual recovery of consciousness. She was treated initially in the Intensive Care Unit. Dr Peter Brown wired the fractured jaws and attempted elevation of the fractured left zygomatic arch on 30.9.87 as well as suturing the lacerations. There was an episode of cerebro-spinal fluid rhinorreah with also leakage of cerebro spinal fluid down the throat but this settled over 24 hours."

Dr Brown's report confirms that the procedures he performed on 30 September were done under general anaesthetic, and that he performed another procedure on 19 August 1988, this time under local anaesthetic, to remove the plates and screws inserted in September 1987. Both Dr Newcombe and Dr Brown in their reports indicated that a good prognosis was expected in the longer term. Considerable work was also required in relation to the plaintiff's teeth, and there is an expectation that future work may also be required.

In 1990 the plaintiff attended Dr James, a reconstructive and plastic surgeon, who performed surgery on 1 November 1990 under general anaesthetic to revise extensive facial scarring caused by the accident and the fractures to her skull. In his report of July 1993 he notes that the plaintiff continues to have

"...extensive scarring on her face with severe cosmetic deformity, but no loss of function."

While some further treatment was considered, Dr James was of the view that her scarring would remain apparent, and there is a noticeable scar, particularly to the left side of her face in a crescent shape in line with the left eye.

The plaintiff complained to her general practitioner in May 1988 of

"...headaches and neck aches which had been present since the accident."

This is the first record of such complaints. She has continued to complain of cervical and low back pain. She also is aware of marked impairment of short term memory and an inability to concentrate.

Dr White, neurologist, examined the plaintiff for the purposes of a medico legal report in December 1995. He formed the view that the plaintiff

"...would appear to have suffered soft tissue, probably disc injuries, in the cervical and lumbosacral spine regions. There is no evidence of neural impingement syndromes and I believe that it will be a matter of time before her pain diminishes to an acceptable level."

I note that there is no radiological evidence to support a claim of disc injury, and I take this to support a finding of soft tissue injury to the relevant areas.

Dr White continued

"..of more importance would appear to be cognitive dysfunction, probably on the basis of closed head injury, with a substantial secondary reactive depression. This needs further elucidation with formal neuropsychological assessment and psychiatric assessment."

These assessments were performed and the reports tendered. A report from Mr David Stokes, neuropyschologist, refers to testing performed in April 1996. This report was of course available to the defendant and no evidence was produced in response. I note that Mr Stokes took a history, consistent with the plaintiff's evidence in chief and history given to other doctors, that prior to the accident she was in Year 12 and "academically competent". Evidence was tendered by the defendant comprising records from Narrabundah College which showed that the plaintiff had in fact had extensive absences from her schooling and that as a result a warning had been sent to her parents address in July indicating that she may be deemed unassessable in respect of six units of study due to lack of attendance and/or failure to submit assigned work.

Mr Stokes' tests demonstrated that there were a number of disabilities in relation to her cognitive functions attributable to a closed head injury. He said

"On tests of general ability Ms Johnstone demonstrated considerable variability. Her best performances were at the solid average level of ability while others ranged from low average to below average. Although her speed of functioning played a significant part in explaining this variation, there was also evidence of reduced capacity to handle complex thinking tasks and maintain concentration. It seems best to describe Ms Johnstone as a person of at least solid average intelligence but with a scatter of significant difficulties."

He concluded that

"Ms Johnstone presents as a person of solid average intelligence who, although demonstrating areas of preserved function at that level, is also experiencing general difficulties with speed of functioning and competence, specific difficulties with memory and new learning, and limitations to her problem solving and organising."

He noted that

"Although it is clear that Ms Johnstone retains some of her previous skills, it is also evident that they are available only under ideal circumstances. That is to say, she requires considerable time, freedom from pressure, and limited demand to demonstrate anything of her previous capacity. In the face of multiple expectations, frequency of demand and time limitations, Ms Johnstone is very disabled. As a consequence her suitability for employment, even in areas with which she is familiar, is extremely poor. Because of her memory and new learning difficulties, retraining would only add further problems to the situation."

Against this must be set the evidence that the plaintiff did undergo retraining in typing as part of her rehabilitation following the accident (having previously studied typing while at college), and she sat for and successfully passed the Australian Public Service entrance test, working as an entry level clerical assistant for some six months. She left this because she did not like the work, and worked for a while in a florist shop. Although she told a doctor that she had difficulty with remembering things in this employment, her sworn evidence in cross examination was that she left this job because of conflict with the employer. For a period of some 18 months prior to the birth of her child in October 1991 the plaintiff worked full time as a receptionist for CARE, the Canberra based consumer credit and debt counselling service. A statement from CARE tendered in evidence states

"Reason for client ceasing employment: Melissa resigned from her position at the time of the birth of her child. It should also be noted that during Melissa's time of employment with us, she had great difficulties with some aspects of her work. In particular with her memory relating to the taking and passing on of phone messages, and her ability in carrying out verbal requests."

The report from Dr Veness, consultant psychiatrist, confirms Mr Stokes' observations in relation to memory loss and cognitive function, and expresses the view that

"All in all, the quality of this patient's life has been severely damaged. She has difficulties with memory, with writing and with other cognitive functions to a severely disabling extent. In addition she has a chronic pain syndrome and a chronic depressive illness. Pain, depression and her lost cognitive functions will continue to trouble her all her life. She will never be fit for gainful employment."

Dr Veness had identified three aspects to the plaintiff's injuries:

"Firstly, Melissa had suffered serious organic brain damage as a result of the head injury she had sustained. Secondly she had residual physical problems including chronic pain and facial scarring. Thirdly she had a serious depressive illness."

In relation to general damages, this uncontradicted medical evidence means that this plaintiff must be considered for compensation on the basis of quite severe injuries and ongoing difficulties. The plaintiff suffered extensive head injuries, requiring surgery under general anaesthetic, further surgery under local anaesthetic, and a later procedure under general anaesthetic again to remove fixtures. She is left with facial scarring, despite corrective surgery, and is very conscious of the effect of this on her appearance. This scarring is plainly visible, particularly at the left temple. She is also left with ongoing difficulties with her teeth.

Most seriously, she has suffered, as a result of the closed head injury, brain damage leading to an ongoing and permanent loss of cognitive function. Associated with this is an ongoing depressive illness, and pain to the neck and back associated with soft tissue injury, described by Dr Veness as chronic pain syndrome. This medical evidence is uncontradicted.

The plaintiff now lives a quiet life on the south coast, where she went with her husband after the birth of their second child. While they are close to his parents, who can provide assistance, the plaintiff said that she provides for the care of her children (now 5 and 7) and does the housework. She prefers the quiet life on the coast to the city.

It is not an easy task to attempt to place a quantum on appropriate damages when the injury involves ongoing brain damage and the plaintiff is a young person. I note that, in considering a claim involving a young person with head injuries (albeit of a considerably graver consequence), Master Hogan said his task in assessing general damages was to ask himself,

"What is a reasonable sum of money to award to her, in order to compensate her as far as money can, being neither niggardly at her expense, or concerned at the size of the award, on the one hand, or overly generous with the defendant's monies, which are the community's monies, on the other."

(Edwards v ACT Schools Authority, SC 1453 of 1987, unreported, 18 March 1993, per Master A Hogan).

The plaintiff must, on the basis of all the material before me, be entitled to a substantial award by way of general damages. I award the sum of $120,000 by way of general damages, with $50,000 being for past loss, generating interest of $9,950, a total award of $129,950.

The plaintiff's claim for economic loss was particularised by way of a total inability to engage in remunerative employment as a consequence of her accident related disabilities. While doctors have expressed this view, I find it to be inconsistent with the plaintiff's history since the accident, where she sat for and passed the Public Service entry exam and worked in a clerical job for a while before leaving, and her employment in a florist shop as well as with CARE. Counsel for the plaintiff acknowledged that, on the evidence, it would be open for me to find that the plaintiff has a residual capacity, and that the case might thus be approached by way of a buffer claim. I think this is appropriate. She has demonstrated a past capacity to find and hold employment. While I accept that there were difficulties at her last job at CARE directly attributable to her accident related disabilities, she left this position voluntarily upon the birth of her second child, and then decided to care for her children. She has not sought employment since, and has moved away from Canberra to a coastal lifestyle, first at an isolated bush location and more recently at a coastal town. She continues to care for her children and perform household tasks. Her husband has himself suffered a back injury in recent years, which places a greater burden on her.

There is an obvious difficulty in assessing economic loss in relation to a plaintiff who is still at school at the time of the accident in circumstances where the nature of the accident caused disability which is constant and ongoing. The plaintiff said that she had aspirations to be an air hostess, and had done work experience in the travel industry, but this really must be seen as that - an aspiration. Her academic record was not tendered, and while the defendant tendered material from the school to show that she had been having extensive time away in the year of the accident and had been under threat in a number of subjects, this does not mean that completing Year 12 was always closed to her. On the other hand, she acknowledged that she made no attempt to return to school and complete Year 12, but did successfully pass the public service entry test, and had sought, obtained and successfully held a number of jobs before leaving the workforce after the birth of her second child. She has not attempted to find work since. Mr Stokes' report demonstrates that she retains a good degree of intelligence, and various doctors have described her presentation as pleasant, which is confirmed by the impression I gained of her as a witness.

This is not a case for the type of "modest buffer" suggested by counsel for the defendant, which may be appropriate if I was considering only her disabilities by way of soft tissue injuries and scarring. The plaintiff has, in addition to these physical difficulties, an ongoing and constant level of impairment to her cognitive functions, which preclude a range of potential employment. This must sound in a substantial buffer. Having considered all of the evidence I award the sum of $80,000 by way of a buffer for future economic loss.

In relation to past economic loss, counsel for the plaintiff again conceded that a global approach is appropriate. The plaintiff has found and obtained employment, although this must be viewed against her clear ongoing disabilities. What might have been her course of employment had she not had these difficulties is a matter incapable of precise calculation. Moreover, she has left her last employment freely, and not sought alternative employment since, instead caring for and raising her young family. No evidence was provided as to her earnings as a public servant and in the florist shop. It would appear from the wages records of CARE that she was receiving a net wage of about $220 per week while with that organisation, working about 25 hours per week.

The plaintiff did not submit detailed evidence of her earnings in the 10 years since the accident, and counsel conceded that the defendant was entitled to have me proceed on the basis that the plaintiff had utilised her earning capacity in the past. The defendant argues that, where the plaintiff has left employment, the evidence indicates that this has been voluntary. Despite this, I must find that the plaintiff's accident caused disabilities have had a real impact on her past income capacity, and I fix this as a global buffer of $25,000 inclusive of interest.

At the final day of the hearing of this matter counsel indicated that agreement had not yet been reached on out of pocket expenses, and I gave the parties leave to provide this material after submissions had concluded.

A substantial issue arose in relation to out of pocket expenses. The defendant has agreed to expenses in the sum of $4,513. The outstanding item, on which agreement could not be reached, was the appropriate allowance for the cost of the plaintiff's inpatient stay at Royal Canberra Hospital.

When the plaintiff was first admitted she was unconscious, and as no other person had been found, an assumption seems to have been made that she was the driver. Accordingly she was billed at the normal public hospital rate, and a bill was raised for $2,080. This was paid by the plaintiff's parents in March 1988.

The ACT Department of Health subsequently became aware that these proceedings were afoot, and a new bill was issued, calculating the plaintiff's bed costs at the third party insurance rate. This resulted in a bill for $4,880, some $2,800 greater than the previous bill.

For some reason not satisfactorily explained the Hospital's accounting system failed to properly offset the amount paid. What it did was show a charge for the public patient sum of $2,080, then a charge for the third party sum of $4,880, added these together, to generate a bill of $6,960. It then acknowledged the receipt of payment for the public patient sum, showing an outstanding balance of the full third party sum. This clearly involved a double counting error.

It is clear to me that an error has occurred here, and that the outstanding debt to the hospital is in the sum of $2,800, not $4,880.

By s.49 of the Health Services Act 1990 interest may be charged on outstanding accounts at a rate to be determined in writing by the Minister.

A rate of 20% was set by the Chief Executive of the Board of Health on 23 December 1991 to apply from 1 January 1992. On 5 January 1995 a new rate of 15% was determined by the Minister for Health.

The Department of Health had at the time of the hearing, billed the plaintiff for the incorrect principal debt, that is $4,880, together with interest at the rate of 20% calculated retrospectively to the date of the original debt, generating a debt by July 1997 of $14,072.67.

The defendant objected to this as a legitimate expense. The issue of the correct out of pocket expenses award in this case necessarily involved an examination of the question of the bill from the hospital, and at a resumed hearing of this matter on 24 October 1997 the ACT Government Solicitor attended, and I made an order pursuant to O.19 r.12 that the Australian Capital Territory be made a party, in order to resolve the question of the appropriate level of out of pocket expenses arising from the plaintiff's inpatient stay.

The July bill raised by the Department of Health and Community Care is clearly wrong insofar as it is based on a principal debt of $4,880, and is also in error in that it purports to apply the interest charge retrospectively. It may also fail to take into account changes to the rate of interest.

Counsel for the Territory provided a fresh schedule of interest calculations following this hearing, calculated from the date interest charges first applied on a principal debt of $2,800 and taking into account the change in interest rates in 1995, which results in a total debt, including interest, of $7,493.10 to 1 November 1997.

The liability to interest arises from the Health Services Act 1990. Section 49(2) of that Act provides that where a debt to the hospital is unpaid, interest may be payable at

"a rate determined in writing by the Minister".

The original rate of 20% was set by the Chief Executive of the Board of Health on 23 December 1991 to apply from 1 January 1992 ("the 1991 determination"). On its face this is an unauthorised exercise of power, as the power to set a rate is expressly delegated by the Act to the Minister.

However, s.5(1) of the Administration Act 1989 provides

"A Minister may, by instrument, delegate to any person all or any of his or her powers under an Act or subordinate law",

unless a contrary indication appears in the substantive Act (s.5(3)).

The relevant provisions of the Health Services Act 1990 were re-enacted in s.18(2) of the Health Act 1993, which was the source of authority for the 1995 Ministerial determination, which set a rate of interest at 15% per annum from 12 January 1995 ("the 1995 determination"). By s.11 of the Health (Consequential Provisions) Act 1993 interest rates struck under the Health Services Act 1990 remained in force.

While an argument may be mounted over the sub delegation of a Ministerial power to set a fee, I am satisfied that s.5(1) of the Administration Act 1989 will support the 1991 determination provided the necessary Ministerial delegation is in order. In written submissions presented following the resumed hearing, the ACT Government Solicitor advised that it would rely on an instrument of delegation from the Minister to the Chief Executive of the Board of Health dated 27 May 1991, but that it was unable to produce the instrument.

Despite further time being made available, the ACT Government Solicitor's Office advised my chambers on 6 November 1997 that this instrument of delegation could not be produced. It follows that the 1991 determination cannot stand, as the only authority for the Chief Executive to set a fee would flow from the delegation, pursuant to s.5 of the Administration Act, which cannot be shown to exist.

It follows that the debt to the hospital is the capital sum of $2,800 together with interest at 15% per annum from 12 January 1995. By my calculations this amounts to a total debt of $4,165.88, and a total amount for out of pocket expenses of $8,678.88, which I award.

The Statement of Particulars indicated that a Griffiths v Kerkemeyer claim would be made on the basis of assistance for 5 hours per week in the plaintiff's daily living activities in the three months following her discharge from hospital, and thereafter at 2 hours per week. The plaintiff's evidence was that she discharged herself from hospital and went to live at a friend's house. She said she had not much recollection of the next couple of years. No submissions were made on this aspect of the claim, and I am not satisfied that the evidence would establish any claim under this head of damages.

The plaintiff makes a claim for ongoing medical expenses, based on the cost of replacing a crown at about $55 each six months, and ongoing medication at $100 per week.

The plaintiff gave evidence that she has taken Prozac from 1995, but that her dose is reducing. She also says that she sometimes takes a muscle relaxant which is prescribed by her general practitioner. No evidence was provided to support the cost of such medication, and I note that the claim as particularised would exceed in one year the total out of pocket expenses since the accident in 1987, excluding the hospital charges. Nevertheless, I accept that there will be ongoing expenses, and I award $5,000 by way of a discretionary global sum for future treatment and medication.

This would amount to a global award of $248,628.88. As I have found contributory negligence in the degree of 25%, this sum must be reduced to $186,471.66, which I award with costs.

The resumed hearing on 24 October 1997 was made necessary by the Territory's demand for payment on an erroneous basis. It seems appropriate that the Territory pay the plaintiff's and defendant's costs of this day.