Andonopoulos v Rainbow - [2018] SADC 53

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ANDONOPOULOS & ANOR v RAINBOW
[2018] SADC 53
Judgment of His Honour Judge Barrett
1 June 2018
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - FAILURE TO LOOK-OUT - GENERALLY
First plaintiff claims damages for leg injuries suffered when B-double driven by the defendant impacted the side of his bicycle and ran over him. The issues are whether the defendant was negligent in failing to keep a proper look out and if so is the plaintiff guilty of contributory negligence.
Held: the defendant was negligent in failing to keep a proper lookout. The plaintiff was guilty of contributory negligence to the extent of 20%.
Civil Liability Act 1936 (SA), referred to.
West v Government Insurance Office (1981) 148 CLR 62; Jones v Dunkel (1959) 101 CLR 298; Cooper v Hobbs [2013] NSWCA 70; Mocatta v Leal [1993] SASC 4041; Spence v Demasi (1998) 48 SASR 536; Murray's Transport NSW Pty Ltd v CGU Insurance (2013) 118 SASR 11; Stoeckel v Harpas (1971) 1 SASR 172; Walton v Rowbottom (unreported, Supreme Court, SA, von Doussa J, No 2591 of 1986, 17 September 1986), considered.

ANDONOPOULOS & ANOR v RAINBOW
[2018] SADC 53

The plaintiffs seek damages from the defendant arising from a collision between the male plaintiff’s bicycle and the B-double truck driven by the defendant. The collision occurred on South Road, Thebarton at about 5.20 am on Thursday the 14^th of December 2006. I will refer to the male plaintiff simply as the plaintiff. The plaintiff was 40. He was riding his bicycle from his house in North Road, Torrensville to the depot of Direct Mix Concrete in Musgrave Avenue, Welland, where he was to collect his concrete truck for the day’s work. He was a self-employed subcontract driver. His journey would take about 10 minutes. He had left home at about 5:15 am.
The defendant was 55. He was driving the Volvo prime mover he had been driving for about 10 years. He was towing two trailers, the first shorter than the second. He had been driving B-doubles for 15 years but had been an interstate truck driver for longer than that. He had been making twice weekly trips between Melbourne and Adelaide for years. On the morning of the collision he was almost at the end of his second journey from Melbourne. He was 15 minutes from his destination in Royal Park. He had returned to Melbourne from his first trip that week at about 7 am the previous day. He had slept during the day and then left Laverton on the western side of Melbourne at about 8 pm on the 13^th of December. He had taken a half hour break at Nhill which he reached in about four hours. He had then driven for about five and a quarter hours before reaching South Road, Thebarton. It was still dark there around 5.20 am.
The collision
The collision occurred on a straight stretch of South Road between Ashley Street and Ashwin Parade, Thebarton. The defendant was travelling in a northerly direction in the left lane of two northbound lanes divided by a broken white line. There were traffic lights ahead of him at Ashwin Parade. On the western side of South Road, to the defendant’s left, there was a car park adjacent to the Thebarton oval and Kings Reserve. Next to the southern side of Kings Reserve there were two driveways leading from the car park to South Road. The driveways were separated by a median strip. The plaintiff had ridden his bike through the general area of the car park. He could then make his way to South Road by riding along either of the two driveways, the northern or the southern driveway. The southern driveway had a “no exit” sign facing him but there is no suggestion that if the plaintiff rode along that driveway he was negligent in doing so. There is however a dispute about which of the driveways he used.
The plaintiff said he used the southern driveway. One defence hypothesis, although not the only one, is that the plaintiff used the northern driveway. The exact circumstances of the collision are very much in dispute. Whether the plaintiff stopped before entering South Road is contested. The circumstances of the collision determine the question of liability of each of the plaintiff and the defendant. More aptly they determine whether the plaintiffs can prove that the defendant was negligent in that he failed to keep a proper lookout. If the defendant is negligent, was the plaintiff himself guilty of contributory negligence by failing himself to keep a proper lookout? What is not in dispute is that at a point in South Road, proximate to the two driveways, the right-end of the plaintiff’s handlebars came into contact with some part of the truck, probably the side of the second trailer. The plaintiff fell off the bike onto the road. A wheel or wheels at the back of the second trailer ran over his left leg causing so serious an injury that the leg had to be amputated below the knee. The plaintiff came to rest on South Road near the northern alignment of the northern driveway. The defendant says he did not see the plaintiff before the collision. His attention was first attracted to his left rear-vision mirror in which he saw something flying out from near the back of the rig. He braked and brought the rig to a stop short of the traffic lights at Ashwin Parade. He went back to where the plaintiff was lying in the road. By then a woman was rendering assistance to the plaintiff. The plaintiff was still conscious. He was spoken to by the woman and later by a police officer and others who came to the scene including his wife, the second plaintiff. He was taken to hospital by an ambulance. The defendant spoke to police at the scene and was subjected to tests for alcohol and drugs which all proved negative. He had not taken any alcohol or drugs.
Issues in the trial
This is a re-trial following a successful appeal by the plaintiff to the Full Court.[1] This trial, like the first trial, is to determine liability only. The first plaintiff seeks damages for his injuries. The second plaintiff, his wife, seeks damages for consortium and psychological injuries.
[1] [2015] SASCFC 186.
The issues for determination are:
1Was the defendant negligent by:
i)Failing to see the plaintiff before the collision?
ii)Failing to take action to avoid colliding with the plaintiff?
2If the defendant was negligent, was the plaintiff guilty of contributory negligence?
3If the plaintiff and the defendant were both negligent, what is the apportionment of liability?
The burden of proving negligence rests upon the plaintiff. If the plaintiff discharges that onus the defendant must prove contributory negligence (West v Government Insurance Office (1981) 148 CLR 62 at 66).
Competing Hypotheses
The parties propose different hypotheses for the circumstances of the collision. The plaintiff says that when he reached South Road along the southern driveway he stopped his bike and looked south. He waited until a truck went past. He then noticed the defendant’s truck in the distance, about 200 metres away. He concluded it was safe for him to move into South Road. He did so and pedalled north keeping close to the western kerb. He said he rode within 10 cm of the gutter.[2] He said this was his routine.[3] I pause to say that on that part of South Road the margin for error for the plaintiff and the defendant was very slight. The left-hand northbound lane was between 3.6 and 3.8 metres wide. The defendant’s truck was 2.4 to 2.5 metres wide. The width of the plaintiff’s handlebars was of the order of .60 metres. In these circumstances the margin for error was between 50 and 80 cm. In other words the vehicles themselves occupied all but .5-.8 metres. If the plaintiff was 10 cms away from the kerb the margin was between 40 and 70 cms. From the dimensions of the lane and the vehicles it appears that if the truck were to be driving in exactly the middle of its lane there was between 55 and 70 cm separating the left side of the truck and the western kerb. Effectively the truck would have to move to the right side of its lane to avoid making contact with the plaintiff’s bike. The narrowness of that part of South Road placed a high degree of care on both the plaintiff and the defendant. The plaintiff had to be aware of his vulnerability as a cyclist and he had to keep as close to the kerb as he could. He had to give a reasonable opportunity for oncoming traffic to see him. The defendant had to be particularly vigilant about the danger posed by his large vehicle in the roadway. In particular he had to be alert to whatever opportunities he had to move to the right, possibly some way into the right lane, to avoid colliding with a cyclist on his left.
[2] T60 and 65.
[3] T60.
The plaintiff says that as he was riding along, part of the truck came into contact with his bike. He fell to the ground and his left leg was run over by a wheel or wheels of the truck. The plaintiff’s hypothesis is that he was riding along South Road in such a position on the road that gave the defendant ample opportunity to see him and avoid the collision. He had come on to South Road giving the defendant ample time to see him. He and his bike were sufficiently illuminated so that the defendant should have seen him. He was wearing a hi-vis vest and there were sufficient lights on his bike. Although it was dark at the time there were street lights on both sides of South Road. The defendant had his headlights on. The defendant could have avoided the collision by braking or turning to the right. There is no evidence suggesting he could not move to the right.
The evidence would tend to suggest that the defendant did not see the plaintiff at all before the collision. The defendant says he did not see the plaintiff. Although some expert calculations suggest the defendant might have seen the plaintiff before he said he did, it is clear that he took no evasive action. There is no evidence to suggest the truck braked suddenly or veered to the right. The plaintiff’s hypothesis suggests that the defendant was negligent in that he failed to keep a proper lookout.
The defendant’s hypotheses are that the plaintiff either rode into the side of the truck from one of the driveways without stopping or alternatively, he rode out onto South Road giving the defendant insufficient time to notice him and to take evasive action. The defendant did not fail to keep a proper lookout. The plaintiff either ran into the side of his truck or gave him no reasonable opportunity to avoid the collision. In the event that the defendant is guilty of contributory negligence, each party submits that the apportionment of liability should be substantially against the other party. Each party called two expert witnesses. The plaintiff called Mr Graham England and Dr Thomas Gibson. The defendant called Mr Michael Griffiths and Mr Chris Hall.
Plaintiff’s evidence
The plaintiff was 40 at the time of the collision in 2006. He was married and had two children then aged about 8 and 5. He left school at Year 10. He found school work challenging. He has difficulties reading.[4] After leaving school he worked as a kitchenhand and a truck fitter with Isuzu trucks. He was a car detailer with Adelaide Motors BMW on West Terrace in the city for about 15 years. In 2006 he purchased a concrete truck and became a self-employed contractor with Direct Mix Concrete whose depot in Welland was where he kept his truck. He had owned the truck for about two months. The plaintiff had ridden a bike to work when he was employed by Adelaide Motors and he continued doing that when he became a contractor with Direct Mix. He rode a mountain bike to work. He had purchased the bike he was riding on the day of the collision about two months earlier. He said he also had a racing bike which he would ride in the Tour Down Under. He used the racing bike for ‘cardio work’. I conclude from this evidence that the plaintiff was an experienced cyclist who had an interest in riding. Cycling was more than a convenient way to get to work.
[4] T86.
I conclude from both the content of the plaintiff’s evidence and the manner in which he gave it that in 2006 he was a man of steady habits. He said he would start work anywhere between 5 am and 9.30 am depending, I take it, on the first concrete pour he was contracted to attend that day. He gave evidence of his morning routine. He said he would set his alarm clock two hours before he was due to start work.[5] He would allow himself an hour at home having breakfast and feeding his birds and an hour at work checking his truck and being prepared if he was unexpectedly asked to attend an early pour.[6] The plaintiff said that as he set off from home on the 14^th of December he saw his cousin Mr Bill Lathouros in the street nearby. Mr Lathouros was walking to his own workplace which was on South Road not far from the accident site. In fact Mr Lathouros had reached the accident scene where he spoke to the plaintiff on the ground after he was injured. Mr Lathouros was not called as a witness in this trial but his evidence in the first trial was tendered.[7] Mr Lathouros’s evidence is generally uncontroversial. He confirmed the plaintiff’s evidence about setting off to work and he confirmed generally aspects of the plaintiff’s visibility, i.e. his clothing and the lights on his bike. I would summarise the visibility evidence by saying that it was good for a cyclist. The plaintiff was wearing a hi-vis vest on the upper part of his body. He had on a backpack which had a mesh pocket on the rear. In that mesh pocket was a red light which operated in a flashing mode. Underneath the rider’s seat was a red reflector. Underneath the high rear mudguard was a flashing red light. There is a possibility that a motorist directly behind the bike might be unable to see this light because it might be obscured by the high mudguard. A motorist to the cyclist’s side should not have that difficulty. There are rear-facing reflectors on the pedals.
[5]    T50.
[6]    T61.
[7]    P6.
On each of the wheels of the bike there were reflectors attached to the spokes.
There was a reflector at the front of the bike in the centre of the handlebars. There was also a white light which contained three globes. That light could be set in one of three ways[8] – all three globes could be on continuously, they could be flashing on and off, and they could be operating sequentially so that one globe went on at a time in a continuous sequence. I understand the plaintiff to say that on this morning he had the front light in the continuously on setting.
[8] T52.
The bike was not tendered as an exhibit but it was present in court and the Police took photos of it.[9] The plaintiff indicated aspects of the bike from the witness box. The plaintiff wore a helmet and steel-capped boots.
[9] See Police photos, P1, tabs 25 and 26.
The plaintiff said he was due to start work on the 14^th December at about 6.30 am. He set out from home at about 5.15 am. The collision was at about 5.23 am. The plaintiff said he followed his usual route to work. He said he always went the same way. He had been cycling to the Direct Mix depot for about two months. Assuming a five day working week he might have made the journey about 40 times. He said that he used to work on Saturday mornings but it is not clear whether he worked six days a week or five. I conclude from that evidence that the plaintiff was familiar with the route, including its hazards. I also conclude that he might have made the journey at various times within the ambit of four and a half hours. He said his earliest start at work was 5 am and his latest was 9.30 am. I conclude it is likely that he had made the journey before at times similar to the journey on the 14^th of December. I conclude he was familiar with the traffic conditions he might encounter at that time.
The only part of the route taken by the plaintiff which is controversial is the driveway taken by him as he approached South Road. Was it the northern or the southern driveway? The plaintiff says he took the southern driveway. He says he always took that driveway. When asked why he took that driveway rather than the northern one he said that he had a better view of oncoming traffic from the southern driveway. I agree with the defence contention that the oral evidence and the photographs do not bear that out. There would appear to be no obstructions looking south from either driveway. The view south along South Road is the same.
The driveway from which the plaintiff rode on to South Road assumes importance in the reconstruction of the collision. The plaintiff came to rest on South Road at a point near the northern alignment of the northern driveway. The spot was indicated by a policeman placing a yellow circle on the road. I see no reason to doubt the accuracy of the circle. It was placed at a spot where there was a pool of blood consistent with the plaintiff’s leg injury occurring at that spot. There is however a degree of uncertainty about exactly how far that spot is from the northern alignment in the northern driveway. Although there are photographs showing the yellow circle there are none clearly showing the relationship between the circle and the northern alignment of the northern driveway. No measurement was taken by police. Nevertheless the evidence would suggest that the plaintiff’s injury occurred at a spot close to the northern alignment of the northern driveway.
If the plaintiff came along the northern driveway it becomes more likely that he rode into the side of the truck. That likelihood depends somewhat on the point of his exit from the northern driveway. The northern driveway is just under four metres wide. The closer his exit was to the northern alignment of that driveway the more likely it is that he rode into the side of the truck. If the plaintiff exited from the southern driveway then, again depending on the point at which he left that driveway, which is 4 metres wide, the more likely it is that he was travelling along South Road parallel to the truck when the collision occurred.
It is very likely that the bike came into contact with the truck about 10 metres from the rear of the second trailer. The rig consisted of a prime mover towing two trailers, the first shorter than the second. The whole rig was 25 metres long. There were three axles at the back of the second trailer. It is likely that the plaintiff’s leg was run over by the wheels of the last axle. There was blood on the mudguard behind the last wheels. Reconstruction evidence, together with a scuff mark on the side of the trailer observed by police at the scene, tends to suggest that the impact between the truck and the bike was at a point towards the front of the second trailer, 10 metres from the rear. A scuff mark was noted under the letter C in the brand name ‘Cope’ painted on the side of the trailer. The impact is likely to have been between the side of the trailer and the right end of the bike’s handlebars. There is a scuff mark on the right end of the handlebars. Otherwise there is no apparent damage to the bike apart from a distortion of the whole handlebar in an anti-clockwise direction. The likely mechanism of the collision is that the impact between the side of the trailer and the right-end of the handlebars caused the bike to twist anti-clockwise. The plaintiff fell to the ground and his left leg was run over by the wheels of the last axle of the second trailer. The plaintiff suffered only the most superficial injuries to the upper part of his body.

I return to the controversy about the driveway from which the plaintiff came onto South Road. The plaintiff points to several reasons why he should be believed about travelling along the southern driveway. They are as follows:
1He says he did. It was his routine;
2His wife gave evidence that sometime before the collision the plaintiff physically indicated to her that his normal route to work brought him out onto South Road from the southern driveway;
3Insofar as the exit from the northern driveway suggests he rode into the side of the truck, that scenario is unlikely;
4The reconstruction evidence favours the southern driveway exit.
I will defer for the moment discussion of the reconstruction evidence.
The weight of evidence of the plaintiff’s wife on this topic is not substantial. She said that she told a police officer at the scene that her husband had earlier shown her that he would come out onto South Road from the southern driveway. The police officer, then Constable, now Brevet Sergeant Horder does not recollect her being so specific. While I accept that the plaintiff may have indicated to his wife his route to work, including the exit onto South Road, I do not think there can have been a great deal of clarity about his indication. Apparently they were driving along South Road when the plaintiff pointed out the exit to his wife. However the two exits are close together. They are separated by a median strip only 4.5 metres wide. He would have had a very limited opportunity to clearly indicate to his wife which exit he meant and she would not have had much opportunity to comprehend what he was meaning.
I turn to the “likely scenario” reason. For reasons I will explain I think that it is unlikely that the plaintiff rode into the side of the truck. I accept Mr Trim’s observation that road users do sometimes do what is almost suicidal but there are several reasons why I think it unlikely that the plaintiff rode straight into the side of the truck. It is relatively clear that the point of contact between the bike and the truck was at a point alongside the second trailer about 10 metres from the rear of the rig. There was a scuff mark on the trailer at that point (the “C point”). The plaintiff was probably run over by the last of the three rear wheels of the trailer. The distance between the C point and the last axle is thought by the expert witnesses to be explained by the time it would take the plaintiff to fall to the ground and slide for a short while. If the plaintiff rode straight into the side of the truck at the C point then the front of the prime mover had moved 15 metres past him. The rig was 25 metres long. If that is the case then the plaintiff has failed to see the rig altogether. He has failed to see such a large well-lit vehicle which is right in his path. He has also failed to hear it. He has ridden onto South Road without looking up. He was a 40 year old experienced cyclist who was accustomed to riding along that route at that time of the day. I think it unlikely that he rode into the side of the truck.
Notwithstanding that unlikelihood, it is still possible that he came out of the northern driveway. The defendant’s experts say that it is possible that the plaintiff rode out of the northern driveway and swerved when he saw the truck. That trajectory would be more possible if the plaintiff’s exit was from the southern part of the northern driveway rather than the northern part. If he came from the southern part of the northern driveway he might have been travelling almost parallel to the truck before the collision, but even on that scenario he has failed to see or hear the truck. There was no suggestion that the plaintiff had any hearing deficits. He said he was healthy at the time and that evidence was not challenged. I have been told nothing about what, if any, effect a helmet might have had on his hearing.
I turn to the plaintiff’s evidence that he went along the southern driveway. I discuss his credibility. The defendant challenges the plaintiff’s credibility. The defendant argues that the plaintiff has given inconsistent accounts of the collision, particularly in respect of the route he took onto South Road but also other aspects as well. Although the defence written outline concedes that the plaintiff’s evidence in this trial is materially the same as it was in the first trial, inconsistencies emerge from the evidence and from reports of one the plaintiff’s experts, Mr England. The defendant submits that the plaintiff has changed his account to accommodate aspects of the first report of Mr Griffiths, one of the defendant’s experts.
In his first report, originally dated the 8^th of February 2012 but now redated the 5^th of April 2018[10] Mr Griffiths concludes that the plaintiff rode out of the northern driveway, collided with the first wheels of the second trailer and was run over by the third of those wheels. I will analyse that reasoning later but the defendant postulates that when the plaintiff became aware of this hypothesis he altered an earlier account he had given that he came out of the northern driveway. That earlier account is said to be evident in the initial instructions given by the plaintiffs’ then solicitors to Mr England. Mr England’s first report further complicates this issue by referring to subsequent instructions about bollards blocking the northern driveway.
[10] D25.
The plaintiff denies ever saying that he came out of the northern driveway.
The origins of the “northern driveway exit” account are difficult to find, but it may have been in the materials generated by the Police. The first suggestion of it appears in a letter from the defendant’s then solicitors Donaldson Walsh to Mr Griffiths dated the 1^st of December 2011.[11] In that letter the author refers to a pedestrian path adjacent to South Road and then says:
My instructions are that the plaintiff travelled along one of the pathways onto the pedestrian access and rode into the side of the rear trailer combination such that the defendant had no opportunity to avoid the collision.
[11] D33 – A series of letters.
The source of those instructions is not made clear.
On the 2^nd of February 2012 the solicitor wrote again to Mr Griffiths[12] referring to a visit to the accident scene on the 23^rd of January 2012 by Mr Griffiths, Senior Constable Horder, (the first police officer at the scene) the writer and counsel. The letter requests a report from Mr Griffiths and asks him to assume, inter alia, that the plaintiff exited onto South Road as follows:[13]
The cyclist had travelled through the Kings Reserve and exited from this footpath directly onto the South Road footpath towards the side of the B-double combination in the vicinity of the rear trailer.
[12] D33.
[13] Page 10.
In his first report[14] Mr Griffiths repeats the above instruction[15] but, relying on a Google map photo which he attached, he drew the cyclist’s travel along the northern driveway not the footpath referred to in the instructions. The footpath is visible in the Google photograph to the north of the driveway, separated by a planted median.
[14] D25.
[15] Page 10.
Mr Griffiths made several conclusions about the plaintiff’s exit onto South Road. He said:
In terms of assessment and analysis of this crash, there is sound physical evidence to show that the rider came into impact with the rear left side of the truck immediately upon attempting to enter the northbound kerbside lane.
The sound physical evidence of the rider’s rest position shows that the rider did not enter the roadway and travel in a northerly direction for any distance prior to impact.[16]
[16] D25, page 35, lines 28-32.
He also said:
It is a matter of sound physical evidence that (for reasons unknown) the rider attempted to enter the northbound kerbside lane at a time when approximately 21 metres of the 25 metre long B double had already passed the exit lane from the car park area.[17]
[17] Page 36, lines 2-3.
In cross-examination the plaintiff acknowledged that he knew before he met Mr England that Mr Griffiths’ first report said that he, the plaintiff, was at fault in the collision.[18] A little later in cross-examination[19] he agreed that he understood after he had had Mr Griffiths’ report explained to him that it would be good for his case if he exited from the southern driveway.
[18] T107.
[19] T108.
It is not clear when Mr Griffiths’ report of the 8^th of February 2012 was explained to the plaintiff but the plaintiff did not meet Mr England until August 2013. The plaintiff went to the scene of the accident with Mr England and a young female solicitor from his then solicitors’ office on the 11^th of August 2013 (the plaintiff says he went to the scene twice with Mr England but I prefer Mr England’s account that the two were only present together at the accident scene on one occasion, but on the same day and on a later occasion Mr England went to the plaintiff’s house where they talked only about features of the bike).
Mr England’s notes of his attendance at the scene on the 11^th of August 2013 were tendered.[20] They make no reference to the point of exit of the cyclist onto South Road although there is attached a sketch suggesting that the exit was from the southern driveway.
[20] D19.
On the 19^th of March 2014 Mr Aris Tolis (not the young female solicitor who went to the scene) wrote an instructing letter[21] to Mr England seeking a report. In the letter he asked Mr England to assume that the plaintiff:
Pedalled along the northern most path through the bitumenised car park immediately east of Thebarton Oval and proceeded to travel along the northern most driveway of that car park towards South Road.
[21] P9.
In his report of the 16^th of April 2014[22] Mr England repeats that instruction but adds in brackets the following:
After receiving your initial instructions, I was further advised that the northern driveway of two, on the northern side of Kings Reserve, extending towards South Road, was blocked to traffic from the path at the eastern side of Thebarton Oval, which required your client to travel along the southern driveway of two, which at that time was the northern most available driveway.
[22] D12.
Mr England is unable to remember from whom he received that further advice. The photographic evidence would suggest that there were never any bollards blocking the northern driveway. A Google photo[23] shows two rows of bollards at the western-end of the footpath to the north of the northern driveway but there are none in the driveway. If, before he met Mr England in August 2013, the plaintiff had absorbed the fact that Mr Griffiths’ report said in fairly emphatic terms that he was responsible for the collision because he had come out of the northern driveway and run straight into the truck, and if he had absorbed the fact that it would be good for his case if he were to be found to have come out of the southern driveway and driven some distance along South Road before the collision, then it is surprising that Mr Tolis’ letter asks Mr England to assume that the plaintiff came out of the northern driveway. It is also surprising that the plaintiff did not emphasise that point to Mr England at the accident scene so that Mr England made a specific note about it. That said, it is true that Mr England’s sketch suggests the plaintiff came out of the southern driveway and Mr England’s report refers to the further advice about the alleged blocking of the northern driveway by bollards forcing an exit from the southern driveway.
[23] P3A.
When the plaintiff’s attention was drawn in court to the relevant passages in Mr Tolis’ instructing letter the plaintiff said that Mr Tolis was wrong. When it was put to the plaintiff in cross-examination that he had made up the story about the northern driveway being blocked by bollards the plaintiff denied that he had made up the story but he was at a loss to explain how the further advice came to be given to Mr England.
There is no doubt that further advice was given to Mr England because in the plan he attached to his first report Mr England referred to the southern driveway as the “northern most available roadway.”
The plaintiff’s evidence on this topic is quite confusing.[24] At points the plaintiff says he thought he did tell Mr England that bollards blocked the northern driveway[25] but at other points he denies saying it.[26] One explanation for that confusion is that the plaintiff has been caught lying. That was not my impression of him in the witness box. My impression of the plaintiff, during both his examination-in-chief but more particularly in cross-examination, is that he had genuine difficulty understanding what he was being asked. The questions he was being asked both in examination-in-chief and in cross-examination were always clearly enunciated however it was my impression that he had difficulty at times understanding what was being asked of him. For example he had great difficulty understanding the difference between questions directed to what he had said on an earlier occasion and what happened on the day of the accident. My own attempts to explain the difference to the witness were largely unsuccessful.[27] I accept that lying and being unable to understand are not mutually exclusive but I got no impression that the plaintiff was lying.
[24] T111-122.
[25] T117 and 120.
[26] T119.
[27] See T87-97.
The defendant points to other inconsistencies besides the topic of the exit onto South Road. Mr England’s notes made at the scene are inconsistent with the plaintiff’s present evidence in a number of respects. I interpret rather than reproduce the notes:
·The truck was travelling at 65-70 kilometres an hour.
·The truck went from two metres out to the edge of the bitumen.
·The plaintiff was riding one metre from the kerb.
·His speed of 16 kilometres an hour was indicated on the speedo.
·The bike stopped as the truck passed. It was almost stationary. The plaintiff stood up on his pedals.
·The truck was straddling the lane line.
·The truck came over one metre and moved to the gutter.
Mr England was not sure who at the scene told him what. He had earlier had a conference at a lawyers rooms in Carrington Street. That was on Thursday the 8^th of August 2013. There Mr England was briefed by the plaintiffs’ then Barrister Mr Warren and the solicitor Ms Paris Kontibas. The meeting at the scene of the accident on Sunday the 11^th of August was with the plaintiff and Ms Kontibas. It is to be remembered that the instructing letter to Mr England, sent some seven months later on the 19^th of March 2014, was written by Mr Aris Tolis, not the lawyer who was at the two conferences.
In his report Mr England did not rely on some of the notes he made. He did not rely on:
·The speed of the truck being 65-70 kilometres an hour.
·The plaintiff riding one metre from the kerb.
·The truck straddling the lane line.
·The truck coming over a metre moving towards the gutter.
He did however rely on the estimated speed of the bike and the plaintiff’s slowing down as the truck went past.
In his evidence the plaintiff did not claim to be able to say anything about the speed or the path of the truck just before the collision. He said he himself was closer to the kerb than one metre. He said he was about 10 cm from the kerb. He denied slowing or stopping in South Road before the collision. He said that he did not determine his speed by reference to his speedo. The speedo on his bike could be set to tell the time as well as the speed, and when he was on South Road it was set to tell the time.
When each of these inconsistencies was put to the plaintiff in cross-examination he generally said he could not remember giving Mr England or his solicitors’ instructions on those matters. Mr England cannot remember who gave him the details which he noted. I think it is possible that the plaintiff gave Mr England and his instructors a somewhat confusing account of events and I also think it possible he reconstructed events. As a matter of human experience what we call memory is part conscious or unconscious reconstruction of events. In this case, as in many, an expert’s reconstruction of events from established or likely facts is a more reliable account of what happened than what traumatised participants can offer. The reliability of what those individuals have to offer is often confused rather than enhanced by the need for multiple repetition of events. It is further confused by feedback or probing from those hearing the accounts.
I pause to determine the submissions made by Mr Trim that in light of the non-production by the plaintiff of the notes from Messers Tolis & Co and the fact that no one from that firm was called to give evidence, I should conclude that the notes and evidence would not assist the plaintiff’s case (Jones v Dunkel).[28] This submission focusses principally on the passage in the letter from Tolis & Co[29] which asks Mr England to assume that the plaintiff came out of the northern driveway but it also concerns the further advice Mr England was given about the northern driveway being blocked by bollards.
[28] (1959) 101 CLR 298.
[29] P9.
The defendant submits that even where the absent witness is the solicitor for the party in question the rule should be applied. In support of that contention Mr Trim cites Cooper v Hobbs [2013] NSWCA 70 per McColl JA at [58]-[84]. In that case the appeal was allowed partly on the ground that the trial judge had declined to draw an inference adverse to the respondent in light of the respondent not calling his solicitor to give evidence about the circumstances of an advance of monies.
The plaintiff opposed the drawing of an adverse inference. In support of its opposition Mr Livesey cited Mocatta v Leal [1993] SASC 4041, a decision of the Full Court of South Australia and in particular the judgment of Cox J at [19]-[30]. The court held that in the circumstances the trial judge was not in error in declining to apply the rule in Jones v Dunkel. Cox J referred to the tendency of authorities not to apply the rule where there was a failure to call a party’s solicitor to give evidence.
I will not dwell on the competing authorities because in the circumstances of this case it is not clear exactly what inference I should draw if I were to accede to the defence submission. I will turn to that question shortly.
Declining to draw the inference that the notes and solicitor’s evidence would not assist the plaintiff’s case does not prevent me drawing other conclusions from the material I have before me. This approach was taken by Cox J in Spence v Demasi (1988) 48 SASR 536. The other members of the Full Court were White and Perry JJ. I do not take White J to be expressing a view on Cox J’s reasoning on this topic although his Honour agreed with Cox J’s decision to dismiss the appeal. Perry J dissented from the majority on the outcome and expressly disagreed with Cox J’s reasoning for upholding the trial judge’s decision not to apply the rule in Jones v Dunkel. However I do not understand Perry J to disagree with what I might describe as Cox J’s post Jones v Dunkel reasoning. By that I mean Cox J’s discussion of how a trial judge may draw conclusions from other evidence once the decision has been made not to apply the rule in Jones v Dunkel. Having upheld the trial judge’s decision not to apply the rule is in Jones v Dunkel. Cox J said:[30]
I should make it clear that this does not mean that the respondent could not have given useful evidence or that the court was in some way to take a benign view of his case because he was not there to support it. Far from it. All it means is that, in weighing the evidence at the end of the case, the fact that the respondent has not given evidence might properly be laid to one side. To put it in another way, while it was not to be assumed that the respondent, had he given evidence, would not have assisted his case, nor was it to be assumed that he would have enhanced it.
[30] Page 549.

The plaintiff denies ever telling his solicitors that he came out of the northern driveway. The Tolis letter would suggest he did tell them that, or at least he said something which led the solicitors to conclude that he meant that he came out of the northern driveway. There is no evidence before me that the plaintiff went to the scene of the collision with his lawyers before he went there on the 11^th of August 2013 with Mr England and Ms Kontibas. Until then it may be that he had not physically pointed out to his lawyers which driveway he came out of. On the 11^th of August Mr England made no note of which driveway the plaintiff came out of but he did draw a sketch which suggested an exit from the southern driveway.
I am satisfied that Mr England made accurate notes of what he was told by someone at the scene and by someone at the lawyers rooms two days earlier. The plaintiff seems not to have been present on the earlier occasion at the lawyers rooms. I accept that whatever Mr England wrote down at the scene, as opposed to the lawyers rooms, was either said by the plaintiff or was said by someone else in his hearing. Some of the details in the notes from the scene are disavowed by the plaintiff. For example the speed of the truck and the movement of the truck towards the kerb. The plaintiff says he felt anxious at the scene despite the visit being almost seven years after the collision. I accept that evidence. I do not know when the plaintiff first gave his instructions to his lawyers.
I am presented with the plaintiff’s denial of ever having told his lawyers that he came out of the northern driveway and the solicitor’s letter implying that he did. If I applied the rule in Jones v Dunkel I would conclude that in the absence of evidence or notes from the solicitors I should conclude that that material would not assist the plaintiff’s case. At its highest that conclusion might mean that I found that the plaintiff had indicated clearly and unambiguously to his lawyers that, of the two driveways onto South Road, he rode along the northern one.
I am not willing to draw that conclusion. However, to follow the reasoning of Cox J in Spence v Demasi, I do not draw the benign view for the plaintiff that he clearly and unambiguously told his lawyers that he took the southern driveway, and his lawyers instructed Mr England erroneously that he took the northern one. The plaintiff’s instructions in that particular regard may have about them the unreliability of the other matters which Mr England did note at the scene.
I deal with Mr Trim’s more focussed criticism of the plaintiff’s evidence on this topic. Mr Trim put to the plaintiff that, having told his lawyers unambiguously that he came out of the northern driveway, he then understood the consequences of Mr Griffiths’ first report, and, as a consequence, changed his instructions. I have already remarked that it would be surprising if that was the case that he did not emphasise the changed instructions to Mr England at the scene. However there may be another possibility. It may be that the plaintiff did not give careful thought to which driveway he took onto South Road when he first instructed his solicitors, and he gave the solicitors an account which led them to record the exit by the northern driveway. Later the lawyers, or someone else, explained to the plaintiff that Mr Griffiths’ report meant that he had ridden out of the northern driveway directly into the side of the truck. That might have brought home to the plaintiff that that scenario simply cannot be correct. He did not drive into the side of the truck. He was hit while riding along South Road. That appreciation might have focussed his attention for the first time on precisely which driveway he rode along. At that point he did make it clear to his solicitors that it was the southern driveway he rode along. I do not make a finding to that effect. It would be speculation to do so.
My conclusion about the credit of the plaintiff is that he has not been able to clearly articulate an accurate account of the collision. For example he has either told Mr England at the scene, or acquiesced in what others have told Mr England at the scene, things which he now disavows. I do not think he has set out to deliberately mislead the court but I must be cautious about the weight I give his evidence. So far as the critical question of which exit he took onto South Road I give his evidence about it being the southern driveway some weight. If his evidence is contradicted by the reconstruction evidence then I would accept the reconstruction evidence. If the reconstruction evidence were merely consistent with his account then I would add some weight to that interpretation by reason of his evidence. I will also be assisted by what appear to be likely and unlikely scenarios.
Defendant’s evidence
The defendant was 55 in 2006. I will not recapitulate his work history beyond saying that he was a long time interstate driver who had experience in driving B-doubles. He had been driving the Volvo prime mover for some 10 years. He had been making twice weekly trips between Melbourne and Adelaide for years. I was not told how often his journey took him along South Road but he showed some familiarity with the location. I take judicial notice of the fact that there are many likely industrial destinations in the Western suburbs of Adelaide which would take a driver from Melbourne along South Road. I accept that the defendant’s background as an interstate truck driver is likely to enable him to remain alert at the wheel for longer than would be the case with inexperienced drivers. I also accept that his experience would make him familiar with the risks posed by driving such a large vehicle in built-up areas.
The defendant says that he got a day’s sleep on Wednesday the 13^th of December, the day before the collision. He left Melbourne at 8 pm that day. By the time of the collision he had been driving for just over nine and a quarter hours – four hours from Melbourne to Nhill, followed by a half-hour break, then five and a quarter hours to Thebarton. He was 15 minutes from his destination in Royal Park.
It was not put to the defendant in cross-examination that he was tired as he was driving along South Road. That being so Mr Trim suggested I cannot conclude that the defendant was tired. I do not conclude he was tired but I do not feel obliged to overlook the comparative situations of the plaintiff and the defendant. The plaintiff was a healthy 40 year old man who had been up for just over an hour and who was riding his bike outdoors during his 10 minute journey. The defendant was a 55 year old man with no known health problems who had been up for about 12 hours and had been in the cab of his truck for nine and a quarter hours, the last five and a quarter hours continuously. Notwithstanding the defendant’s long experience as an interstate truck driver the comparison of the two men would suggest that the plaintiff may have been the more alert of the two.
The narrowness of South Road at the scene of the collision imposed a high degree of care on both men. The plaintiff was riding a push-bike along a major road which carried heavy vehicle traffic. It was still dark at 5.20 am. There was no designated bike path. The defendant was driving a very large fully laden vehicle. The width of his lane did not permit him to remain in the middle if there was a cyclist ahead. He would have to move to the right to avoid a collision. At the very least he would have to move to the right hand lane line. He may have to encroach into the right lane itself.
I accept the defendant’s evidence that he did not see the plaintiff until after the collision. I accept that he first knew of the collision by seeing in his rear-vision mirror something flying out near the rear of the truck. He braked and stopped the truck just short of the traffic lights at Ashwin Parade. He stopped as quickly as he could without attempting an emergency stop. He went back to find out what had happened and render assistance if need be. Later testing showed that he had not taken any alcohol or drugs. He cooperated with police. There is really only one aspect of the defendant’s evidence which I do not rely on. The defendant says that his prime mover was level with a bus stop to his left when he looked in his mirror and saw whatever it was flying up at the back.[31] The reconstruction evidence makes it plain that if the defendant began braking at that point he would not have been able to bring his truck to a stop where he did. Mr Trim did not suggest otherwise.[32] The defendant’s credit is not in issue in the trial. It is not suggested he saw the plaintiff and decided not to take evasive action. The plaintiff’s case is that the defendant should have seen him and was negligent in failing to do so.
[31] T244.
[32] T544.
Expert witnesses
I do not doubt the expertise of any of the four expert witnesses. Nor do I doubt that they diligently applied their expertise to an analysis of the causes of the collision. While on one view of it, it would be logical to analyse the evidence of each witness in the order that they gave their evidence, I think it preferable to consider their evidence, or at least their reports, chronologically. In that way the evolution of their views and the accumulation of further information becomes clearer.
Mr Griffiths was the first expert to investigate the crash. His first report was dated the 8^th of February 2012. It has been redated the 5^th of April 2018 and has become Exhibit D25. By the time of the first trial in January 2015 he had prepared a second report dated the 26^th of November 2014.[33] Mr Griffiths was the only expert called by the defendant in the first trial.
[33] D26.
Mr England was the only expert called by the plaintiff at the first trial. He had produced two reports. In each he had available to him the preceding report of Mr Griffiths. In his report of the 16^th of April 2014[34] Mr England commented on Mr Griffiths’ first report and in his second report of the 24^th of December 2014[35] he commented on Mr Griffiths’ second report.
[34] D12.
[35] P17.
Dr Gibson and Mr Hall were not consulted until after the first trial. By the second trial Messers Griffiths and England had provided still further reports.
Griffiths’ first report – 8/2/12 – D25
In his first report Mr Griffiths concludes that the plaintiff rode into the side of the truck impacting first with the outer wall of the second tyre of the three at the back of the second trailer. He appears to have received a police report and other police affidavits, photos and materials. He also received the plaintiff’s statement of claim.
Mr Griffiths appears to rely on the conclusions drawn by the police as to the cause of the collision. The police summary of collision was quoted as follows:[36]
Unit 1 travelling north on South Rd Thebarton in B-double truck… sighted push bike fly up in air at rear of vehicle and stopped. Unit 2 travelling east turned into South Rd to head north collided with side of truck causing cyclist to come off push-bike and be driven over by truck causing major leg injuries… Advice from Major Crash on 14/12/06 was that truck driver Rainbow not at fault. No error indicated.
[36] D5, page 20.
Mr Griffiths had earlier noted that his instructions were that the plaintiff had come out of the northern-most footpath (not driveway).
Mr Griffiths refers to an affidavit from (then Constable) Horder, the first police officer at the scene. In particular he reproduced the observations of the officer that he had noted a “scuff mark on the left hand side of the front of the second trailer” and “a scuff mark on the front wheel of the rear trailer.”
Mr Griffiths makes no further mention of Horder’s reference to the scuff mark on the front of the trailer (arguably level with the letter C in the word Cope on the side of the truck – “the C point”) but concludes in his summary that the scuff mark on the first of the three back tyres was the site of the first impact between the plaintiff and the truck. I am satisfied the later evidence contradicts this conclusion. If the point of impact was with the first of the three tyres there was insufficient time for the plaintiff to be run over by the third tyre. Further it is quite unclear from later evidence that the scuff mark on the first tyre was caused by the collision. The defendant was not sure whether the scuff mark was present before the collision and other witnesses are hesitant in suggesting it was caused by the collision, or at least the collision between the bike and the truck.
Mr Griffiths is somewhat dismissive of the plaintiff’s version of the collision which he presumably found in the plaintiff’s statement of claim. Before summarising the plaintiff’s contentions he erroneously described the plaintiff as being 50 years old. He was 40. The relevant parts of Mr Griffiths’ summary are as follows:[37]
The pedal cyclist, FOTIS ANDONOPOULOS appears to claim that whilst in the process of attempting to share the kerbside lane with the B double, the right side of his bike came into impact with the left side of the B double, causing him to fall to the roadway and receive significant pelvic and lower leg injury.
The crash was investigated on-scene by South Australian police, including their major investigation team. A review of their photographs indicates that the pedal cyclist came into impact with the outer wall of the leftmost tyre of the second axle of the rear trailer immediately adjacent to where the pedals cycle entered the roadway from a parking area… the pedal cyclist’s version of events is soundly contradicted by the evidence collected by the police.
In summary, there is sound evidence to show the rider rode directly into the side of the first set of tyres of the last trailer.
[37] D25, page 1.
In my view Mr Griffiths overstates the evidence in support of his conclusion. He appears to be substantially influenced by the conclusions drawn by the police and he cites the plaintiff’s exit from the northern driveway (albeit the instructions said the northern footpath) as his instruction. It must of course be accepted that if the collision did occur in that way then there was nothing the defendant could do to avoid it. The prime mover had gone past the northern driveway and even if the defendant had seen the bike approaching South Road there was no reason why he should take evasive action.
England’s first report – 16/4/14 - D12
Mr England seems to have been provided with the same police materials made available to Mr Griffiths plus Mr Griffiths’ report. He also had the instructions from Mr Tolis[38] and the further advice to which I have already made reference. He had had a briefing at the lawyers rooms in Carrington Street on the 8^th of August 2013 and had been to the scene with the solicitor and the plaintiff on the 11^th of August. He had also seen the plaintiff’s bike on the 11^th of August and returned to see it again at the plaintiff’s house on the 3^rd of April 2014.
[38] P9.
Mr England’s instructions in short were that the plaintiff stopped in the southern driveway when he reached South Road. When he saw the defendant’s truck in the distance he rode into South Road and was struck sometime after having done so. Mr England was asked to make three critical assumptions. The first was that the plaintiff stopped his bike at the junction of the southern driveway and South Road. The second was that when the plaintiff looked south along South Road the defendant’s truck was near a West End beer sign which Mr England measured at 132.7 metres from where the plaintiff stopped. The third assumption was that the plaintiff was almost stationary in South Road when he was hit by the truck.
Applying his calculations to those assumptions Mr England concluded that the plaintiff would have been riding along South Road for about 7.5 seconds (7.4-7.6) before the truck reached him. Plainly that was sufficient time for the defendant to see the plaintiff and take evasive action. Mr England attributed the blame for the collision to the defendant.
I do not accept two of the three assumptions that Mr England was asked to make. I do not accept that the plaintiff stopped on South Road at about the point when the truck reached him. There was no reason why he would do so. He does not now claim to have done so.
In addition I do not accept that the truck was as far back along South Road as the West End sign when the plaintiff saw it. I think it unlikely he would have been able to reliably notice that fact. In addition, later calculations make that scenario unlikely. The plaintiff does maintain that claim in his present evidence but given the trauma he suffered I do not think that evidence is reliable.
For a similar reason I did not accept the defendant’s contention that he was level with the bus stop when he saw something flying out from the back of his rig. He too would have been traumatised by what he witnessed and would have been in no position to reliably absorb his exact whereabouts at the time.
I will deal later with the critical question of whether the plaintiff came out of the Southern driveway, and whether he stopped before he did so.
Griffiths’ second report - 26th November 2014 – D26
In his second report Mr Griffiths reviews Mr England’s first report and indicates his areas of disagreement in tabular form. For the most part the differences between the two experts are the assumptions from which they began their analyses. Mr Griffiths continues to rely on what he understands to be the police account that the plaintiff rode out of the northern driveway into the side of the truck. Mr England relies on the information he has been given by the plaintiff or the plaintiff’s solicitors.
Mr Griffiths suggests that even if Mr England’s hypothesis is the correct one the plaintiff has engaged in “hazardous movements”. He said:
Graham England’s interpretation assumes that the rider stopped, took account of the situation, saw the truck approaching, then deliberately moved onto the roadway in an attempt to share his bike’s approx 650mm wide handlebars with the remnant approximately 600 mm of lane with a truck approaching at 50 to 60 km/hr.[39]
[39] D6, page 17, line 31.
It is not clear how Mr Griffiths came by the width of the handlebars or the upper speed of the truck.
In the table of differences Mr Griffiths refers to the difference that each has assumed in respect of the rest position of the plaintiff. Mr Griffiths assumed the rest position to be near the northern alignment of the northern driveway, presumably that designated by the yellow circle placed there by the police. Mr England assumes that the rest position was that indicated by the plaintiff, i.e. 4.3 metres north of the northern alignment of the northern driveway. Later Mr England accepts that this is not correct.
The significant difference between the experts is the position each takes on the driveway from which the plaintiff came onto South Road. The only point of difference which Mr Griffiths discusses in any detail on that topic is the opinion of Mr England that the lack of significant damage to the bike precludes the suggestion that the bike was ridden into the side of the truck. Mr Griffiths maintains that in his experience of cycle crashes, bikes often do emerge from serious collisions without much damage. In any event, he says it may be that rather than riding into the truck at right angles the plaintiff saw the truck at the last moment and swerved to the left so that the bike had minimal contact with the truck. I accept that that explanation may explain the limited damage to the bike. In his first report Mr Griffiths had not referred to the swerving scenario.
Mr Griffiths concludes this report by his assertion that there is:
Robust physical evidence, contemporaneously collected by the Police, to substantiate the deduction that the rider entered the roadway from the northern exit of the car park.[40]
[40] D26, line 13.

I do not accept that the physical evidence collected by the police could be described as “robust” in favour of the plaintiff’s exit from the northern driveway. Under cross-examination[41] Mr Griffiths agreed that he relied to a degree on what the police told him about the exit and said the police were “firmly of the view” that the plaintiff came out of the northern exit.
[41] T454-5.
England’s second report - 24th of December 2014 – P17
Mr England sent an email dated the 16^th of December 2014 to the solicitor Mr Tolis[42] commenting on Mr Griffiths’ second report. He sent his own second report[43] just over a week later. In the report he accepts that his earlier assumption about the plaintiff’s place of rest was wrong. He accepted that the place where the plaintiff’s leg was run over was the yellow mark made by the police which he estimated was 2.3 metres north of the northern alignment of the northern driveway. As a consequence he reduced what he believed to be the distance between the West End sign at which the plaintiff said he saw the truck and the point of impact. He reduced that distance from 161-163 metres down to 159-161 metres. He concluded that the bike would have been travelling on South Road for 8.6-9.2 seconds. He maintained his view that that was sufficient time for the defendant to see the plaintiff and take evasive action.
[42] D20.
[43] P17.
I think that later calculations of the time for which the plaintiff might have been on South Road are likely to be more reliable because those later calculations do not depend on the assumption that the plaintiff saw the truck when it was near the West End sign. I think Mr England is correct to observe that the Police investigations do not provide physical evidence that the plaintiff came out of the northern driveway onto South Road.
After the first trial Messrs Griffiths and England provided further reports and memoranda.[44] For the first time the plaintiff obtained a report from Dr Tom Gibson[45] and the defendant received a report from Mr Chris Hall.[46] Each of those witnesses provided additional reports and memos just before this trial began.[47] I will continue to discuss the reports chronologically so as to follow developments in the understanding of the circumstances of the collision.
[44] Griffiths, 25/7/17, D27, 12/4/18, D28 and Memo dated 9/4/18, D29; England Memo 10/4/18, P18.
[45] 2/12/16, P7.1.
[46] 14/6/17, D23.
[47] Gibson, 6/4/18, P7.2, 8/4/18, P7.3 and Notes on sketch, P31A and; Hall 11/4/18, D24, Sketches D30 and D31 and letter dated 21/4/18, D32.
Gibson’s first report – 2/12/16 – P7.1
Dr Gibson was asked to assume the plaintiff exited onto South Road from a stationary position (the “standing position”) in the southern driveway about a metre north of the southern kerb of that driveway. Dr Gibson measured the distance between the assumed standing position and the point of impact designated by the yellow circle. It measured 14 metres. He conducted experiments to determine the likely speed of the bike at the point of impact and the time it would take to travel the 14 metres. He estimated that it would take the plaintiff 2-2.5 seconds to perceive that it was safe to move forwards and to do so. He concluded the plaintiff needed 8.5-9.0 seconds to start from his standing position and reach the point of impact. At that point he would have been travelling at about 15 km/h. There was sufficient time for the defendant to see the plaintiff.
Dr Gibson’s opinion was that the truck was creating significant aerodynamic lateral force on the plaintiff causing him first to be pushed towards the kerb then sucked back towards the side of the truck. In addition the plaintiff may have corrected the move towards the kerb by attempting to steer towards the truck. Dr Gibson concluded that the point of impact between the bike and the truck was on the left side of the second trailer. He concluded that the time taken by the plaintiff to travel from his standing point to the point of impact was about the same time it would take a truck to travel the 132.7 metres from the West End sign.
Later Dr Gibson disavowed the sucking component of the aerodynamic forces caused by the truck. He also revised downwards the distance travelled by the truck and as a consequence revised downwards the time for which the defendant would have been able the see the plaintiff on South Road. I will return to those variations later.
Hall’s first report – 14/6/17 – D23
Mr Chris Hall was the first witness to closely analyse the available evidence to determine the likely point of impact between the bike and the truck. He persuasively excluded the scuff mark on the second trailer above the rear wheels. That mark is near a sign on the side of the truck saying “Air-ride” (“the air-ride point”). No witness now says otherwise. In my view Mr Hall also persuasively excluded the scuff mark on the wall of the front left tyre of the second trailer being a point of contact with the bike although he allows for the possibility that it was a point of contact with the plaintiff’s body when he reached the ground.
In his reasoning towards the point of impact between the bike and the truck Mr Hall estimates the time it would take the plaintiff to fall from his bike to the road. He estimated .44 seconds. In that time the truck moved 4.3-4.9 metres if it was travelling at 55 km/h. Knowing that the left tyres of the last axle, at the very least, ran over the plaintiff’s leg, Mr Hall estimated that the point of impact must have been a minimum of 5 metres forward of the first of the last three axles of the second trailer. He concluded that the point of impact between the bike and the truck was probably 15-16 metres from the front of the prime mover or 10 metres from the rear. Dr Gibson accepts that evidence.[48] That is near the front of the second trailer. Although he cannot now recollect seeing a scuff mark on the left front of the second trailer Brevet Sergeant Horder noted a scuff mark at that point when he made observations at the scene. It became part of his report.
[48] T373.
I find that the point of impact between the truck and the bike was towards the front of the second trailer about 10 metres from the rear. All witnesses now accept that the likely point of contact is between the right-end of the handlebars of the bike and the side of the second trailer about 10 metres from the rear. The impact is likely to have forced the handlebars in an anti-clockwise direction causing the plaintiff to fall to the road.
Mr Hall analyses the time and distance aspects of the plaintiff’s fall from the bike. One consequence of that consideration is that it becomes unlikely that the point of contact between the bike and the truck was in South Road level with the northern half of the northern driveway. The corollary of that proposition is that if the plaintiff came from the northern driveway it is more likely to have been from the southern side of that driveway rather than the northern side.[49] Mr Hall reconstructs possible scenarios for the plaintiff’s exit from the northern driveway, scenarios which include the plaintiff both stopping and not stopping before he entered South Road. Those scenarios include studies he has made of the rate of acceleration of bicycles. There is no challenge to the accuracy of those studies.
[49] D23, page 17 of 40.
Mr Hall is able to undertake the scenarios because he assumes the point of impact on the truck to be 10 metres from the rear and the point at which the plaintiff sustained his injury is the yellow circle.
The calculations lead to these conclusions: if the plaintiff rode out onto South Road at 10 km/h without stopping, the front of the truck would have been 7-8 metres north of him at the point of impact. In other words he rode into the side of the truck. If his speed at exit was 5 km/h the front of the truck would have been about 15 metres south of him. That is he rode into South Road when the truck had almost reached him. There are then estimates of the distance the front of the truck was south of the plaintiff if he stopped at the junction. Those estimates depend upon his possible rate of acceleration. The distances vary between 5 and 21 metres. Again the plaintiff has moved out into South Road when the truck has almost reached him.
I have already indicated that I think it is unlikely that the plaintiff rode into the side of the truck. I also think it is unlikely that he stopped at the junction and rode into South Road when the truck had almost reached him. If he stopped it must surely have been to look for oncoming traffic. If he did look then, on the northern driveway exit scenarios, he has set off when the truck has almost reached him. It is true that he has not moved into the path of the prime mover. He was not hit by the prime mover. But he has moved off when a moment’s delay would have seen the truck go safely past him. I do not think that he did that.
However that still leaves the scenario that he has ridden out into South Road at 5 km/h without stopping and with the truck 15 metres away. He has done so without looking to the right at all, or he has looked and seen the truck 15 metres away but has decided to take the risk. There would have been nothing obscuring his view south. The truck would have been in plain sight.
I find that these considerations make the plaintiff’s exit more likely to have been from the southern driveway.
Mr Hall considers scenarios for an exit from the southern driveway. He considers scenarios with the plaintiff stopping and not stopping before entering South Road. He said that if the plaintiff did not stop, and entered South Road at a speed of between 10 and 15 km/h, he would have reached a speed of about 16 km/h along South Road. That is apparently a normal pedalling speed. The distance for fall and slide before injury would be of the order of 4 to 7 metres. That places the point of impact level with part of the median strip which divided the two driveways.[50] The front of the prime mover would have been between 4 metres north of the plaintiff as he entered South Road (i.e. past him) and 26 metres south.
[50] D23, figure 6, page 23 of 40.
If the plaintiff did stop about a metre north of the southern kerb of the southern driveway he could have reached 16 km/h in South Road. In those circumstances the front of the prime mover would have been between 31 and 38 metres south of him as he entered South Road.
If the defendant was travelling at 55 km/h he was moving along at about 15 metres per second.
Mr Hall disagreed with Dr Gibson’s conclusion that an analysis of the braking distance of the truck showed it was likely that the defendant applied his brakes before the impact between the bike and the truck. Dr Gibson however accepted part of Mr Hall’s criticism and I find that it is likely that the defendant did not begin braking until after the impact, albeit that it must have been almost immediately afterwards.
A critical difference between Hall and Gibson was the question of whether the defendant had sufficient time to see the plaintiff ahead of him. Mr Hall analysed the plaintiff’s contention that he proceeded to move into South Road when the truck was near the West End sign, some 132 metres away. He concluded that the collision could not have happened where it did if that was so. Dr Gibson acknowledged that that was correct if the respective speeds of the truck and the bike were about 55 and 15 km/h. While I acknowledge the possibility of variations in speed I think that the evidence suggests it is unlikely that the plaintiff moved off into South Road when the truck was 132 metres away.
Discussion by Mr Hall and Dr Gibson during the trial
During the cross-examination of Dr Gibson it was agreed by the parties that he and Mr Hall should be given an opportunity to confer amongst themselves overnight to narrow points of difference. A critical part of that discussion focussed on a sketch drawn by Mr Hall[51] which showed the progress of the truck and the bike on the assumption that the point of impact was near the front of the second trailer. I will not canvas the details of the two witnesses’ evidence but instead focus on what I take to be the relatively common ground between them and the qualifications which each makes to the conclusions which may be drawn.
[51] D31.
Before turning to further discussion of the evidence I indicate why I find that this is the area of critical consideration in the trial. While the reports and evidence of Mr Griffiths and Mr England have contributed significantly to the understanding of how this collision occurred I think the ultimate conclusions of each are too dependent on the assumptions from which each has started his analysis. Mr Griffiths has relied significantly on the Police conclusion that the plaintiff came onto South Road from the northern driveway. I do not think that the Police analysis was sufficiently detailed to enable Mr Griffiths to rely so heavily on it. In any event I find that the plaintiff did not come from the northern driveway.
Mr England has relied significantly on the plaintiff’s account that the truck was level with the West End sign when he began to come onto South Road. I find that that is not so.
I think it is more likely that the plaintiff came onto South Road from the southern driveway. The location of the truck at that point is to be assessed by reference to the competing analyses conducted by Dr Gibson and Mr Hall.
The sketch D31 illustrates the hypothesis that the plaintiff moved into South Road from the southern driveway about a metre from the southern kerb. He reached a speed of about 16 km/h. The departure point is essentially the plaintiff’s account although the sketch discounts the truck being back at the West End sign when the plaintiff sets off. The sketch is essentially drawn from the text of Mr Hall’s report.[52] Two scenarios are allowed for in that part of the report. The first is that the plaintiff moved from a stationary position. He rode for 7-10 metres along South Road before the impact with the truck. The ride would have taken between 3.4 and 4.1 seconds. During that time the truck moved 52-62 metres. The sketch assumes that the time taken for each to reach the point of impact was 3.4-4.1 seconds. On those assumptions there was about 31-38 metres between the point at which the plaintiff entered South Road in the front of the truck. Each of the experts said that any alteration to the speed of either vehicle would change the distances. The assumption of the bike’s speed at 16 km/h is based on the “normal” pedalling speed. The assumption of the truck speed is that which the defendant told the Police. Dr Gibson generally agreed with the distances shown in the sketch if all the assumptions are made.
[52] D23, page 23 of 40, paragraph 8.6.
The other scenario in paragraph 8.6 of Mr Hall’s report is that the plaintiff did not stop at South Road but entered at a speed of 10-15 km/h. In those circumstances he would have travelled 4-9 metres and taken between 1 and 3.25 seconds to reach the point of impact. In that time the semi-trailer would have moved between 15 and 50 metres. The front of the prime mover would have been between 4 metres north of the plaintiff, i.e. past him, and 25 metres south of his position as he entered South Road. For reasons I have already given I do not believe that the plaintiff entered South Road with the truck in front of him or that he entered South Road when the truck was almost upon him.
On the basis of the distances shown in the sketch and assuming that the defendant did not alter his speed he would have covered the 31-38 metres to the plaintiff’s departure point in just over 2 seconds. As Dr Gibson pointed out there is some further time which must be taken into account because the defendant would have been in a position to observe the plaintiff in the time that the plaintiff was actually travelling some of the 7-10 metres. Dr Gibson acknowledged that for part of the plaintiff’s travel distance the prime mover has gone past the plaintiff. Dr Gibson thought that you might add something of the order of a second to the observation time. That makes an observation time of about 3 seconds.
Plaintiff’s exit onto South Road
I find that the plaintiff came out onto South Road from the southern driveway. I do so first because the scenarios consistent with him coming out of the northern driveway are unlikely. I am satisfied that the plaintiff did not ride into the side of the truck. I conclude that if he had ridden at right angles into the side of the truck he would be likely to have suffered more injury to his upper body and there would be more damage to his bike. While I accept that an impact at an angle of approximately 45 degrees, consistent with his swerving at the last minute, might also be consistent with the resulting lack of damage or upper body injury I do not believe the plaintiff rode into the truck. He was a fit, reasonably alert experienced cyclist. He was familiar with that location. He was familiar with the traffic conditions at that time of day. He was a middle aged man of what I find are steady habits. The truck was well-lit and would have been audible as well as visible. None of these considerations taken alone would lead me to conclude as I have done, but in combination they satisfy me that the plaintiff did not ride into the side of the truck.
For the same reasons I find that he did not ride into South Road when the truck was almost upon him. It is to be remembered that the plaintiff did not ride into the path of the truck. He was not struck by the prime mover. The point of impact was some 15 metres behind the front of the prime mover, near the front of the second trailer. Something happened after the prime mover went past him. I have found that the plaintiff did not ride into the truck in the sense that he did not ride straight towards the side of the truck from the driveways coming onto South Road. My finding that he emerged from the southern driveway means that he was riding along South Road more or less parallel to the prime mover as it went past him. He must have been acutely aware of its presence as it went past. It is in my view inconceivable that he then deliberately turned towards the truck. One explanation is that, quite unconscious that the plaintiff is alongside of him, the defendant has moved to the left and impacted with the right end of the plaintiff’s handlebars.
Another explanation is that the truck was so close to the plaintiff that there was some aerodynamic force exerted onto the plaintiff and his bike causing the bike to waver to the left. The plaintiff either corrected or over-corrected so that the bike moved back towards the truck impacting with the side of the second trailer. Both Dr Gibson and Mr Hall examined the studies of aerodynamic force that might be caused by a truck passing a bike. Originally Dr Gibson expressed the view that the force had both blowing and sucking components so that the bike was first pushed away from the truck then sucked back towards it. Dr Gibson later accepted Mr Hall’s view that there would be no sucking effect until after the second trailer had gone past. That never happened.
Both witnesses referred to studies suggesting the extent of force necessary to destabilise a bike. Both agree that the force generated by the defendant’s truck, assuming its speed at 55 km/h, would not be such as to destabilise the bike in the sense of blowing it over. Mr Hall describes the likely force caused by the defendant’s truck to be half the level considered necessary to cause “a significant destabilisation of the cyclist.”[53] Dr Gibson maintains that even a small destabilisation will be sufficient to cause the bike to move to the left. The rider might instinctively correct or over-correct.
[53] D23, page 32 of 40, paragraph 10.1.

In either view the immediate cause of the collision is that the truck was travelling too close to the bike. It was doing so because the defendant did not see the plaintiff. The question remains whether he was negligent in doing so.
Lighting
Before turning to that question I deal with the question of what aids the defendant had to enable him to see the plaintiff and his bike. That involves considering the illumination from the plaintiff and his bike, the illumination from the street and the effect of the defendant’s headlights.
Illumination from the plaintiff
I find the plaintiff was adequately illuminated for a cyclist. He was wearing a hi-vis vest and while part of the back of the vest might have been obscured by his backpack, there was a flashing red light in the mesh pouch of that backpack. At the front there was a white headlight in the continuously switched on mode. There was also a front reflector.
At the sides there were reflectors on the spokes of the wheels. Facing the rear there was a flashing red light, a red reflector and reflectors on the pedals.
That all being so, the plaintiff was visible to a degree from South Road as he made his way along the driveway. The car park was otherwise dark. It is true that the reflectors on the wheels would only provide illumination to traffic coming along South Road once the headlights shone on them. The rear-facing lights and reflectors would probably not be visible although the flashing rear light on the bike might be. The front light might be visible to traffic on South Road approaching the driveways. The lighting on the plaintiff and the bike would not of course be so prominent as a car’s lights would be.
Street lights
Mr England’s plans show the location of street lights in the area. There are two street lights on the western side of South Road, one north of the bus stop which itself is north of the northern driveway and the other south of the southern driveway. The southern one is closer to the southern driveway than the northern one is to the northern driveway.[54] Mr Hall concluded from historical aerial images of the scene at the time that the street light to the south would have been 25 metres or more from the plaintiff. I assume he meant if the plaintiff was in the southern driveway. Mr Hall said that he thought that the dense trees would have made the lighting poor.[55] The clearest photo of the area to the south of the collision scene is Police photo 18 in P1. I am not sure that I would describe the trees as dense but there are certainly tall trees between the southern driveway and the southern street light. There is a street light on the eastern side of South Road more or less level with the yellow circle where the plaintiff suffered his injuries. There is no evidence that that light would have illuminated the exit from the southern driveway. There is no evidence of any lighting in the car park from which the driveways lead to South Road. There is no evidence of illumination by vehicle headlights ahead of the defendant or coming in the opposite direction. There are no nearby buildings.
[54] See D12, annexures.
[55] D23, page 27 of 40, paragraph 9.3.
Mr Hall analysed the visibility of the plaintiff himself in the southern driveway[56] however Mr Hall mistakenly assumed the plaintiff was wearing dark clothing. In fact the plaintiff was wearing a hi-vis vest. Putting that error aside Mr Hall said that if the defendant was stationary at the southern driveway the truck’s headlights would reach him after the truck was 55 metres from the plaintiff. If the plaintiff was riding at 10-15 km/h he would not be visible until he was 5 metres offset to the defendant’s left and would then only be visible in the headlights after the truck was 35 metres from him.
[56] D23, page 28 of 40, paragraph 9.4.
Mr Hall was cautious in drawing conclusions about what illumination would have come from the lights on the bike.[57] He said the visibility would have been better if the bike was moving but in those circumstances the time for which the lights might be visible would be reduced.
[57] D23, pages 25-26 of 40, paragraph 9.2.
I conclude from Mr Hall’s evidence that the plaintiff himself would have been visible in the truck’s headlights for something of the order of 50 metres. I arrive at that figure by making some imprecise allowance up for the hi-vis vest Mr Hall did not take into account, and down for the reduced illumination from the older truck. Mr Hall calculated the spread of the headlights on the assumption that the truck was two years old when in fact it was 10. The figure of 50 metres is applicable if the plaintiff was stationary before entering South Road. If he was moving it may have been of the order of 30 metres.
However there is a possibility that some light from both the headlight and the tail light on the bike might have been visible in the dark before that. I bear in mind Mr Hall’s observation[58] that any view of the headlight might be small and hard to detect. He thought the tail light would not be visible at all. He does not make it clear why he takes that view.
[58] D23, pages 25-26 of 40, paragraph 9.2.
Did the plaintiff stop before entering South Road?
I think it is likely that the plaintiff did stop at the entrance to South Road. I have already found that the plaintiff did not ride into the side of the truck or ride into South Road when the truck was almost on him. Bearing in mind my assessment of the plaintiff as a person and as a cyclist I do not believe he entered South Road without seeing the truck. That does not however preclude the possibility that as he was riding along the driveway he saw the truck and thought, wrongly, that he could continue riding into South Road and be in a safe place in time for the truck driver to see him and take evasive action.
While I bear in mind Mr Trim’s quite reasonable submission that the road toll is as it is because people take great risks and make great misjudgements I think it unlikely that the plaintiff rode into South Road without stopping. I think he did what he said he did. I think his experience as a cyclist and his experience of that location at that time of day would have inclined him to stop. I find that he stopped and saw the approaching truck. I find that he misjudged or has misremembered how far away it was but I find that he saw the truck and set off into South Road believing the driver would see him.
The question is, in the time the defendant had to see the plaintiff, was his failure to do so negligent?
Opportunity for the defendant to see the plaintiff
While Hall and Gibson are in the end not a long way apart in the likely distance between the plaintiff and the defendant when the plaintiff moved into South Road they differ in the attribution of blame. Dr Gibson says that the defendant did have time to take evasive action. Mr Hall says he did not.
I agree with Mr Trim’s submission that the defendant was not obliged to slam on his brakes as soon as he saw a cyclist, either a cyclist approaching him from his left or a cyclist in his lane. What he was however obliged to do was to give a cyclist in his lane sufficient room to avoid a collision. The plaintiff was never in the defendant’s path. The defendant’s prime mover went past the plaintiff without incident. However his truck was too close to the plaintiff, and as a result the collision occurred. The defendant did not see the plaintiff before the collision. He might have moved to the left, unconscious of any danger, or by maintaining his position in the lane he caused sufficient instability in the bike to cause the collision.
Mr Hall and Dr Gibson both agree that studies show that truck drivers might reasonably engage in what is called non-discretionary monitoring of their progress. To ensure the safety of themselves and others they must constantly monitor their environment – the road conditions, the traffic, their mirrors, their vehicle and other relevant matters. That non-discretionary monitoring might reasonably take of the order of a second. On that assumption it could not be negligent in the defendant not to see the plaintiff if he had only a second or so in which to see him.
The separation distances discussed by Mr Hall and Dr Gibson suggest that the plaintiff entered South Road between 31 and 38 metres of the defendant. The accuracy of those figures is very dependent on the respective speeds of the vehicles and other factors that I have already referred to. However they are the figures discussed by both witnesses. If the defendant was travelling at 55 km/h (15.3 metres per second) he would cover that distance in about 2 seconds. A further allowance must be made for the time during which the plaintiff was actually travelling along South Road and before the prime mover passed him. That may be of the order of another second. There is a further consideration that the plaintiff was visible before he entered South Road. It is true that that visibility is hard to quantify, both the level of its intensity and its duration. But the plaintiff had adequate lights for a bike and he was wearing a hi-vis vest. He was riding along a driveway that an alert driver on that part of South Road should bear in mind. The defendant was approaching traffic lights at Ashwin Parade so he should be looking generally ahead rather than looking at other parts of his environment. By “generally ahead” I mean the environment ahead rather than for example checking his mirrors or his instruments. The driveways to his left, ungoverned by street lights, were part of the environment ahead. Before he entered South Road the plaintiff was in the southern driveway with a degree of visibility. The defendant’s monitoring of his environment should thereafter focus on the plaintiff.
Negligence
The plaintiff’s case is that the defendant failed to keep a proper lookout and in doing so he was negligent. In Murray’s Transport v CGU Insurance (2013) 118 SASR 11, Gray J discussed negligence in the context of the driver of a B-double semi-trailer. I do not draw any conclusions from the facts of that case. Gray J referred[59] to the remarks of Wells J in Stoeckel v Harpas (1971) (reference omitted) where Wells J described the obligation on drivers to drive defensively. His Honour said:
Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they presented themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger. Nowadays, for example, a young child on the footpath is not just a person so many feet away, but is a human being that may suddenly present himself in your path; a green light is not just an authority to spring off the mark without further thought, but is an invitation to look to right and left before moving off in case someone is trying unsuccessfully to beat the lights; a bus is not just a stationary vehicle, but represents cover from which, at any time, a pedestrian may emerge; a car with its turning flicker on may not be going to turn, but may have left his flicker on inadvertently; the car that you are following is to be kept a respectable distance in front of you because, at any moment, the driver may stop or slow down virtually without notice; a crest in the road is not just another part of the road, but is a danger point where a motorist, coming in the opposite direction, may well seek to pass on the rise. All these situations, and countless others besides, call for consideration by the reasonable driver because experience has repeatedly shown that perils on the road, as time goes by, seem to be giving less and less warning of their emergence. Of course, what I have said has its corollaries for other road users, but because of the marked increase in the power, weight and speed of today’s vehicles, as compared with those of the immediate post-war period, the implications for the drivers of motor vehicles are, in my view, stronger. The courts have, from time to time, spoken of the need to guard against human follies, but, in my opinion, there is a need for courts to emphasize that the guarding referred to include an ever-present attempt to foresee dangers well ahead of the immediate driving situation.
[59] Paragraph 98.
Gray J went on to cite more recent authority[60] to similar effect. His Honour referred to the following remarks of von Doussa J in Walton v Rowbottom (1986) (reference omitted):
…The cost of the community of death, bodily injury and property damage on the road, has continued to grow. In an effort to encourage greater care and to deter bad driving penalties for offences under the Road Traffic Act have been progressively increased. The community now requires not only a measure of defensive driving, but a measure of protective driving – to protect drivers, cyclists or pedestrians. Drivers must guard against all reasonably foreseeable dangers. Prominent amongst the foreseeable risks which drivers must have in mind is the one that other road users may be careless. … Many provisions of the Road Traffic Act establish arbitrary standards the breach of which is punishable. They do not establish immutable “rights” to drive up to the limits prescribed regardless of prevailing circumstances.
[60] At paragraph 99.
Gray J then referred to the legislative clarifications of the meaning of negligence and contributory negligence. I reproduce his Honour’s observations and the relevant passages of the legislation he referred to:
The relevant principles to be applied to questions of contributory negligence have been the subject of statutory clarification. Section 44(1) of the Civil Liability Act 1936 (SA) provides:
The principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm (the plaintiff) has been contributorily negligent.
Section 31(1) of the Civil Liability Act provides:
For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
Section 32 of the Civil Liability Act provides:
(1) A person is not negligent in failing to take precautions against a risk of harm unless –
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Gray J cited[61] and applied the exposition of negligence by Dixon CJ in Jones v Dunkel:[62]
…But that is only to say that of two guesses one is more probably than another. It may be remarked that these are not the only two guesses open as to the cause of the accident. But in any case we are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that “you need only circumstances raising a more probable inference in favour of what is alleged”. But “they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture”. These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Ltd which is referred to in Holloway v McFeeters by Williams, Webb and Taylor JJ. The passage continues: “All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied (italics added).
[61] Paragraph 78.
[62] Pages 304-5.
Finding of negligence
I am satisfied that the defendant’s failure to see the plaintiff was a failure to keep a proper lookout. His obligation to keep a proper lookout is a high one because of the heavy vehicle he was driving, the built-up area through which he was travelling and the fact that it was still dark. If the defendant had seen the plaintiff there is no discernible reason why he could not have taken evasive action such as moving to his right, into the next lane if need be, and slowing down. I find that the defendant’s failure to keep a proper lookout amounted to negligence on his part.
Contributory negligence
Having found the defendant negligent in that he failed to keep a proper lookout there is the remaining question about whether the plaintiff is guilty of contributory negligence. Has he done or failed to do something that contributed to the collision? The defendant must prove contributory negligence. If the plaintiff had come out onto South Road while the defendant was level with the West End sign, some 132 metres away, as the plaintiff said he did, then in my view the defendant had plenty of time to take evasive action. His failure to see the plaintiff from that distance would have been grossly negligent. Travelling at 55 km/h it would have taken him in the vicinity of 8 or 9 seconds to reach the plaintiff’s departure point. However I find that he did not have that much time to react. Although I find that there was some illumination of and from the plaintiff before he made his way onto South Road, the plaintiff was probably riding in South Road for something of the order of 3 seconds before the defendant’s prime mover had travelled past him. The plaintiff’s bike was adequately illuminated and he had taken the precaution of wearing a hi-vis vest. He was entitled to ride into South Road if he kept as close as he could to the left of that relatively narrow lane. He did not ride into the path of the prime mover. He kept sufficiently close to the kerb to keep out of the path of the prime mover.
He was entitled to enter South Road ahead of the truck so long as he allowed sufficient time for the driver to see him and take evasive action. He had to be alert to the fact that he was more difficult to see than many other road users. In my view the plaintiff misjudged to a degree the distance he should allow the defendant before he came out onto South Road.

I am satisfied that the defendant has proved that misjudgement by the plaintiff and that that misjudgement was negligent. The plaintiff is guilty of contributory negligence. It is not easy to quantify the extent to which that misjudgement contributed to the collision. I do not think, for example, that there can be any arithmetic calculation of the extra time or distance he should have allowed. I find that the plaintiff’s negligence was very much the minor contribution to the collision. I find he saw the defendant’s truck coming and moved close to the kerb of South Road expecting the defendant would see him and either keep well clear of him or move well clear of him. Nevertheless he had to be particularly conscious that in the dark he was not as easy to see as for example a car would be. He had to be conservative in his estimate of the time it would take the truck driver to see him.
I fix the plaintiff’s contributory negligence at 20%. The proportion of liability then is 80% for the defendant and 20% for the plaintiff.
I will hear the parties as to costs and any other ancillary orders which need to be made.