Algeri v Pennington - [2016] WADC 41

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALGERI -v- PENNINGTON [2016] WADC 41

CORAM: GETHING DCJ

HEARD: 23 - 25 FEBRUARY 2016

DELIVERED : 6 APRIL 2016

FILE NO/S: CIV 1420 of 2014

BETWEEN: SANTO ALGERI
Plaintiff
AND
JAMES STUART PENNINGTON
Defendant

Catchwords:

Negligence - Personal injuries - Motorcycle collision - Turns on own facts

Evidence - Expert evidence - Whether expert evidence may be given reconstructing an accident

Legislation:

Civil Liability Act 2002 (WA) s 5B, s 5K
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 4

Result:

Judgment for the plaintiff on the claim, reduced by 20% for contributory negligence

Judgment for the defendant on the counterclaim, reduced by 80% for contributory negligence

Representation:

Counsel:

Plaintiff: Mr E J Myers
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Simon Walters
Defendant: Bradley Bayly

Case(s) referred to in judgment(s):

3MEG.com Pty Ltd v TM & SM Pike Pty Ltd (2012) 43 WAR 350; [2012] WASCA 128
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
ASIC v Rich (2005) 53 ACSR 110; [2005] NSWSC 149
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229
Bell Group Ltd (In liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 39 WAR 1
Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180
Bonython v The Queen (1984) 38 SASR 45; (1984) 15 A Crim R 364
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
British Fame (Owners) v Macgregor (Onwers) [1943] AC 197
Browne v Dunn (1894) 6 R 67
Browning v Bitupave Ltd t/as Boral Ashphalt [2008] NSWSC 19
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
C Van Der Lely NV v Bamfords Ltd (1962) 1A IPR 86; C Van Der Lely NV v Bamfords Ltd [1963] RPC 61
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102
Hatziandoniou v Ruddy [2015] NSWCA 234
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kalbasi v The State of Western Australia [2013] WASCA 241
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228
Nickisson v The Queen [1963] WAR 114
Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85
Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10
Pettigrew v Wentworth Shire Council [2012] NSWSC 624
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Richards v Picco [2000] NSWCA 35
Scope Machinery Pty Ltd v Ross [2009] WASCA 100
State of Western Australia v Liyanage [2016] WASC 12
Stillwell Trucks v McKay [2002] NSWCA 292
Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173
The State of Western Australia v Silich [2011] WASCA 135
Town of Mosman Park v Tait [2005] WASCA 124
Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383
Van der Velde v Halloran [2011] WASCA 252
Westcott v Minister for Health [2015] WADC 122
Woods v The Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; (1997) 149 ALR 25

GETHING DCJ: On the morning of Sunday 18 August 2013 the plaintiff (Santo Algeri) and the defendant (James Stuart Pennington), who were both riding licensed motorcycles, collided. Both suffered significant injuries. In the present action, each alleges that the accident occurred as a result of the negligence of the other. The action was listed for trial on the issue of liability on the claim and the counterclaim.
The collision took place on Jarrahdale Road around 50 m west of a turnoff to the north into the Jarrahdale Sports Shooters Club (JSSC). Mr Algeri was travelling in a westerly direction along Jarrahdale Road. He says that immediately prior to the collision Mr Pennington was almost stationary and riding on the very edge of the tarmac on the left-hand side of the road. As Mr Algeri moved to overtake, Mr Pennington without indication or warning turned right across the path of Mr Algeri's motorcycle, and the collision occurred.
Mr Pennington says that he was travelling in a westerly direction along Jarrahdale Road. As he approached the turnoff to the JSSC, he engaged his right‑hand indicator and slowed to about 10 km per hour. He says he was in the westbound lane, close to the centre of the road. As Mr Pennington commenced his right turn into the access road to the JSSC, Mr Algeri attempted to overtake him, and the collision occurred. He says that the collision occurred in the eastbound lane.
In addition to giving evidence himself, Mr Algeri called four witnesses. Two of the witnesses were riding with him: Kim Gaunt and Anthony Attwood. The other two witnesses were experts: Martin Simms and Robert Davey. Mr Pennington gave evidence along with two of the motorcycle riders with him that day, Robert Auzner and Gary Sevier. Each of the lay witnesses appeared to be an experienced motorcycle rider.
The decision is structured in the following Parts:
•Part 1: Facts that are not in dispute
•Part 2: Expert evidence
•Part 3: Eye witness accounts of the collision
•Part 4: Findings as to how the accident occurred
•Part 5: Determination of liability

Part 1: Facts that are not in dispute

The facts set out in this part are not in dispute, and I find them to have been established on the balance of probabilities. Where there is a slight divergence in the recollections of the witnesses, I have set out the range of views.
Mr Algeri, Mr Attwood, Mr Gaunt and others are members of a group who have a standing arrangement to ride their motorcycles together socially on a Sunday morning (I will refer to this group as the 'Algeri Group'). Their usual practice was to meet at Mr Gaunt's house in Bickley Valley. They would meet around 9.00 am or 9.30 am, and have a coffee while they waited for people to arrive. They would decide where they would be going, and then head out.
On the morning of the collision, the group followed their usual practice. They had decided to ride to Baldivis via Jarrahdale Road. Their destination in Baldivis was the residence of one of the other members of the group riding that morning.
Seven (Mr Algeri) or eight (Mr Attwood and Mr Gaunt) riders were in the group on the morning of the accident.
In the time shortly prior to the collision, Mr Algeri was in the middle of the group. The rider immediately in front of him was Mr Gaunt. The rider immediately behind him was Mr Attwood. The route taken by the Algeri Group saw them travel west along Jarrahdale Road. Mr Algeri was travelling in what he described as the 'right wheel track'. By this he meant that he was travelling in the position which the right‑hand, or driver's side, wheel of a car would normally travel, about 750 mm to the left of the centre line of the road.
Mr Pennington is also in a motorcycle group that rides socially (which I will refer to as the 'Pennington Group'). They arrange their rides over the internet. On the morning of 18 August 2013 Mr Pennington and a group of four others met at the Caltex Service Station on the corner of South Western Highway and Nettleton Road. They set off without a clear destination in mind. Mr Pennington was in the lead as he knew the area. They had a practice of periodically stopping and regrouping, in particular at corners.
After riding up Nettleton Road and then on some unsealed roads, the Pennington Group turned onto Jarrahdale Road.
There are conflicts in the evidence as to:
•The manner in which the Pennington Group were riding prior to the collision
•Whether Mr Algeri passed Mr Sevier prior to the crest just east of the collision point
•The speed at which Mr Algeri was travelling immediately prior to the collision
I deal with these issues in Part 4.
In terms of the accident scene, it is common ground that the collision occurred at a point on Jarrahdale Road approximately 4 km east of the Jarrahdale town site and just west of the turnoff to the north into the access road to the JSSC. There is a 90 km per hour speed sign on the southern side of the road, across the road and slightly west of the turnoff to the JSSC. This is the approximate site of the collision. I will use the 90 km per hour speed sign as my datum point as it is visible from the photographs in evidence.
In addition to the descriptions of the witnesses, there are a number of photographs of the area in which the collision occurred. Further, Mr Pennington (exhibit D6), Mr Simms (ts 156 ‑ 158) and Mr Davey (exhibit P29) all took or made measurements. Mr Davey took photographs of the collision site at 50 m intervals going back to the west (exhibits P22 to P28). As the evidence as to the scene of the collision is not contradictory and the subject matter of the photographs does not require expert evidence to interpret, exercising appropriate care, I am able to form a view as to what the photographs appear to depict or reveal: Pettigrew v Wentworth Shire Council [2012] NSWSC 624 [127] (Hoeben J); Browning v Bitupave Ltd t/as Boral Ashphalt [2008] NSWSC 19 [115] – [121] (Harrison J). My findings also reflect the evidence of the witnesses. There are some differences in the measurements between the witnesses explained by the use of different datum points from which the measurements were taken. With the use of approximate distances, the evidence may be reconciled.
In an easterly direction from the collision site there is a crest in the road. At the top of the crest there are metal barriers on either side of the road, which Mr Algeri referred to as a 'bridge'. The road in between these barriers is marked with a double white line. The road proceeds in a straight line west from this point for at least 500 m. The road is 8.2 m wide, with the gravel shoulder on each side being about 1.6 m wide.
Due to the crest, from around 275 m east of the crash site, the road is only visible for about 150 m (in particular, see exhibit P28 which shows a white road marker around 150 m further on from this point; also from this point only the top of the 90 km per hour speed sign is visible).
The foliage in the photographs in evidence was 'remarkably similar' to that at the time of the accident (ts 273).
The entrance to the JSSC is not easily visible when approaching from the west (ts 294, 316).
From a point around 225 m east of the collision site, there is clear visibility to the collision site, marked by the 90 km per hour sign (exhibit P27). From this point the turnoff to the JSSC is not visible. The road is still marked with double white lines. Nor is the turnoff to the JSSC visible from a point around 175 m west of the 90 km per hour sign (exhibit P26).
Around 125 m east of the collision site the road markings change from a double unbroken white line to a broken white line for westbound traffic (the direction in which all the motorcycle riders were travelling) and an unbroken white line for the eastbound lane. At this point, the turnoff to the JSSC is still not visible (see exhibits P25 and P26). In particular, there is a large blue rock marking the entrance to the JSSC with a reference to the JSSC in painted white letters (exhibit P19, exhibit P22). The large blue rock is set some distance back from the road. The large blue rock is not visible from the point 125 m east of the collision site.
Even around 75 m from the 90 km per hour sign the large blue rock is not visible, though the entrance to the track to the JSSC does appear to be visible (exhibit P24).
The 90 km per hour speed sign (collision site) is around 50 m further west of the turnoff to the JSSC. On the north side of the road (that is, on the same side of the road as the turnoff to the JSSC and the opposite side to the 90 km per hour speed sign) there is a gravel clearing.
It is common ground in the pleadings that, immediately prior to the collision, Mr Pennington slowed to 10 km per hour. As he commenced a right‑hand turn into the JSSC, Mr Algeri attempted to overtake him and the two collided. The eye witness accounts of the collision are set out in Part 3, with my findings as to how the collision occurred being set out in Part 4.
After the collision, Mr Pennington blacked out. He came to on the north side of the road, the same side as the turnoff to the JSSC.
After the collision, the force of the impact catapulted Mr Algeri into the air over his motorcycle. He slid feet first down the road in a westerly direction (that is, in the same direction as his direction of travel). He ended up sitting on the embankment on the southern side of the road with his back up against a ditch. There are some contested issues surrounding how Mr Algeri ended up on the embankment which I will come back to in Part 4 ([179] – [195]). His motorcycle ended up in the embankment on the southern side of the road a few metres further down (west) from where he sat. He suffered a number of serious injuries, which for present purposes I do not need to go into.
Ambulances were called and two came, one for each of Mr Algeri and Mr Pennington. They arrived about 10 minutes after the collision.
Mr Algeri's resting position is evident from the photographs in evidence (exhibits D1 and D3). The ambulance attending to him pulled up on the road immediately adjacent to him, beyond a white road marker. The white road marker is around 60 m from the 90 km per hour speed sign (exhibit D6). The ambulance appears to be around half that distance again to the west, say another 30 m, making a total of around 90 m. This accords with the evidence of Mr Auzner who paced out 84 steps between where Mr Pennington ended up and where Mr Algeri did. I find that Mr Algeri's resting place was around 90 m west from the collision site.
Mr Attwood followed Mr Algeri on his motorcycle, and stopped to attend to him.
Mr Auzner also followed Mr Algeri, stopping to render him first aid. Mr Auzner does not recall Mr Attwood, again a point I will return to in Part 4.
Mr Sevier stayed with Mr Pennington.
Mr Gaunt and the first and second riders in the Algeri Group stopped at the next intersection to wait for the other riders in their group, as was their practice. After a few minutes it was apparent that something had gone wrong so they went back. At that point Mr Gaunt saw that a collision had occurred. He attended to Mr Algeri.
Both motorcycles were damaged, and photographs were taken of them, which are in evidence. I will refer to the damage to the motorcycles in detail in the context of considering the expert evidence.

Part 2: Expert evidence

The expert evidence in the present case is largely based on objective facts, in particular, photographs. Accordingly, it is instructive to review the expert evidence before looking at the evidence of the eye witnesses in detail.
Mr Algeri adduced evidence from two experts, Martin Simms and Robert Davey. Mr Simms is a consulting engineer. Mr Davey is a motor vehicle accident consultant. Counsel for Mr Pennington objected to their evidence on the basis that the subject matter of their reports was not of such a nature as to permit expert evidence. Prior to the reception of Mr Simms' evidence I conducted a voir dire on this issue. This is in line with the guidance of the Court of Appeal that, as a general rule, objections to evidence should be determined as they arise and not deferred until the conclusion of the trial: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 [96] (Martin CJ, with whom Buss and Newnes JJA agreed). As part of the voir dire, Mr Simms gave evidence and was cross‑examined. I ruled in favour of the admission of the evidence (ts 118 ‑ 120). Counsel for Mr Pennington renewed her objection in closing submissions (ts 346 ‑ 373, in particular 361).
The reports of Mr Simms and Mr Davey were set out in an Index of Experts' Reports filed 10 February 2016 pursuant to District Court Rules 2005 (WA) (DCR) r 45E. Except with the leave of the court, a party cannot tender the report of an expert witness as evidence unless the party has complied with DCR r 45E. Mr Simms' report was disclosed to Mr Pennington's lawyers in mid to late 2015. Counsel for Mr Pennington objected to parts of Mr Simms' report, so in the end he gave his evidence orally. Although Mr Simms' report was not tendered, it is important that I note that in his report he made the declaration required by the District Court's Code of Conduct for Expert Witnesses: DCR r 48; Consolidated Practice Direction Civil Jurisdiction, Annexure B, clause 3.10.
Mr Davey's report was not received by Mr Pennington's lawyers until 11 February 2016 (ts 364), the day after its existence was disclosed in the Index of Experts' Reports filed 10 February 2016. This is notwithstanding that Mr Davey's report is dated on its face 7 October 2015. However, counsel for Mr Pennington did not object to the tender of Mr Davey's report based on the lateness of its production (ts 7 ‑ 8). Mr Davey's report was subsequently tendered (exhibit P29). Like Mr Simms, Mr Davey made the declaration required by the District Court's Code of Conduct for Expert Witnesses.
Mr Pennington did not adduce any expert evidence. This does not mean that I am permitted to simply accept the expert opinions of Messrs Simms and Davey; rather I must make an independent evaluation of their opinions, and make any findings of fact on the evidence as a whole, on the balance of probabilities: Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229 [28] ‑ [29] (Steytler J, with whom Murray & Wheeler JJ agreed). I am entitled, but not bound, to accept the evidence set out in the expert opinion: Van der Velde v Halloran [2011] WASCA 252 [114] (judgment of the court). For example, I would not be bound to accept their expert opinions as evidence if they were contradicted by a credible body of substantial evidence: Van Der Velde [116]. The decision in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 is an example of a decision in which the court (on appeal) disregarded the opinion of an expert on the basis that it was inconsistent with a significant objective fact (the presence of skid marks) (see in particular [40] (Gleeson CJ, Gummow and Kirby JJ)). As with a lay witness, I am entitled to accept all of a particular expert's opinion, or none of it, or accept some of it and reject the rest, or simply put it to one side: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 645 (judgment of the court); Automasters Australia [28]; Westcott v Minister for Health [2015] WADC 122 [52] McCann DCJ.
In Town of Mosman Park v Tait [2005] WASCA 124 [63], McLure JA identified four preconditions for the admissibility of expert evidence:
Firstly, the subject matter must be of such a nature as to require a sufficient degree of specialised knowledge to render expert evidence admissible. Secondly, the witness must have relevant expertise in the area. Thirdly, the expert must either prove by admissible means the facts on which the opinion is based or explicitly state the assumptions as to the facts on which the opinion is based. Fourthly, the process of inference that leads to the opinion must be stated or revealed in a way that enables the conclusion to be tested and a judgment made about its reliability.
Given the objection to the expert evidence, I need to address each of these preconditions before proceeding to analyse the substance of the evidence.

In the present case, the expert evidence may be divided into three categories. The first is the pictures and measurements taken by each expert. There was no objection taken to the reception of this evidence.
The second category is the observations and inferences drawn from a number of photographs of Mr Algeri's motorcycle and Mr Pennington's motorcycle immediately after the accident. The key opinion to come out of this evidence is the angle at which the collision occurred.
The third category is the opinion as to where the collision occurred. This in turn goes to whether Mr Pennington commenced his turn from the left-hand shoulder (Mr Algeri's case) or the right wheel track (Mr Pennington's case) of the westbound lane of Jarrahdale Road.
The two opinions are discussed at the end of this part.

Procedural fairness issues

There was a point when Mr Simms was giving evidence-in-chief where counsel for Mr Algeri sought to put what he understood to be Mr Pennington's version of events to Mr Simms (ts 147). Counsel for Mr Pennington objected on the basis that the evidence being led went well beyond the ambit of the original, disclosed, expert report. I upheld the objection, noting that counsel for Mr Pennington would have to put his version of events to Mr Simms in order to comply with the principle in Browne v Dunn (1894) 6 R 67 (HL) and that counsel for Mr Algeri would be able to address the issue in reply (ts 147 ‑ 151) (as to the rule in Browne v Dunn, see generally: Scope Machinery Pty Ltd v Ross [2009] WASCA 100, [28] ‑ [29] (Martin CJ, with whom Buss and Miller JJA agreed); Bell Group Ltd (In liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 39 WAR 1 [1023] – [1041] (Owen J)).
In closing submissions, counsel for Mr Pennington stated that the defence was taken by surprise by the expert evidence at trial (ts 351 ‑ 352). The key issue on which the submission of surprise was based was that the scenario that the collision occurred in the eastbound lane was implausible (ts 351). However, as I anticipated in dealing with the objection in the examination‑in‑chief of Mr Simms, the evidence which counsel for Mr Pennington says took the defence by surprise was evidence that came from cross‑examination. Counsel for Mr Pennington accepted this point, though commented that Mr Davey's evidence came out to mean something different from what the defence initially understood (ts 351). I have summarised the evidence which emerged from cross‑examination below ([95], [96], [100], [101]). The specific complaint made was that Mr Pennington was given no opportunity to test their opinions on this issue (ts 351).
No complaint can be made about the lawyers for Mr Algeri not putting Mr Pennington's version of the facts in detail to Mr Simms and Mr Davey when they were initially briefed. To the extent that Mr Pennington's version of the facts was known (eg from the pleadings, police reports and insurance reports), this material was provided to Mr Simms and Mr Davey. However, it appeared to me that the detail of Mr Pennington's version of the facts did not emerge until trial. Criticism could be levelled at Mr Algeri's lawyers for their late disclosure of Mr Davey's report, though as I have already noted, this issue was not pressed by counsel for Mr Pennington.
I remain of the view which I expressed when dealing with the objection during the course of the trial, that in order to comply with the rule in Brown v Dunn, it was inevitable that counsel for Mr Pennington had to put his version of the facts to Mr Simms and Mr Davey. There is nothing procedurally unfair about the court then relying on the answers that they gave. In other cases, the risk of surprise is avoided by the defendant obtaining his or her own expert report, based on the defendant's version of the facts. Typically, each party will then provide the other's expert reports to their experts and obtain supplementary opinions, which are then disclosed. In this way, the risk of surprise at trial is avoided.
I do not consider that there is any rule of civil procedure or procedural fairness which precludes me from relying on all the evidence given by Messrs Simms and Davey; whether their evidence is admissible and persuasive are issues which I do need to consider carefully.

Does the subject matter warrant expert evidence?

In relation to the first precondition, the classic starting point is the following observation by Dixon CJ in Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491:
The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J. W. Smith in the notes to Carter v. Boehm, 1 Smith L.C., 7^th ed. (1876) p. 577. 'On the one hand' that author wrote, 'it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it.' Then after the citation of authority the author proceeds: 'While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it.'
In the same decision, Menzies J observed that '[o]pinion evidence to account for a happening that is described to a witness is admissible only when the happening can be explained by reference to an organized branch of knowledge in which the witness is an expert' (501 ‑ 502).
These observations have been applied in this jurisdiction, see for example: State of Western Australia v Liyanage [2016] WASC 12 [52] (Hall J); Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 [251] (judgment of the court).
In The State of Western Australia v Silich [2011] WASCA 135, Martin CJ (with whom Buss JA and Hall J agreed) observed [70], [72]:
When issues concerning the admissibility of expert evidence arise, at least two questions must be addressed. The first is whether the evidence which it is proposed to adduce concerns matters about which ordinary persons are unable to form a sound judgment without the assistance of those possessing special knowledge or experience or expertise in the area, and in respect of which there is a body of knowledge which is recognised as a reliable body of knowledge or expertise: see Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [53] (Gaudron and Gummow JJ); Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 [242].
…
The second question which must be addressed is whether the proposed witness has expertise in the relevant field by reason of specific training, study or experience: Makita (Australia) Pty Ltd v Sprowles[2001] NSWCA 305; (2001) 52 NSWLR 705 [85] (Heydon JA).
(See also Bonython v The Queen (1984) 38 SASR 45; (1984) 15 A Crim R 364, 365-366 (King CJ, with whom Matheson and Bollen JJ agreed)).
The issue of whether motor vehicle accident reconstruction is a field in which expert evidence may be allowed was considered by the Full Court in Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382. The Crown case against Mr Button was that he ran down the victim with his motor vehicle. One of the issues considered by the Full Court on the petition for the exercise of the Royal Prerogative of Mercy was whether forensic evidence should be received as new or fresh evidence in the application. Malcolm CJ (with whom Wallwork and Owen JJ agreed on this point) held that the expert forensic evidence in relation to vehicle collisions with pedestrians would not have been available in 1963 or 1964 and was thus fresh evidence which could be, and was, admitted ([189]). The Chief Justice observed that the 'the purpose of traffic crash or collision reconstruction is the application of the science of physics to determine how the crash or collision occurred, the factors which led up to the crash or collision, what happened during it and what occurred after it as a direct result' ([60]). The Chief Justice observed that the expert had made the point that, 'in vehicle impact reconstruction, reliance is placed on objective factual information rather than the testimony of witnesses such as tyre marks, broken glass and bent metal' ([172]). The analysis carried out by the expert included an analysis of the photographs of the motor vehicle said to have been used in the hit and run ([66]).
The Chief Justice accepted that motor vehicle accident reconstruction could be the subject of expert evidence. In relation to the expert in question, a Mr Haight, the Chief Justice concluded ([166] – [167]):
In my view, Mr Haight's knowledge, experience and expertise, as detailed in his evidence, does form part of a body of knowledge and experience which is sufficiently organised to be recognised and accepted as a sufficiently reliable body of knowledge and experience to qualify him to give evidence as an expert in relation to the analysis of vehicle/pedestrian impact data which qualifies him to give relevant expert evidence to the Court.
In particular, I am persuaded that the methodology adopted in the tests which he carried out is designed to provide an illustration of and assist analysis of what happens in vehicle impacts upon collision with a pedestrian. Further, I am satisfied that Mr Haight should be accepted as an expert in the relevant field. Finally, for present purposes, I am satisfied that Mr Haight's opinion, insofar as it is relied upon by this Court, is sufficiently based upon admissible evidence, coupled with his expertise and experience in the relevant field: cf Pownall v Conlon Management Pty Ltd (1995) 12 WAR 370.
The reasoning adopted by the Chief Justice is apposite to the present case, and the related issue of motor vehicle accident reconstruction when the collision involved two motorcycles. In particular, his Honour's observations as to the development of motor vehicle accident reconstruction as a discipline, and Mr Haight's teaching experience in this discipline, indicate the maturity of this body of knowledge and experience ([61] – [68]).
The conclusion to the contrary by Jackson SPJ in Nickisson v The Queen [1963] WAR 114, 116 should be regarded as superseded by the conclusions in Button, in particular given the Chief Justice's views as to the development of the discipline since 1963.
Counsel for Mr Pennington drew my attention to the following observations of Callinan J in Fox v Percy [149] – [151]:
I return to the facts of this case. Here Mr Tindall was described by counsel for the appellant as an 'accident reconstruction expert'. That is an ambitious claim. Three things may be said about the evidence in this case and running down cases generally. Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court. The engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged.
The second matter is the reception, apparently without question, of the whole of the contents of the expert reports in this case. Some of the deficiencies to which reference has already been made would require that, either in law, or in the proper exercise of a discretion, much of them should have been rejected. In the long run the undiscriminating tender of inadmissible, unreliable or valueless evidence, the acquiescence in its tender by counsel on the other side, and its reception into evidence, will prolong and increase the costs of trials … It will increase the margin for judicial error as occurred here, and will also lead to uncertainties and difficulties in courts of appeal. No court is bound to accept evidence of no probative value and evidence of slight probative value will rarely provide a foundation for any confident finding of fact, particularly if strong contrary evidence is available.
The third matter to which reference should be made is that touched upon by Beazley JA in the Court of Appeal, the adversarial stance taken by Mr Tindall. This is very much to be regretted. It also might have been basis enough for the rejection of his evidence. What was said in the tenth edition of Phipson on Evidence and earlier editions before enactment of the Civil Evidence Act 1972 (UK), and notwithstanding the enactment of the Evidence Act 1995 (NSW) remains relevant [166]:
'Value of Expert Evidence. The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of pre-conceived theories; moreover, support or opposition to given hypotheses can generally be multiplied at will. [167].'
I take these comments to be an injunction to apply the general rules of evidence as regards the admission of expert evidence with particular care in accident reconstruction cases.
In Hatziandoniou v Ruddy [2015] NSWCA 234, the New South Wales Court of Appeal overturned the decision of the trial judge to exclude expert evidence dealing with motor vehicle accident reconstruction on the basis that the expert did not have sufficient expertise in the particular aspect of the reconstruction in issue (fluid dynamics): [41] – [45] (Simpson JA, with whom Basten and Leeming JJA agreed). It was accepted without comment that motor vehicle accident reconstruction could be the subject of expert evidence.
Having now had the opportunity to review the issue in detail, I remain of the view that I expressed at the conclusion of the voir dire that motor vehicle accident reconstruction may be the subject of expert evidence. More specifically, using the language of the Court of Appeal in Silich, I am of the view that motor vehicle accident reconstruction:
(a)is a matter about which ordinary persons are unable to form a sound judgment without the assistance of those possessing special knowledge or experience or expertise in the area; and
(b)is an area in which there is a body of knowledge which is recognised as a reliable body of knowledge or expertise.

Do the experts have relevant expertise?

In looking at the expertise of the witnesses, I am not to take an unduly narrow approach: Hatziandoniou [44].
Mr Simms' curriculum vitae is exhibit P15. He is a mechanical engineer with 27 years of experience in private practice as an independent consulting engineer. He has extensive experience as an expert witness. His prior experience relevantly includes 12 years as the engineer in charge of the Police Department's Licensing Division. I am satisfied that Mr Simms has the requisite degree of expertise to provide an expert opinion on motor vehicle accident reconstruction.
Mr Davey's curriculum vitae is exhibit P21. He has been working in the field of motor vehicle accident reconstruction since the 1990s, and has provided expert evidence on numerous occasions in many jurisdictions over the past 20 years. He is also involved in teaching in the area. I am also satisfied that Mr Davey has the requisite degree of expertise to provide an expert opinion on motor vehicle accident reconstruction.
Counsel for Mr Pennington did not submit that the evidence of the experts should not be accepted on this basis (ts 361 ‑ 362).

Is there a sufficient factual basis for the expert opinions?

As to the third precondition from Town of Mosman Park, for the opinion of an expert to be admissible, the expert must either prove by admissible means the facts on which the opinion is based or explicitly state the assumptions as to the facts on which the opinion is based, which must in turn be proven by admissible evidence: Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, 87 ‑ 88 (Mason ACJ, Wilson, Brennan, Deane & Dawson JJ); Town of Mosman Park [63]; Automasters Australia [29]; Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, 387 (Anderson J). This requirement does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based: Paric (87 ‑ 88). Where an expert opinion is based entirely on inadmissible evidence, the opinion will itself be inadmissible Automasters Australia [29]; Pownall (378). Similarly, where the inadmissible evidence is so intertwined with the admissible evidence that they cannot be separated, the whole body of evidence will be rejected. However, where the inadmissible evidence can readily be ascertained and discarded, leaving admissible evidence in support of the opinion, the opinion should be admitted, subject to weight: Automasters Australia [29]; Woods v The Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217, 268 – 269 [230] ‑ [234] (Murray AJA); Pownall (378). It will then be a question of fact whether the case on which the opinion is based is sufficiently like the one under consideration to render the opinion of the expert of any value: Paric (87 ‑ 88).
As I have noted, the expert evidence in the present case may be divided into three categories, of which only the second and third are in issue.
As to the second category, the factual basis relied on for the observations and inferences was a number of photographs of Mr Algeri's motorcycle and Mr Pennington's motorcycle immediately after the collision. Each of the photographs relied on was proven and tendered as an exhibit, specifically exhibits P4, P7, P8 and P9. Mr Simms stated that he also relied on the information provided as to the order of the riders on the road (ts 130). There was also some reliance on the final resting positions of Mr Algeri and Mr Pennington and their respective motorcycles. Further, as discussed below, the evidence at trial, in particular from the witnesses called by Mr Pennington, was put to each expert witness. I am satisfied that the opinions of each expert on this point are based on admissible evidence, and that the evidence on which their opinions were based is sufficiently close to the facts which I have found to render their opinions admissible.
In relation to the third category, the opinions as to where the collision occurred also relied on the photographs and the evidence as to the final resting position of the motorcycles. I am satisfied that the evidence on which Mr Simms and Mr Davey gave their opinions was sufficiently close to the facts which I have found to render their opinions admissible.

Is the reasoning sufficiently transparent?

As to the fourth precondition, the process of inference that leads to the opinion must be stated or revealed in a way that enables the conclusion to be tested and a judgment made about its reliability: Town of Mosman Park [63]; Pollock v Wellington (1996) 15 WAR 1 (3 ‑ 4) (Anderson J); Pownall (390); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743 ‑ 744. The expert must 'furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusion': Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180 [70] (McLure P, Buss & Newnes JJA agreeing). In Makita, Heydon JA described this requirement as being that 'the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded': Makita (743 ‑ 744 [85]); Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 604 [36] ‑ [37], 605 [41] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); Woods ([230]); Kalbasi v The State of Western Australia [2013] WASCA 241 [88] (Mazza JA, Martin CJ & Buss J agreeing). Heydon JA went on to state that if these matters were not made explicit, 'the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight': Makita (744 [85]). In Pollock v Wellington Anderson J observed that 'unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight': (4).

In my view, by the conclusion of the process of examination‑in‑chief, cross‑examination and re‑examination, the reasoning process adopted by Mr Simms and Mr Davey was sufficiently transparent to render their opinions admissible. I will determine whether their opinions are reliable and persuasive below in the context of the evidence as a whole.

What conclusions may be drawn from the damage to the motorcycles?

In contrast to the photographs of the collision scene, the photographs of the damaged motorcycles require expert evidence. The following observations of Lord Reid in C Van Der Lely NV v Bamfords Ltd (1962) 1A IPR 86, 89; [1963] RPC 61, 71 are apposite:
Lawyers are expected to be experts in the use of English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter of evidence. Where the evidence is contradictory the Judge must decide but the Judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witness appears to be most worthy of acceptance.
These comments were cited with approval by Campbell AJA in Stillwell Trucks v McKay [2002] NSWCA 292 [71] (with whom Handley and Beazley JJA agreed) and Harrison J in Browning [116].
Mr Simms placed reliance on the photographs which are exhibits P7, P8 and P9. He made five observations from the photographs (ts 138 ‑ 144). The first was that the rear wheel of Mr Pennington's motorcycle had been displaced to the left at the top of the wheel with the rear suspension swing arm appearing to have been twisted and also displaced to the left. Several rear wheel spokes appeared broken with the rear disk brake rotor absent and assumed to be broken as a result of the collision.
The second was that the muffler located under the rear mudguard on the right‑hand side of the motorcycle appeared to have been pushed to the left. The side of the muffler appeared to show fresh rubber deposits consistent with a tyre contacting its side.
The third was that a plastic 'Pelican' case fitted to the rear of the parcel frame above the rear mudguard of the motorcycle had a large section of the rear face missing.
The fourth was that the rear mudguard located above the rear wheel appeared to have been twisted in a clockwise direction when viewed from the rear.
The fifth observation was that the number plate was missing from the rear mudguard, although the number plate mounting bracket was shown and may have been torn off during the collision.
Mr Simms then came to the following conclusions as to the angle of impact, reading from his report with elaboration (ts 145, 146, 147):
Considering the above observations, it is possible to determine the likely mode of impact which, in my opinion, is consistent with a heavy lateral impact by a tyre focused at a point just rearward of the centre of the rear wheel….
All right. And then you go on to make comments about the rubber mark or the appearance of the rubber marks on the defendant's exhaust pipe? - - -Yes. I've said:
The presence of what appears to be rubber marks on the defendant's exhaust pipe is of interest as it appears to be at a height -
‑ 'located which' ‑
‑ height and location which corresponds to the front wheel of the plaintiff's motorcycle. This, together with the distortion of the rear wheel of the defendant's motorcycle, is consistent with the vehicles having collided at or close to right angles, as alleged by the plaintiff.
All right. Now, in terms ‑ you're not saying an absolute right angle, are you? - - - No, I'm not saying an absolute right angle. And obviously saying "close to" begs the question: what does that actually mean?
Yes? ‑ ‑ ‑ It would be very difficult to put a figure on it without seeing the vehicles and ‑ and having more precise dimensions, but I would expect a latitude of no more than 10 dgrees either side of a 90 degree contact.
So somewhere between 80 to 100 degrees? - - - Yes, somewhere between 80 to 100 degrees.
And if it was outside that margin, what would you expect the - the movement of the vehicles to be following collision? - - The movement of the - if it was outside that margin ‑ ‑ ‑
Yes? - - - the movement of the vehicles may well be somewhat similar except that - that the closer - sorry, the further away from 90 degrees the plaintiff's motorcycle gets, a number of things would happen. When the impact occurs, and as I - I think I said yesterday, the impact was - had considerable force. It has sufficient force to bend the forks of the plaintiff's motorcycle backwards. So there's a high force being exerted. It's probably intuitively obvious that the defendant's motorcycle is starting to roll on its side at this point. It's being pushed over by - by the impact.
Mr Simms also made four observations on the damage to Mr Algeri's motorcycle, based on the photograph that is exhibit P12 (ts 153 ‑ 154). First, the primary damage to the motorcycle appeared to be focussed on the front wheel and steering suspension forks, with the forks bent backwards towards the motorcycle frame. This would be expected following a direct impact as opposed to a glancing impact with a solid object. In cross‑examination, Mr Simms explained that a shallow impact would have turned the front wheel, and would have been unlikely to have bent the forks (ts 188).
The second observation was that the front wheel appeared to be heavily damaged with the tyre appearing to be deflated following impact, again consistent with a direct collision.
The third observation was that the front fairing, handlebars, wing mirrors and indicator lamps on both sides of the motorcycle were damaged to the same apparent degree.
The fourth observation is that the vehicle appears to have slid on its side for some distance with evidence of sliding marks and general abrasion.
Mr Simms clarified that when he was referring to a direct impact in these observations, he was referring to an impact square on, an impact within 80 to 100 degrees, as distinct from a glancing impact.
Mr Simms then offered the following opinion (ts 154):
Then you come to a – you come to a conclusion or an opinion? - - - Yes. I say:
The damage observed above is consistent with the front of the plaintiff's motorcycle having collided heavily with the right side of the defendant's motorcycle in a direct side-on impact as opposed to a glancing collision from the rear.
Again, when you refer to 'direct side-on' what are you referring to? - - - A – a 90 degrees or close to 90 degrees impact.
Thank you.
? - - - The only way the front forks could be bent backwards to the degree evident would be either as a result of a side-on impact or as a result of a perfect engagement between the front wheel of the plaintiff's motorcycle and the rear wheel of the defendant's motorcycle while both vehicles were generally in line. If such a perfect engagement had occurred, the bending over of the rear wheel of the defendant's motorcycle would not have occurred.
In cross-examination, Mr Simms said that an angle of more than 90 degrees could be excluded (ts 174). He reiterated several times the reasoning that led him to conclude that the angle of impact was at or close to 90 degrees (ts 173 ‑ 174, 183).
Mr Davey placed particular reliance on exhibit P9, which is a photograph of Mr Pennington's motorcycle from the rear. From this photograph, he made the following observations:
7.2The Suzuki
Damage sustained primarily to the rear of the Suzuki, comprising of the following:
•Sub-frame twisted.
•Rear wheel and rear brake assembly skewed anti‑clockwise, several spokes bent/snapped.
•Right side of rear mudguard bent downwards.
•Muffler displaced inwards (left).
•Rear light assembly appears to be missing and indicator hanging loose.
•Front handlebars possibly twisted.
•Narrow black scuff mark on right side of muffler.
•Black scuff mark on right side of rear tyre wall.
•No obvious sign of contact damage to right side of fuel tank.
As to the scuff mark on the right side of the muffler, Mr Davey added the following observations in cross‑examination (ts 219, also ts 235):
… that black scuff mark on the exhaust is important evidence as far as I'm concerned because the exhaust, or the muffler, is a very shiny object with a very low coefficient of friction. If there is any angle of impact towards the front of that bike, it would've slid down that muffler and you would see the – the mark going right down that – the length of that muffler as opposed to being contained with a very, very small area. But to me, that mark is – is critical in the analysis of this crash.
In relation to Mr Algeri's motorcycle, Mr Davey made the following observations, based on the photograph which is exhibit P4:
7.3The Honda
Damage primarily sustained to the front and left side of the Honda, comprising of the following:
•Front forks bent rearwards.
•Front fairing and mudguard both smashed.
•Handlebar twisted and out of alignment.
•Scrape marks on end of handlebar grip – left side.
•Dents and scrape marks on left side of fuel tank.
•Oil appears to be leaking from engine.
•Speedometer and mirrors detached.
From these conclusions, Mr Davey was of the opinion that the impact was close to perpendicular:
7.4Conclusion
The damage would indicate that the rear of the Suzuki has experienced a lateral impact force from the right. While there is no direct evidence that the black scuff mark visible on the Suzuki's muffler is the result of contact with the front tyre of the Honda. It is certainly a possible and probable cause. Assuming this is the case, the fact that the scuff mark on the Suzuki does not extend towards the front or rear of the motorcycle would tend to suggest a close to perpendicular impact.
…
9.2The forensic evidence, namely the damage to both motorcycles and the post‑impact position of the Honda, is entirely consistent with the following scenario. That the Plaintiff was travelling west on Jarrahdale Road overtaking the Suzuki to the right. The Suzuki, also travelling west on Jarrahdale Road, then turned right and into the path of the Plaintiff. The angle between the vehicles at impact was approximately 90 degrees.
There is a high level of consistency between the observations of Mr Simms and the observations of Mr Davey as to the damage to both motorcycles. Having been drawn to my attention, I am able to observe the damage which they describe. Their expertise is in the interpretation of the damage (a point made by Mr Davey – ts 218).
It is readily apparent that Mr Simms and Mr Davey each came to the same conclusion as to the angle of impact, that it was 'close to right angles', 'direct side‑on', between 80 and 90 degrees, 'close to perpendicular' and approximately 90 degrees. In summary terms, this conclusion is based on the following facts:
(a)the damage to the rear of Mr Pennington's motorbike is consistent with a heavy lateral impact focussed at a point just rear of the centre or axle of the rear wheel;
(b)the black scuff mark on the muffler, which does not extend towards the front or rear of the motorcycle, is consistent with the front tyre of Mr Algeri's motorcycle riding straight up over the back wheel, muffler and Pelican box – an impact other than at approximately right angles would have caused the front wheel to have skidded along the muffler one way or the other, extending the width of the scuff; and
(c)the front wheel and steering suspension forks on Mr Algeri's motorcycle were bent backwards towards the motorcycle frame – an impact other than at approximately right angles would have simply turned the wheel, as opposed to bending the forks.

What is the expert evidence as to where the accident occurred?

Mr Simms commenced his opinion with the following caveat (ts 133):
It is not possible to determine from the provided information whether the defendant was indicating to turn right or the precise locations of the subject motorcycles immediately prior to the collision. It is, however, possible, by considering the likely interaction of the vehicles, finding the final resting positions of the motorcycles and through observing the damage sustained in the accident to propose the likely sequence of events leading to the collision.
In relation to the position where the collision occurred, Mr Simms gave the following evidence in examination-in-chief (ts 133 ‑ 134):
The fact of where the two riders came to rest told me that a collision in the westbound lane was a logical conclusion, simply because if the collision had occurred in the eastbound lane, the plaintiff would not have ended up on the south side of the road.
And what is the reason for that that's ‑ ‑ ‑?‑‑‑Because ‑ ‑ ‑‑ ‑ ‑ based on your expertise and experience?‑‑‑Yes, because any moving objects ‑ and it doesn't matter whether it's a ‑ a bullet or a motorcyclist ‑ when they're in free flight, if you like, when they ‑ when two vehicles have collided and they've part separated, and clearly ‑ clearly they did separate, they will go in the direction in which they had initial momentum, only deflected by any momentum they gather from the other vehicle.
Yes?‑‑‑What ‑ because the collision would have been over very, very rapidly, and typically a collision of this type is over in less than a 10th of a second, at 90 kilometres per hour the vehicles are travelling at something like 24, 25 metres a second. A collision like this ‑ or the ‑ the total distance during which the collision occurs is going to be less than a metre so logically it'd be sort of in the order of a 20th of a second. But it's a very, very short period of time. The two vehicles will then part company and they'll keep on in the direction where ‑ where there's dominant momentum. A motorcycle travelling at 90 kilometres an hour has got a very high momentum. A vehicle driving across the road at probably a speed of maybe, you know, 5, 10, 12 kilometres an hour at most will have a very low level of momentum. So the vehicle with the high level of momentum will tend to travel in the direction it was going at prior to the collision.
Right?‑‑‑Now, if ‑ to have a collision in the eastbound lane the plaintiff would have had to veer into the eastbound lane clearly to be there to have a collision.
Yes?‑‑‑That would then give his direction heading towards the northwest. And he didn't end up in the northwest, he ended up in the southwest.
Mr Simms concluded his examination‑in‑chief with the following opinion (ts 159 ‑ 160):
All right, can you tell us what they were?‑‑‑Yes. Again I'll simply read the conclusions:
Considering the size of the two motorcycles involved and the degree of frontal impact damage observed, it is my opinion that the plaintiff's motorcycle collided with the side of the defendant's motorcycle, striking it at or near right angle, slightly rearward of the centre line of the rear disk brake.
Just to clarify that, the disk brake's coaxial with the wheel, so it' the centre of the wheel, if you like.
Right?‑‑‑
This is consistent with the defendant turning across ‑
- there's a typographical error - - -
'The plaintiff's path'?‑‑‑
- - - with the defendant turning across the plaintiff's path, but not consistent with a direct rearward collision. The damage to the motorcycle observed in the supplied documentation, when considered alongside the witness statements, and in light of the final resting locations of the motorcycles following the collision, it is, in my opinion, consistent with the description of events provided by the plaintiff, being that the defendant's motorcycle presented at or near right angles to the path of travel of the plaintiff, with the plaintiff's front wheel directly striking the defendant's motorcycle along a line just rearward of the rear wheel centre line.
The road section approximately 200 prior to the apparent collision point appearing straight and affording good visibility at the time of my inspection, with the plaintiff travelling at a speed of 90 kilometres an hour, it would take approximately seven to eight seconds to cover this distance which, when considering accepted published reaction times, would afford ample time to slow sufficiently to avoid a collision with the defendant.
Well, just stop there, 'to avoid a collision'. I think we just stop there?‑‑‑Right.
And you noted something about the absence of skid marks indicated something?‑‑‑Yes. The absence of a skid mark indicates that - it doesn't indicate that no braking took place. It doesn't - I'll put it this way: it doesn't prove that no braking took place. But in a situation like this, if braking took place, it would almost certainly be emergency braking, and in the absence of a skid mark it's reasonable, in my view, to conclude that no braking occurred, which is consistent with what the plaintiff has said.
There were two main contentions which counsel for Mr Pennington sought to develop in cross‑examination, consistent with the evidence which would be given by the witnesses for the defence. The first was that the close to right angle collision point could have been formed by Mr Algeri's motorcycle being at an angle to the centre line of the road. The second was that the point of collision was in the eastbound lane. Mr Simms rejected each contention.
In relation to the first contention, I discern the following reasoning by Mr Simms:
(a)at speed, it is not possible to make a sharp turn on a motorcycle, only a gradual one over a long distance (ts 178);
(b)it is not possible for Mr Algeri on a motorcycle travelling at a speed of 90 km ‑ 100 km per hour to have come in at any angle to Mr Pennington's motorcycle (ts 183);
(c)if Mr Algeri had veered at an angle, he would have gone across the road (ts 175); and
(d)in order to create a 90 degree impact in the eastbound lane with Mr Pennington not at right angles to the road, Mr Algeri would have had to have veered 'way over to his right and then suddenly dived in back to the left', which is not plausible (ts 176);
In relation to the second contention, that the point of collision was in the eastbound lane, I discern the following reasoning by Mr Simms:
(a)at the point of impact, Mr Pennington's motorcycle was moving reasonably quickly as that is the only logical way in which he could wind up on the north side of the east bound lane (ts 176);
(b)the momentum of Mr Algeri's motorcycle was far greater than the momentum of Mr Pennington's motorcycle (ts 184);
(c)the momentum of Mr Algeri's motorcycle was in a westerly direction (ts 184);
(d)the striking of Mr Pennington's motorcycle would have caused some interruption to the momentum of Mr Algeri's motorcycle, but it would have continued in a westerly direction up the road (ts 184);
(e)at the point of impact Mr Algeri and his motorcycle separated and became 'projectiles' with their momentum taking them off at whatever angle or direction they were travelling at the point of impact (ts 178, 184);
(f)there is research on the tumbling of riders from motorcycles indicating that they predominantly travel in a straight line (ts 185);
(g)if the collision occurred in the westbound lane, he would expect Mr Algeri to have ended up on the left-hand side of the road, close to the middle (ts 184);
(h)if the point of collision was in the east bound lane, the 'worst case scenario' is that Mr Algeri (and his motorcycle) would have skidded and tumbled down the middle of the centreline, but would not have ended up on the southern verge (left‑hand side) of the road (ts 183, 185);
(i)if the road had a camber to the left, it would have had a negligible impact on the rolling or tumbling of vehicles or people - in any event, the road had very little camber (ts 186); and
(j)even if it is found that Mr Algeri took some steps off the road after he finished tumbling, this could not have occurred to the motorcycle, which would have slid consistent with its initial direction of momentum (ts 178, 186).

Mr Pennington's conduct was of far greater relative importance in the cause of the collision. In particular, given that Mr Pennington started to turn from the very edge of the tarmac on the left‑hand side of the road and the suddenness of his right turn, even braking by Mr Algeri may not have prevented the collision. I consider that it is just to reduce the amount of damage that Mr Algeri may claim by the amount of 20% to reflect the degree of negligence attributable to him.
Turning to the counterclaim, it is clear that Mr Algeri owed Mr Pennington a duty of care. However, it does not automatically or axiomatically follow from the finding of contributory negligence against Mr Algeri that he breached the duty of care he owed to Mr Pennington: Astley [21]. This inquiry is independent.
In his counterclaim, Mr Pennington repeats the same particulars of negligence as he asserted in the context of the pleading of contributory negligence (Defence and Counterclaim [7]). For the purposes of CLA s 5B(1)(c), I consider that a reasonable person in Mr Algeri's position would have the same knowledge of the circumstances as Mr Algeri. In particular, the reasonable person would have the knowledge that for the preceding 3 km ‑ 4 km, Mr Pennington had been riding erratically. In my view, the reasonable person in Mr Alegri's position would have taken the precaution of commencing braking upon cresting the hill and seeing the two lead trail bike riders suddenly slow down and pull over to the left‑hand side of the road. Again, the observations of Gummow, Kirby and Hayne JJ in Manley [11] ‑ [12] are apt.
In his defence to counterclaim, Mr Algeri does not plead contributory negligence against Mr Pennington. The case was, however, fought on the basis that both parties had alleged contributory negligence (ts 323). Accordingly, I am able to determine the issue: 3MEG.com Pty Ltd v TM & SM Pike Pty Ltd (2012) 43 WAR 350; [2012] WASCA 128 [66] – [80] (Murphy JA, with whom Pullin and Newnes JJA agreed). In my view it is just to reduce the award of damages against Mr Algeri by 80% on the basis that Mr Pennington 'contributed to his ... own loss by failing to take reasonable care of his… own person': Astley [30]. In particular, Mr Pennington failed to properly look before turning right across the path of Mr Algeri's oncoming motorcycle. He also failed to indicate, or sufficiently indicate his intention to make a right turn. Further, he commenced to turn when it was unsafe to do so.
The net result is that:
(a)Mr Alegri succeeds on his claim, though his damages are to be reduced by 20% on account of his contributory negligence; and
(b)Mr Pennington succeeds on his counterclaim, with his damages being reduced by 80% on account of his contributory negligence.