Andonopoulos v Rainbow - [2015] SADC 35

District Court of South Australia
(Civil)
ANDONOPOULOS & ANOR v RAINBOW
[2015] SADC 35
Judgment of His Honour Judge Chivell
16 March 2015
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - FAILURE TO LOOK-OUT - GENERALLY
First plaintiff claims damages for severe injuries suffered in a collision between the bicycle he was riding and a B-double semitrailer being driven by the defendant – whether defendant caused the collision by negligent driving. Whether defendant failed to keep a proper lookout. Second plaintiff claims damages for consequential losses.
Held: negligence not proven on the balance of probabilities. Plaintiffs' claims dismissed.
Dasreef Pty Ltd v Hawchar [2011] HCA 21; R v Fowler (1985) 39 SASR 440; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Cullen [2005] SASC 218; R v Duryea [2008] SASC 363; Stoeckel v Harpas (1971) 1 SASR 172; Kambouridis v Heyn & TransAdelaide [2000] SASC 361; Murray's Transport v CGU Insurance (2013) 118 SASR 11; Fleet SA - South Australian Government Financing Authority v Thomas Luke Transport [2014] SASC 194, considered.

ANDONOPOULOS & ANOR v RAINBOW
[2015] SADC 35
Introduction

This is a claim in negligence for damages arising from injuries suffered by the first plaintiff in a motor vehicle accident which occurred on 14 December 2006. The second plaintiff claims damages for loss of consortium and psychological injury. I will refer to the first plaintiff as ‘the plaintiff’.
On 14 December 2006, at or about 5.23 a.m., the defendant was driving a ‘B-double’, consisting of a Volvo FH12 prime mover towing two articulated trailers, north along South Road at Thebarton. A collision occurred between the defendant’s vehicle and the plaintiff, who was riding a bicycle.
The precise movements of the plaintiff prior to the collision are in dispute. Each party asserts that the other was wholly responsible for the collision. The defendant argues in the alternative that if he is found liable, the plaintiff was guilty of contributory negligence.
The plaintiff suffered severe injuries as a result of being run over by one or more of the wheels of a tri-axle combination at the rear of the rear-most trailer of the defendant’s vehicle. The injuries to his left leg resulted in a below-knee amputation. He also suffered injuries to his right leg and pelvis. His recovery was complicated by wound infection. He also claims damages for psychological injury.
The parties jointly submitted that the trial should proceed on the issue of liability only. The trial proceeded on that basis. The plaintiff was represented by Mr J Warren and the defendant was represented by Mr A Possingham.
The Plaintiff’s Case on Liability
The plaintiff was born on 14 January 1966. On the date of the accident he was 40 years old. He left school during Year 10, and worked as a kitchen hand and storeman until he obtained employment at Adelaide Motors in 1985. That company then operated an Isuzu truck dealership. He obtained a licence to drive heavy trucks while employed there.
In November 2006, the plaintiff became a self-employed concrete truck driver with Direct Mix Concrete (‘Direct Mix’). He had purchased his own truck. It was stored at the Direct Mix depot at 28 Musgrave Avenue, Welland.
The plaintiff said he usually rode his bicycle to work at Adelaide Motors. He continued to do so during the month or so that he worked at Direct Mix.
The plaintiff said that the distance between his house on North Parade, Torrensville and the depot was about two kilometres. The trip took about 10 minutes (T 35). His usual route was to ride east on North Parade, then turn left and travel north on Danby Street. At a T-junction with Ashley Street, he would turn right, and then left to travel north along a bike path on the eastern side of Thebarton Oval. After about 200 metres on the path, he would reach a set of bollards. After riding through them, he entered a paved area. He would continue riding east until he reached a kerb. He said he did not wish to ride over the kerb, so he turned down a ramp to travel south, performed a U-turn to travel north, and then turned right to travel east towards South Road (T 31-2). This manoeuvre is illustrated in Exhibit P5.
This last section, heading east, was a bitumen driveway. It was the entrance to a car-park on the eastern side of Thebarton Oval. This was one of two driveways. They are parallel to each other and separated by a median strip 5.4 metres wide.[1]
[1] Report of Mr Graham England, Accident Reconstructionist, dated 16 April 2014, Exhibit P11, page 7
The Events of 14 December 2006
The plaintiff said he was wearing dark navy-blue work-wear that morning (shorts and shirt), dark socks and brown work boots with steel caps. He had on a ‘safety vest’, which I assume was made of a ‘high-vis’ fluorescent material. He said it was yellow with black stripes (T 39). He carried a backpack made of dark material, in black and blue colours, on his back. It had a small pocket made of ‘mesh’ material on the back, and he turned on a red flashing tail-light in the pocket, which was visible from behind (T 40).
The plaintiff said that before leaving the house, he turned on the tail-light fixed to the bicycle, which was the same as the light in the mesh pocket (T 40). He also turned on the front light, which he used on a constant beam so he could see the road surface (T 41).
The plaintiff’s evidence about the lights was corroborated by his second cousin, Mr Vasilios (Bill) Lathouros, who happened to be walking along North Parade as the plaintiff left his house. The two men chatted, with Mr Lathouros walking and the plaintiff riding alongside him at walking pace. Mr Lathouros confirmed that the plaintiff was wearing the clothing I have described, the safety vest and a helmet, and that there was a flashing light operating on his backpack, as were the front and rear lights on his bicycle (T 174).
About five minutes later, Mr Lathouros came across the scene of the accident. At one stage, he turned off the flashing rear light on the bicycle, which was leaning up against a tree (T 176).
The plaintiff said that he rode his bicycle along the route I have just described. He said he rode down the right-hand side of the southern driveway. When asked which of the two driveways he rode down, the plaintiff said it was

the ‘southern exit’ (T 33). When asked why he chose that driveway, he said:
Because I like to be close to South Road, see the oncoming traffic when I’m riding down.
(T 35)
It is not clear what he meant by that answer. The northern driveway was only 5.4 metres north, and parallel to the southern one. The view to the south towards oncoming traffic would have been virtually identical.
The plaintiff said he stopped about a metre from the right-hand kerb. His front wheel was just in the gutter between the driveway and South Road (T 44-5). This seems an unexpected place to stop. It would seem more likely that if a cyclist is intending to turn left, he would position himself at the left-hand side of a one-way driveway, rather than the right-hand side. His explanation was that ‘there was obstruction with trees’, and that ‘if I stopped further back it would be pointless’ (T 45). This is perplexing. Stopping three or four metres further north would not have detracted from the view to the south – if anything, it would have given a very slightly wider view. If, by his answer, the plaintiff meant further back from South Road, then stopping on the right-hand side is unexplained.
The plaintiff said he looked to the south. He saw a truck coming towards him. He waited for it to pass. It took about 20 to 30 seconds (T 46).
The plaintiff then saw another truck ‘on the horizon further down’, coming towards him. It was in the left lane. He said it was just over 200 metres away. He said:
I waited until it got close to the West End sign and I proceeded to go left.
(T 47)
The distance from the plaintiff’s stated position to the sign has been measured at 132.7 metres (Report of Mr England, Exhibit 11, page 8). The plaintiff estimated the distance to the truck as 150 metres when he moved off (T 47). When asked why he waited while the truck went from 200 metres to 150 metres away, he said ‘I felt I was safe to go’ (ibid). Again, this answer is perplexing. When the plaintiff saw that the truck was 200 metres away, it was presumably safe to go then. Why he waited until the truck was 50 metres closer before going is not clear. The plaintiff was either unable or unwilling to explain his actions any further.
The plaintiff said that after he went left, he rode north, parallel to the gutter and about 10 centimetres out from its edge, on the bitumen surface of South Road. He described what happened next:
Q.   Did you feel at any stage the second truck that you saw behind you.
A.   I knew that the truck was coming.
Q.   Do you recall hearing it.
A.   Yes.
Q.   What did you hear.
A.   I recall hearing it getting louder.
Q.   Did you feel it.
A.   I could start to feel it.
Q.   What did you feel.
A.   It was getting close.
Q.   What happened next.
A.   It passed me and I could see it.
Q.   What could you see of the truck.
A.   The truck was passing me, I could see the truck.
Q.   What happened next.
A.   The left part of the truck hit the right handle bars and knocked me off my bike.
Q.   Do you know what part of the left-hand side of the truck hit you.
A.   No.
Q.   Can you describe how hard the contact was between the left-hand side of the truck and the handle bar of your bike.
A.   It was pretty hard.
Q.   The contact was between the left-hand side of the truck and what part of your handle bar.
A.   Just the end of the handle bar.
Q.   On what side.
A.   On the right-hand side.
Q.   What happened next.
A.   I don’t know. I fell off my bike.
Q.   Why did you fall off your bike.
A.   Because I got hit.
Q.   What happened next.
A.   I remember being under the truck and then getting thrown out.
Q.   Did anything happen whilst you were under the truck.
A.   I got my leg run over.
Q.   Which leg.
A.   My left leg.
(T 48-9)
The plaintiff said he remembered a lady coming to his aid, getting a drink from his backpack; Mr Lathouros at the scene; Mr Lathouros using the plaintiff’s mobile phone to call the plaintiff’s wife; the ambulance officers attending; ‘unbearable’ pain in his left leg; and then waking up in hospital (T 50‑1).
The following further points arose from the plaintiff’s evidence:
·he was ‘100%’ certain that he stopped before entering South Road (T 51);
·he had never ridden onto any major road without stopping first (T 52);
·he was ‘100%’ certain he stopped in the southern driveway (T 52);
·he had never ridden onto South Road from the northern driveway before (T 52);
·he had no idea of the speed he reached on the bicycle before the accident (T 55);
·he estimated that from the time he decided to move off to the contact between the truck and the handlebar of his bicycle was between 10 and 20 seconds (T 56);
·as at 14 December 2006 there was no impairment of his hearing or eyesight (T 56-7).
The following further points arose during cross-examination of the plaintiff:
·the speedometer on his bicycle was set to show the time, not speed, because he did not wear a watch (T 60-3);
·he had not recovered the backpack since the accident – it was apparently lost while he was in the ICU (T 69);
·the mesh material of the pocket on the rear of the backpack did not obscure the red tail-light inside (T 71);
·he had fitted a mudguard to the rear of the bicycle. This was fixed to the seat stem. A tail-light was also fixed to the seat stem, below the mudguard. (T 77-9).
Northern (Exit) Driveway or Southern (Entrance) Driveway
Despite his earlier evidence that he obeyed the traffic laws at all times, and had never disobeyed a stop sign (T 58), the plaintiff was ignoring a ‘No Exit’ sign if he rode down the southern driveway. It was an entrance road to the car‑park. This is illustrated in photograph Exhibit P5, taken by his wife in 2009. He had earlier stated that the layout was ‘exactly the same’ as it was on 14 December 2006 (T 55). He suggested in cross-examination that there may have been no sign there in 2006 (T 81). I do not accept his evidence about this.
The plaintiff pretended not to know who Mr England was, until he admitted he well knew who he was when pressed by counsel in cross-examination (T 83‑4). In a letter of instructions from the plaintiff’s solicitors, dated 19 March 2014, to Mr England (Exhibit D7), Mr England was initially asked to assume that the plaintiff rode out of the northernmost exit driveway. Mr England records in his report (Exhibit P11, page 1) that he was later told by the plaintiff that this was incorrect. By that time, the plaintiff had read the report of Mr Michael Griffiths, the accident reconstructionist engaged by the defendant, which suggested that if the plaintiff had ridden out of the northern driveway, the defendant would have had no chance to see him and take any evasive action.
The plaintiff denied in evidence that he had ever told anyone that he had ridden out of the northern driveway (T 93). He had no explanation for his solicitors’ letter (T 109). I am highly suspicious of the plaintiff’s evidence about this. His answers in cross‑examination were evasive and argumentative. His pretence that he did not understand Mr Griffiths’ report is completely unconvincing (T 88-93).
In examination-in-chief, the plaintiff was asked to draw the route he took on an aerial photograph (Exhibit P2). There appear to be two driveways on the photograph, and he drew a line along the northernmost of the two. It is true that the driveways appear to be spaced more widely apart than is depicted on Mr England’s plans. It is significant, however, that when given a choice of only two, the plaintiff chose the northernmost. This was early in his evidence when it might be accepted that he would be nervous. However, I found his explanation confusing and unsatisfactory:
Yes, yes, and then I remember saying that the oval finished there and that’s why I’ve turned it off there because that’s where the oval and that’s where the entry was. So the oval doesn’t go continue anymore that’s why I marked it there. If you

look at the pictures they don’t look like they’re very close like they should be in the

picture here. They look quite apart more than this room. If you look at the picture that’s what I’m looking at.
(T 103)
This explanation is also perplexing. The ‘entry’ was not where he drew it. The line he drew was along the exit, which was on the edge of the reserve. Wherever it was depicted on the aerial photograph, the entry was south of that point. His answers in re-examination (T 171-2) do not provide any better explanation for the way the plaintiff marked the exhibit.
The plaintiff asserted that he did not go down the northernmost driveway because it was obstructed. This suggestion is recorded in Mr England’s report (Exhibit P11, page 1). It is inferred in Mr England’s report that the plaintiff told him this on 11 August 2013, when he visited the scene. The nature of the obstruction was described by the plaintiff as the presence of ‘bollards’, which were so close together that he could not ride between them (T 144). No such bollards appear in any of the photographs of the scene. My attention was not drawn to them at the view. They were not mentioned by Mr England in his report, nor do they appear in any of the scale plans Mr England drew of the scene. Mr England said that the plaintiff did not point them out to him when they were at the scene (T 233). It is extraordinary that Mr England did not note such an unusual feature when it forms such a central part of the plaintiff’s narrative as to the causation of this accident.
For those reasons, I have very strong reservations about the truthfulness of the plaintiff’s evidence on this topic. I indicate that I am not satisfied, on the basis of the plaintiff’s evidence, that he did emerge from the southern driveway on to South Road as he alleges. The plaintiff’s evidence is not sufficiently reliable, for reasons I will develop later, to enable such a finding to be made. There is no other evidence upon which a finding on that topic can be made, so I make no finding as to which driveway the plaintiff used before entering South Road.
Plaintiff’s Rest Position after Accident
In his report (Exhibit P11, page 4), Mr England stated that he attended the scene of the accident on Sunday, 11 August 2013, and that the plaintiff indicated to him his ‘path towards the accident scene and where he considered that he had come to rest after the accident’. Mr England later drew up a plan, based on this information and his measurements and observations.
The plaintiff’s ‘rest position’ had been clearly depicted in the photographs taken by Brevet Sergeant Liebich on the morning of the accident (Exhibit P1, numbers 1-5, 7, 8 and 37). B/Sgt Liebich drew a circle in yellow paint on the roadway around a pool of blood, some of which had flowed down towards the gutter in a westerly direction (T 164). B/Sgt Liebich said that the circle was ‘fairly close’ to the kerbing alignment of the northern driveway, or ‘slightly north’ of it, no more than a metre (T 161).
In his report (Exhibit P11), Mr England recorded that the plaintiff ‘indicated to me his path towards the accident scene and where he considered that he came to rest after the accident’ [5.1]. He drew a diagram of the accident scene which is appended to his report. He places the plaintiff’s rest position at 4.3 metres north of the northern kerbing alignment of the northern, exit, driveway [6.9]. He later corrected this distance to 2.3 metres (T 224). He based this measurement on B/Sgt Liebich’s photographs. He ignored the position indicated by the plaintiff for the purposes of this exercise.
The plaintiff indicated a post-accident rest position to Mr England at the accident scene on 11 August 2013. Mr England noted the position on a scale diagram of the accident scene (part of Exhibit D13). He acknowledged that this was a long way north of the position indicated by B/Sgt Liebich (T 252). He said he ignored the information from the plaintiff, and based his opinion as to the rest position on the photographs Exhibit P1 (T 224).
In cross-examination, Mr Possingham tried to question the plaintiff about what he had indicated to Mr England in August 2013 as to his rest position. The plaintiff repeatedly evaded these questions. His evidence was confined to:
I don’t remember where I landed, where I rested, I don’t. I’d just fell out of the back of a truck, I can’t remember which way I was facing or anything. All I remember is praying to God.
(T 111)
Mr Possingham’s questions continued for some time (T 111-14), but the plaintiff steadfastly refused to address himself to counsel’s questions. I am satisfied that the plaintiff was being deliberately evasive on this topic. He well understood the significance of the issue (T 123). The further south he entered South Road, and the further north he came to rest, the more time the defendant had to see him on the road, and the more negligent the defendant would appear. In my view, the plaintiff was deliberately exaggerating about that, so much so that Mr England ignored what he said in view of the objective evidence to the contrary.
The Defendant’s Version
The defendant was born in March 1951. At the date of the accident he was 55 years old. He has been driving trucks since he was 21, including articulated vehicles. He has been driving B-doubles for 15 years.

On 14 December 2006, the defendant was employed by Bunker Freight Lines, driving between Melbourne and Adelaide. He would drive two full trips and one part-trip, changing over at Nhill, per week. He would leave Melbourne between 8 p.m. and 9 p.m. He would stop for half an hour or so at Nhill. He would arrive in Adelaide around 5.30 a.m. to 6 a.m. He would enter the city via Glen Osmond Road, Greenhill Road, Richmond Road and South Road, heading towards Bunker’s Adelaide depot.
The defendant said he was conscious of the speed when he was driving, because of the presence of red light cameras, and because his employer’s policy was that drivers paid their own speeding fines (T 304). He said he would pass cyclists on the road many times. His practice was to move into the right lane (he usually drove in the left lane to avoid cars in front turning right) and give them ‘plenty of room’ (T 305).
By 14 December 2006, the defendant had driven on South Road hundreds of times. He said that nothing unusual had occurred on that trip until, at a spot not far from the bus shelter on South Road, he saw ‘something fly out the side’ of the truck while he was looking in his rear-vision mirrors (T 307). He said that the thing flew out from ‘the back of the back trailer’ (T 308). He stopped the truck and went back and saw the plaintiff lying on the ground. A pushbike was in the left-hand lane ‘just off the gutter’, about three to four metres from the plaintiff. Two women were present, attending to the plaintiff until the ambulance arrived. He stood the bicycle up and put it next to a post.
The defendant said he did not know where the cyclist had come from. He did not see him prior to the accident (T 308-9).
The defendant was unable to say whether the scratch or scuff mark on the rear trailer below the ‘Air Ride’ sign, depicted in Exhibit P1, photograph 13, was present prior to the accident (T 311). He could not comment about the marks on the tyres in photographs 16 and 17 either (T 313).
In cross-examination by Mr Warren, the following points emerged:
·the defendant underwent a yearly medical examination and had no medical conditions at the time of the accident;
·he had been driving this same route for 12 years, about 100 trips a year;
·he was previously aware of the car-park on the left-hand side of South Road, and the driveways associated with the car-park;
·he had never seen cars entering or leaving the car-park at that time of the morning;
·he did not expect a bicycle to emerge from either driveway. He had seen ‘the odd one or two’ bicycles on South Road in the 12 years of driving along there at around that time of the morning;
·he was aware of the traffic lights at the corner of Ashwin Parade and South Road, and a red light camera installed there;
·he usually had a radio on in the cabin, tuned to the ABC, but turned it off when he reached Adelaide to ‘look straight on the road’ (T 325);
·he used his CB radio in the metropolitan area on the ‘odd’ occasion, but generally turned it off ‘down the bottom of the hill’ (T 326);
·he was ‘not really’ tired (T 327);
·he was driving in the middle of the left lane, he was not straddling the lane line (T 329);
·there were no cars on his right that he could recall;
·there were no vehicles in front of him up to the Ashwin Parade lights (T 330);
·he thought that the lights at Ashwin Parade were green (T 331);
·he had checked his speed a few seconds earlier, and he was travelling at 55 kilometres per hour (T 332);
·he refused to accept that the plaintiff was on the road in front of him, even as a possibility. He argued that if he had been ahead, he would have hit the cyclist ‘in the front’ (T 333) – in other words, with the front of the truck;
·he accepted that he was ‘focussed’ on the lights at Ashwin Parade, on whether there were cars to his right, on checking his speedometer, and not expecting anything to emerge from the car-park, or anything travelling on South Road at that time, but he insisted he would have seen the plaintiff if he had been in front of the truck at any stage.
I pause here to indicate that I do not find the defendant’s evidence on this last point surprising. The process of driving any vehicle involves constantly monitoring a variety of pieces of information as one progresses. It is somewhat artificial to dissect these various pieces of information in the way Mr Warren did here, and then suggest that the defendant’s evidence should not be accepted because there were several of them. The defendant had been driving heavy vehicles for about 34 years, this was very early in the morning when there was little traffic. There is no reason to think that the defendant would not have been keeping a proper lookout merely because he was ‘focussed’, to use Mr Warren’s word, on the other matters he identified, particularly the traffic lights ahead.
Resuming my summary of cross-examination:
·he said he saw ‘something dark’ in his rear-vision mirror, on the left-hand side of the truck, it went ‘up in the air’, about a metre or so off the ground (T 334);
·he stopped because he wanted to see what the object was (T 335);
·he did not alter the course of the truck from the middle of the left lane as he drove along South Road (T 340);
·he estimated that the left-hand side of the truck was about two-thirds of a metre, or about two feet, from the western gutter of South Road (T 340).
The defendant was a very straightforward man. His answers to questions were appropriate, albeit brief, and he did not offer detail if it was not asked for in the question. His story was a simple one, he told it without a hint of defensiveness, and he did not attempt to reconstruct the events in his mind. I accept his evidence, in particular, that he did not see the plaintiff before the impact, that he probably would have seen him had he been in front of the truck for more than two or three seconds, and that the truck’s course did not deviate from its line in the middle of the left lane at any relevant stage.
The Police Investigation
Detective Blake Horder, who was then a First Class Constable performing uniformed patrol duties, attended at the scene of the accident with Constable Kate Venn. Their Operations Log (Exhibit D20) records that they arrived at 5.32 a.m. The ambulance arrived soon after they did. The plaintiff was still lying on the roadway being attended to by two women. Det. Horder quickly noted the seriousness of the plaintiff’s leg injuries. He said that the plaintiff was lying in the position indicated by the yellow circle in photograph number 8 of Exhibit P1 (T 346). He referred to the plaintiff’s blood moving with the curvature of the road and pooling in the gutter (ibid).
In an affidavit sworn on 10 December 2008 (Exhibit D21), Det. Horder referred to a ‘scuff mark on the left hand side of the front of the second trailer’ (para. 9). In evidence, he said that this was an error, and that what he meant to say was ‘the left-hand side of the rear of the second trailer’ (T 347). He said the scuff mark he was referring to is depicted in Exhibit P1, photograph 13, the one below the ‘Air Ride’ logo.
Det. Horder concluded, particularly having regard to the location of the scuff mark on the trailer and the damage to the bicycle, that the plaintiff had ‘clipped’ the side of the truck ‘about halfway along’ as he exited from the northern driveway from the car-park (T 347-8). In cross-examination, Det. Horder could no longer remember what he meant by ‘halfway along’, in particular whether he meant halfway along the entire truck and two trailers, or halfway along the second trailer (T 365). There is no scuff mark in any of the Exhibit P1 photographs which corresponds to either position. He saw no obstruction on either of the two driveways to traffic coming from the car-park onto South Road (T 350).
Det. Horder said that no alcohol or other common drugs were detected in the blood samples taken from the defendant that morning.
Det. Horder said that the only blood noted on the defendant’s vehicle was that noted on the mudflap behind the rearmost wheel of the second trailer, and on the tail-light housing behind that (Exhibit P1, photographs 17 and 18) (T 355).
The following matters arose during cross-examination:
·investigators from the Major Crash Investigation Unit are much more experienced in accident reconstruction than are general patrol officers. Det. Horder was a general patrol officer. He said he would defer to the opinion of B/Sgt Liebich on that subject. In fact, Det. Horder recorded in his affidavit, at paragraph 13, that his opinion that the plaintiff rode out of the northernmost driveway was shared by Major Crash Investigation Unit officer Wayne Liebich. In fact, B/Sgt Liebich gave evidence that he had always thought that the plaintiff had ridden out of the southernmost driveway (T 159; T 167). Det. Horder conceded that he may have misunderstood what B/Sgt Liebich told him on the day (T 363);
·there were no actual marks or other objective evidence to show from which driveway the plaintiff entered South Road (T 358);
·there were no eye-witnesses to the accident apart from the plaintiff and the defendant.
The plaintiff was never spoken to by the police as to the circumstances of this accident (T 359). I therefore ignore evidence, led without objection from the police officers by the defendant, about their conclusion as to whether the defendant had committed any road traffic offence – it is very surprising that they reached a conclusion about that without having spoken to one of the persons involved in the accident, and the only one who observed, or at least might have observed, what actually happened.
According to the Operations Log (Exhibit D20), B/Sgt Liebich arrived at the scene of the accident at 6.28 a.m. on 14 December 2006. He has been investigating motor vehicle accidents, and giving evidence about them, for more than 27 years.
B/Sgt Liebich took the 37 photographs in Exhibit P1. He drew the yellow circle in the roadway depicted in several of the photographs, to indicate the plaintiff’s ‘rest’ position. This was indicated to him by Det. Horder, and by the pool of blood around which he drew the circle.
As to the precise location of the yellow circle, he said it was either in line with or no more than a metre north of the northern kerbing alignment of the northernmost driveway (T 161).
As to the defendant’s vehicle, B/Sgt Liebich referred to the ‘scuff mark’ below the ‘Air Ride’ sign in photographs 12, 13, 15 and 19; the scuff mark on the tyre wall of the outside tyre on the lead axle in the tri-axle assembly at the rear of the rear trailer in photographs 14 and 16, which he did not suspect was blood (T 156); and the spray of what appeared to be blood on the mudflap behind the rear wheel in the rear tri-axle assembly and on the tail-light housing in photographs 17 and 18. He concluded that these latter marks were caused when that rearmost wheel ran over the plaintiff’s leg (T 156).
B/Sgt Liebich also noted a scrape mark on the right-hand side of the handlebars of the plaintiff’s bicycle, and a twisting of the handlebars anti-clockwise to the bicycle (photographs 31 and 32). He concluded that these latter marks are consistent with the bicycle having been struck on the right-hand side handlebar by the left-hand side of the defendant’s vehicle. I agree.
As to how the accident may have occurred, B/Sgt Liebich said:
Given the conversation with the officers at the scene, they had given me information about what they’d been told about the circumstances and their information combined with the absence of damage to the bicycle supported the bicycle probably came off of the footpath or in that area and was parallel to the truck when it got hit.
(T 158)
When asked which of the two driveways the plaintiff may have used to enter South Road, he said:
It takes time and it takes distance for an object involved in a collision to come to rest. Given the fact that we assumed that the paint mark that I put down was where the cyclist came to rest after the incident it would be, in my opinion, unreasonable to expect him to come out of the northernmost exit of the car parking area, given the fact that he’s got to hit the truck, fall off the bike and be run over by the truck and he’ll move – in that time he’ll move north. So to come out of that northern one would just, I think, doesn’t fit with the evidence. If anything, he’s got to have come out of the southern one or in that sort of general area.
(T 159)
B/Sgt Liebich did not venture an estimate of the distance the plaintiff would have moved after the impact. As I will shortly discuss, Mr England estimated the distance at two metres, and Mr Griffiths said one to three metres. Having regard to the width of the northern driveway (3.9 metres, widening to 7.7 metres at the entrance to South Road), I do not accept that the falling distance precludes the hypothesis that the plaintiff exited from the northern driveway. Neither Mr England nor Mr Griffiths thought so. To that extent I prefer their evidence on this topic to that of B/Sgt Liebich.
B/Sgt Liebich said there was no evidence at the scene to indicate the initial point of impact. As to the mechanics of the collision, he formed the view that, having regard to the absence of other damage to the bicycle, it is likely that the plaintiff’s bicycle struck the side of the defendant’s vehicle at somewhere between a 45 degree angle and parallel (T 162).
Accident Reconstruction - Plaintiff
As I have already noted, the plaintiff engaged Mr Graham England to prepare a report giving his opinion as to the circumstances of the accident.
Mr England is a former police officer. He was a senior member of the Accident Investigation Section, later the Major Crash Investigation Unit, until 2008. Since 1990, he has undertaken many short courses in accident investigation and reconstruction. He was given a role within the Major Crash Investigation Unit as a ‘collision reconstructionist’ in 1992, and continued in that role until 2008. Since then, he has practised as a private consultant. He has given opinion evidence in that context on many occasions, at every level of the court system. Although Mr England is not an engineer, the courses he has undertaken and his long experience qualify him to give opinion evidence in these matters.
- Assumptions Made
Mr England’s first report was dated 16 April 2014 (Exhibit P11). He was asked by the plaintiff’s solicitors to make the following assumptions, which are set out at pages 1-2 of his report:
-    At the time of the accident your client weighed approximately 80 kilograms,
-    Your client pedalled along the northern most path through the bituminised car park immediately east of Thebarton Oval and proceeded to travel along the northern most driveway of that car park towards South Road. (After receiving your initial instructions, I was further advised that the northern driveway of the 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 the two, which at that time was the northern most available driveway,
-    Your client brought “the bicycle” to a complete stop at the cross-over of the then northern most available driveway of the car park (a recent development of the Thebarton Community Centre has resulted in the subject driveway being relocated) at a point nearest to the southern side of the cross-over. (The cross-over being the position where the roadway joined with the western side of South Road),
-    Having done so, your client waited for traffic travelling in a northerly direction along South Road to pass, and then observed “the truck” on South Road at or about a point adjacent to the location of the West End Beer sign in front of the lawn bowls playing field directly opposite the then Adelaide Plumbing and Building Centre, now trading as “Demor” (“the sign”),
-    Your client decided to turn left onto South Road, placed his feet in the stirrups of the bicycle pedals and commenced the turn so as to remain close as reasonably practicable to the kerb.
-    Your client was riding to work, wearing steel capped work boots and a high visibility vest,
-    Your client was also wearing a back pack that had a flashing red light attached and facing the rear.
If any of the significant assumptions made by Mr England are not proved in evidence, the opinions which are based upon those assumptions are inadmissible[2]. In Dasreef, Heydon J referred to the three rules of admissibility of expert opinion evidence. The second of these is the ‘proof of assumption’ rule. His Honour said, at [88-90]:
… But if, at the close of the tendering party's case, the party opposing the tender draws attention to the continuing gap between the primary facts assumed by the expert and the evidence called to prove them, and to the failure of the tendering party to fulfil the undertaking to close that gap, it may be the duty of the court to reject the evidence even if it has been conditionally admitted. That duty will exist if, to use the High Court's language, the missing "basis" which has left the gap is so great that the expert's opinion has "no value" – that is, no probative value – because in that event it cannot have any relevance and it is therefore inadmissible. If it has very "little" value, the same may be true. If it has some value, it may be relevant. But it may be at risk of exclusion in exercise of a discretion in criminal cases, and, if one exists in civil cases at common law, in civil cases too, to exclude evidence the probative value of which is outweighed by its prejudicial effect …
Conclusion about Ramsay v Watson. It is not true to say that Ramsay v Watson held that a failure to prove the assumed factual basis of an expert opinion goes only to weight, not admissibility. It is not true to say that no "basis rule of admissibility" was laid down. The Full Court of the Federal Court of Australia correctly cited Ramsay v Watson as holding: "The proposition that an expert's opinion based upon certain assumptions which are not ultimately proved in evidence is irrelevant is a fundamental principle of the law". Irrelevant evidence is inadmissible.
Function of the proof of assumption rule. The function of the proof of assumption rule is to highlight the irrelevance of expert opinion evidence resting on assumptions not backed by primary evidence. It is irrelevant because it stands in a void, unconnected with the issues thrown up by the evidence and the reasoning processes which the trier of fact may employ to resolve them. If the expert's conclusion does not have some rational relationship with the facts proved, it is irrelevant. That is because in not tending to establish the conclusion asserted, it lacks probative capacity. Opinion evidence is a bridge between data in the form of primary evidence and a conclusion which cannot be reached without the application of expertise. The bridge cannot stand if the primary evidence end of it does not exist. The expert opinion is then only a misleading jumble, uselessly cluttering up the evidentiary scene.
[Footnotes omitted]
(see also R v Fowler,[3] Makita (Aust) Pty Ltd v Sprowles,[4] R v Cullen,[5] R v Duryea,[6]).
[2] Dasreef Pty Ltd v Hawchar [2011] HCA 21
[3] (1985) 39 SASR 440 at 443 per King CJ
[4] (2001) 52 NSWLR 705 at [85] per Heydon JA
[5] [2005] SASC 218
[6] [2008] SASC 363 at [42] per White J
- Materials Provided to Mr England
Mr England was provided with all the relevant documents and with the photographs of the accident scene taken by B/Sgt Liebich on 14 December 2006 (Exhibit P1). He inspected the scene on Sunday, 11 August 2013. The plaintiff and his solicitor also attended the scene with Mr England.

Mr England drew a scale plan of the scene which is attached to the notes. On that plan, Mr England placed two circles, each intersected by crosses (T 252). Mr England said the southernmost circle depicts the position where the plaintiff said he was stationary before entering South Road (T 251). The northernmost circle depicts the position indicated by the plaintiff as being his ‘rest position’ after the accident (T 252). This position is a long way north of the position indicated by B/Sgt Liebich and depicted in the photos, at least 10 metres further north if the diagram is even roughly accurate.
I will refer to these items of information as I discuss the various issues considered by Mr England in turn.
- Features of the Accident Scene
Mr England’s observations of the scene were as follows:
·at the relevant part of South Road in the general vicinity of the accident scene, the left northbound lane was between 3.6 and 3.8 metres wide (para. 6.5);
·the southern, or entrance, driveway from South Road to the car-park adjacent to Thebarton Oval was 4.0 metres wide. The northern, or exit, driveway to South Road was 3.9 metres wide and the median strip between those driveways was 5.4 metres wide (para. 6.6);
·the plaintiff’s rest position was approximately 0.5 metres east of the western kerb of South Road, and approximately 4.3 metres north of the northern kerbing alignment of the northern, exit, driveway (para. 6.9). This was later amended to 2.3 metres north of the northern kerbing alignment;
·the distance travelled by the plaintiff from the standing position he indicated near the southern kerb of the southern, entrance, driveway to his rest position was approximately 16.5 metres (para. 6.10);
·the distance from the plaintiff’s standing position to the sign outside the bowling club, where the plaintiff said the truck was when he moved off, was 132.7 metres (para. 6.11).
- Rest Position
One factual issue which was important to Mr England’s analysis was the plaintiff’s rest position after the accident. He said he used the photographs taken by B/Sgt Liebich, Exhibit P1, to determine that position. He ignored what the plaintiff told him about his rest position (T 224).
Unfortunately, none of the photographs was taken from a position in line with the northern kerbing alignment of the northernmost or exit driveway. I have already noted that B/Sgt Liebich’s evidence was that the plaintiff’s rest position was no more than a metre from the northern kerbing alignment of the exit driveway. B/Sgt Liebich was at the scene, and had the best opportunity to make that assessment. I accept his evidence about that. There is a large discrepancy, then, between B/Sgt Liebich’s evidence and Mr England’s assessment of 4.3 metres, which he has assumed to be correct for the purposes of his calculations.
In cross-examination, Mr England explained that the 4.3 metre figure was an error, and it should have been 2.3 metres (T 224-5). He conceded that could have been 0.5 metre out (T 225). This could bring the figure down to 1.8 metres. He refused to accept B/Sgt Liebich’s evidence that it was less than a metre, relying on the photographs (T 226-8). I reject his evidence about that. I do not consider it possible to form such a conclusion from the photographs, trying to correct for the angle of the camera to the kerb (see further discussion at T 231-3). As stated, I accept B/Sgt Liebich’s evidence about the plaintiff’s rest position.
I find, therefore, that Mr England’s assumption about the plaintiff’s rest position after the accident does not correspond with proven facts.
- The Plaintiff’s Fall
Mr England’s calculations were based upon the premise that the plaintiff’s centre of mass (including the bicycle) fell from about 0.95 metre to a prone position, so a drop of about 0.85 metre. He calculated that such a fall would take approximately 0.4 seconds. Assuming that the truck was travelling at 55 kilometres per hour, or 15.278 metres per second, the truck would have travelled approximately 0.4 x 15.278 = 6.1112, or approximately six metres, during the plaintiff’s fall. Mr England said the figure was 6.35 metres rather than 6.1112, but I do not think the difference is significant.
Mr England estimated that the plaintiff would have started to fall no more than two metres south of his rest position (T 238). He based this on the plaintiff’s statement to him on 11 August 2013 that he was ‘almost stationary’ when he first contacted the truck (Exhibit P11, para. 8.5). This was not the plaintiff’s evidence. His evidence was, as I have already noted, that he was riding at, or close to, his ‘normal’ riding speed when contact occurred (T 131, T 133-4). Indeed, the plaintiff specifically denied in evidence that he was almost stationary at the time the collision occurred (T134-5). I will refer to this issue again.
- Tail-Light Testing
Mr England inspected the plaintiff’s bicycle on 11 August 2013. On 3 April 2014 he conducted some tests on the visibility of the tail-light on the plaintiff’s bicycle at night on the road outside the plaintiff’s home.
Mr England concluded that the tail-light would have been obscured by a mudguard fitted above it to the seat stem of the bicycle for a distance of 30 metres. Beyond that it was visible up to 50 metres. It was not tested beyond that. Less than 30 metres away, he said the light became visible ‘even half a step to one side from directly behind’ (T 207). No testing was done to measure the precise angle at which the light became visible, nor was testing done to determine visibility from the driver’s position in the defendant’s truck, nor did Mr England do any testing using a tail-light in the mesh pocket of a similar backpack as described by the plaintiff.
In view of the conclusions I have reached about the evidence of the plaintiff’s movements prior to impact and the opportunity, or lack of it, that the defendant would have had to see the plaintiff’s tail-lights, I do not consider that Mr England’s investigation of the tail-lights takes the matter any further.
- Plaintiff’s Statements to Mr England
At the scene, Mr England recorded in his notes that the plaintiff gave him a number of further items of information about the accident, some of which were important to Mr England’s calculations. Mr England’s notes are Exhibit D13. I will deal with each item from the notes in turn:
·‘riding 1 m from kerb’
The plaintiff admitted that he told Mr England that (T 135). However, he had previously said in examination-in-chief that he had been riding 10 centimetres from the edge of the concrete gutter (T 47), or 30 to 40 centimetres from the kerb (T 135).
This issue also formed a significant part of Mr England’s reasoning process. At [10.10] of his report Exhibit P11, Mr England writes:
The width of the left lane of South Road was between 3.6 and 3.8 metres in the vicinity of the approximate point of impact. “The truck” would have been approximately 2.4 to 2.5 metres in width and the width of “the bicycle” and its rider would have been approximately 0.45 metre. Adding the width of “the truck” and “the bicycle” and its rider gives a total of 2.85 to 2.95 metres, leaving approximately 0.75 to 0.95 metres for “the truck” to pass “the bicycle” if it stayed within its own lane and assuming that the rider was riding on the kerb, which was not the case. If “the bicycle” was travelling just 0.25 metre out from the kerb then this would reduce the distance between the vehicles to between 0.5 and 0.7 metre, if “the truck” remained in the left lane. This would not be a safe distance considering the relative size, mass and speed of the vehicles. There is a road safety campaign that is proposing that motor vehicles should give cyclists at least 1.0 metre of clearance when they pass. Whilst it is not law, it is a safety initiative that has credibility. The fact that contact was made in this accident suggests that “the truck” driver had not allowed a reasonable distance between his vehicle and “the bicycle” when he started to pass it. “The truck” should have moved over and straddled the lane line separating the left and right lanes, especially considering that there were no other vehicles in the vicinity that would have prevented it.
Mr England made no mention in his report of the information from the plaintiff that he was riding one metre out from the kerb. It would appear that he has ignored the information in his reconstruction. I find this surprising. If the plaintiff was riding one metre out from the kerb at impact, then the conclusions in the above quotation are based on a false premise, and carry no weight.
·‘turned 16 km/h on speed’
The plaintiff admitted he told Mr England that (T 138). He had previously said in examination-in-chief that his speedometer was set for time, not speed (T 60-1).
One of the scenarios put forward by the defendant is that the plaintiff turned onto South Road without stopping. One very reasonable inference to be drawn from Mr England’s note is that the plaintiff was telling him that the speedo was showing 16 kilometres per hour as he was turning. Mr England’s response to that suggestion was:
No, no. No, he moved from stationary, turned onto the roadway, read 16, the truck went past him, he moved over and became almost stationary and then the collision occurred.
(T 251)
This is Mr England’s opinion, but his is not the only interpretation of the plaintiff’s statements. In any event, the plaintiff’s evidence that the speedometer was not indicating speed is irreconcilable with either interpretation.
For all these reasons, the calculations made by Mr England based on the plaintiff’s information as to his speed on the bicycle at any relevant moment cannot be relied upon. The plaintiff’s evidence is so vague and self-contradictory about these matters that it cannot form a valid basis for Mr England’s conclusions (Dasreef, supra).
·‘slowed as truck passed – almost stationary’
The plaintiff admitted that he told Mr England that (T 135). Mr England regarded this as an important factor, indeed a pivotal factor, in his calculations. The plaintiff had previously told the court in cross-examination that he was cycling at close to normal cycling speed when the impact with the truck occurred (T 133). He denied that he was ‘almost stationary’ at impact (T 134). As I will shortly discuss in relation to the three scenarios put to Mr England in cross-examination, the only scenario which is consistent with the plaintiff’s evidence is Scenario 3, and this could only have been true if the plaintiff had almost stopped on impact. Mr England acknowledged that if the evidence does not establish that fact, then his reasoning has no basis (T 285);
·‘stood up on pedals almost stopped’
When asked why he had not mentioned in his report that the plaintiff told him he was standing up on his pedals at the time of the impact, Mr England said:
I was instructed to use the information given to me by the instructing solicitor.
(T 249)
The solicitors’ letter made no mention of whether the plaintiff was standing on the pedals or sitting on the seat. It was a relevant matter.
Mr England agreed in cross-examination that the ‘fall time’ of a rider would be ‘slightly longer’ if the rider were standing on the pedals rather than sitting on the bicycle seat (T 250). Another matter, which was not discussed, is that when a cyclist stands up on the pedals, he or she often moves the handlebars from side to side with each downward thrust on the pedal. Finally, if the plaintiff was standing up at the time of impact, an inference might be drawn that he was still accelerating, and that he was not, as he suggested, just riding along normally at a fairly constant speed. These are important issues which were not dealt with because Mr England chose to ignore this evidence from the plaintiff. I should not speculate further in the absence of further evidence on the topic.
·‘truck went past – wide – straddling lane line – came over 1 m – moved to gutter – collided between axles’
The clear implication of Mr England’s note is that the plaintiff was asserting that the defendant’s vehicle moved towards the plaintiff by about one metre, and it was then that the plaintiff moved towards the gutter.
When challenged about these matters, the plaintiff began referring to ‘demons’ in his head. The following passage of evidence was particularly significant:
Q.   Mr England has recorded this: ‘Truck went past wide straddling lane line. Truck came over 1 m, moved gutter, collided between axles’. I want to ask you about that first part. Did you tell England the truck had gone past wide, straddling the lane line.
A.   If I’ve said it in the report, I would have said it, but it’s all demons in your head.
Q.   Do you remember now whether, as this truck came up next to you, on your account, it was straddling the lane line.
A.   I remember the truck passing me and I remember riding the bike. That is it.
Q.   You told Dr Branson when you saw him in 2010 that you believed that the truck driver had not only not left you enough room, that is, between the side of the truck and the kerb, but the truck had actually moved in on you.
A.   Yeah, I can assume a lot of things, but at the end of the day –
Q.   That’s what you told Dr Branson, isn’t it.
A.   If I have said it and it is in the report, that’s what I said.
Q.   That seems to be what you told Mr England, that the truck moved (in) on you by a metre.
A.   I can assume a lot of things.
HIS HONOUR
Q.   Stop evading the question. Did you say that to Mr England.
A.   Yes.
Q.   That’s the question.
A.    Yeah, I would have said it, but that’s all speculation in your head.
XXN
Q.   If that was your belief at some time, that is, can I suggest, a pretty serious thing for the truck driver to do, to actually move in on you, effectively squash you between the side of the truck and the gutter, do you agree.
A.   Yes, I do agree.
Q.   Did you hold that belief that that’s what he’d done.
A.   I can’t say.
Q.   Did you hold that belief early on, that is, within a few weeks or months of the accident happening.
A.   I can’t say.
(T 139-40)
The significance of this evidence is that it is no part of the plaintiff’s case now that the defendant’s truck moved towards him. As I will discuss presently, Mr England does not mention such a scenario. However, the plaintiff has obviously made that suggestion in the past because he realised that there are only two explanations for what happened – either he moved towards the truck, or the truck moved towards him. If neither the plaintiff nor the defendant deviated from a straight line, then there is no explanation for the accident. I will return to this issue later.
Mr England said that the plaintiff was suggesting that the collision was between the axles of the first and second trailers. He said:
Q.   The plaintiff told you that he thought he collided between the axles.
A.   That’s what I said yes, that’s between the axles of the front trailer and the second trailer. That’s my understanding.
Q.   Not between the axles of the last three wheels.
A.   No.
Q.   It could be that, couldn’t it.
A.   No, it’s not, it’s between the axles, between the front trailer and the second trailer.
Q.   Can I suggest that if in fact the collision had been far enough forward on the B-double trailer, the last big trailer that he came off and went in under all six wheels, that he would have sustained greater injuries than he would have sustained.
A.   I don’t know, I can’t comment, I’ve got no knowledge of exactly how those injuries, how it would affect the severity of those injuries.
HIS HONOUR
Q.   Are you saying that he was suggesting to you that he was hit by the front of the second trailer.
A.   Well, in front of the axle on the second trailer, yes.
(T 250-1)
The clear implication of these notes is that the defendant had seen the plaintiff, moved to his right to straddle the lane lines, which is the very manoeuvre Mr England said he should have made, and then moved back while he was less than half-way past, the plaintiff collided in front of the axle on the second trailer and, after falling, was run over by the rear tri-axle assembly. This was clearly not the scenario Mr England was asked to examine in the solicitors’ letter of instructions, nor was it the scenario described by him in his conclusion.
In re-examination, Mr England specifically stated that his report does not deal with this scenario (T 289). I am unable to accept, for all the reasons already set out, Mr England’s comment that addressing that scenario would not have changed much in his report at all (ibid). As I have already observed, Mr England’s ultimate conclusion was that the defendant failed to move over to avoid the plaintiff, not that he had already moved out and should not have moved back in. The following exchange occurred during Mr England’s cross-examination:
HIS HONOUR
Q.Can I follow through on that. There’s only two ways it seems to me that this collision could have occurred, either the bike moved out or the truck moved in.
A.Exactly.
Q.Is that correct.
A.Yeah.
Q.Because if the truck was following a straight line then one would have thought that the collision would be at the front of the truck or at least at the front of the first trailer.
A.Yes, I agree with that, your Honour.
Q.So either the truck has moved in or the bike has moved out, one of the two.
A.That seems commonsense to me.
REXN
Q.In terms of the movement of in or out, are you able to say the extent of the movement that would be necessary for part of the truck to go past the right-hand side of the bicycle and then for the impact to occur.
A.It’s obviously not very far. I mean the lane line, I think, was 3.6 to 3.8 or - sorry, the left lane width, the truck is going to be about 2.5 m in width, only 1.1 to 1.3 if it was straddling the lane, that may have been several metres there so I mean it’s quite possible for a vehicle so long for the front to go past and then for the rest to follow around behind it as it’s moved across to the left.
(T 289)
Accepting that evidence, it is for the plaintiff to prove on the balance of probabilities that it was the truck moving in that caused the accident. This is therefore a pivotal issue in the case. It is therefore surprising that Mr England did not mention in his report that he received this information from the plaintiff.
·‘driver didn’t see me’
This comment by the plaintiff could not have come from his observations, nor from anything said by the defendant at the scene. He gave no evidence that he had heard the defendant say anything. I assume that the plaintiff has simply drawn this conclusion, perhaps on the basis of something he was told later. If he is correct, then there was no reason for the defendant to have been straddling the lane lines before moving over, an allegation the plaintiff made to Mr England on the same day;
·‘truck turned onto Ashwin’
This statement to Mr England was not referred to in any questioning of the plaintiff. Plainly, his statement to Mr England about this matter is incorrect. There are photographs taken by B/Sgt Liebich showing that the defendant parked the truck north of the accident scene, in the middle of the left lane, before the intersection with Ashwin Parade.
- The Defendant’s Scenarios
Mr Possingham outlined several scenarios to Mr England which had been developed with the assistance of Mr Griffiths, the defendant’s expert. These scenarios were based on an initial calculation of the ‘closing speed’ between the defendant’s truck and the plaintiff’s bicycle. Fifteen kilometres per hour was used as the speed of the plaintiff’s bicycle. The plaintiff told Mr England that his speedo showed 16 kilometres per hour, but that is not a substantial difference.

Scenario 1 was as follows (Exhibit D14):
Calculation of “closing speed”
Speed of truck at 55kph and bicycle at 15 kph at moment of impact = 40kph.
40kph = 11.1 m/sec.
Fall time at 0.4 secs = 4.44 metres – say 4.5 mtres.
Assume plaintiffs lower legs went under rear-most tyres (“last axle”). Blood and tissue observed on rear guard (as per photos, P1). Assume mid-point between second to rear-most tyres and rear-most tyres is 2 metres from rear of truck.
Therefore POI is 6.5 metres from end of truck – 18.5 metres from front of truck.
Scenario One: Bike enters at 15 km/hr not stopping
Assuming plaintiff rides east down southern driveway and enters South Rd one metre from northern kerb.
Distance travelled to rest position is 1 metre + 5.4 metres for “median strip” + 3.9 metre for northern driveway + up to 1 metre to rest position. Therefore a distance of up to 11.3 metres.
Assume “throw” distance of 2 metres.
Therefore travel distance of 9.3 metres till first contact with truck.
Assume plaintiff did not stop and travelled at 15 kph. (4.17 m/s).
Dividing 9.3 by 4.17 = 2.23 seconds
Therefore on South Road for 2.23 secs.
Assume truck travelling at 55kph: =15.3 m/sec.
Over 2.23 secs the truck travels 34.1 metres.
Assume POI with truck is 6.5 metres from rear of truck (allowing for “closing speed”).
Therefore 18.5 metres from front of truck, is location of first rider/bike contact with truck.
Subtracting first contact distance from front of truck from distance travelled by truck 34.1 – 18.5 = 15.6 metres
Therefore plaintiff enters South Rd 15.6 metres in front of truck.
So front of truck is 15.6 metres away approaching at 55 km/hr (15.27 m/sec),
Which takes truck 1.02 seconds to reach bike entry point.
Mr England accepted that if the assumptions in Scenario 1 are correct, then the calculations are correct (T 257). Mr England disputed that there is any evidence that the plaintiff entered South Road from a position one metre from the northern kerb of the southern (entrance) driveway (T 258). It is difficult to imagine him being closer to the kerb than that if he entered at speed. The further south he might have been, the closer he was to the truck when he entered. For example, if he was two metres further south, or three metres from the northern kerb, he would have been 13.6 metres from the front of the truck, which would give the defendant even less chance to see him and take evasive action.
Mr England argued that Scenario 1 is invalid because the plaintiff’s evidence is that he did stop before entering South Road, and so his evidence does not support the assumptions made in the scenario. Clearly, that is so. But the scenario would only be invalid if the plaintiff’s evidence was accepted, and the assumptions were thereby proved to be incorrect. For reasons I will elaborate upon later, that has not occurred in this case.
Mr Warren submitted that it is implausible that the plaintiff would enter South Road without stopping, and without seeing the truck. He suggested that some cause, such as wearing headphones, would be required to negate this implausibility.
I do not accept this submission. It is a common experience to see cyclists do things in traffic that seem foolhardy and dangerous. It is also common to see drivers of vehicles, even professional drivers of large vehicles, perform dangerous manoeuvres in traffic. It is unhelpful, really, to speculate about the relative implausibility of the actions of road users when experience tells us that such behaviour on the roads is not unexpected.
Mr Warren also submitted that the relative lack of damage to the bicycle, the fact that it had a scuff mark at the extremity of the right handgrip, and the handlebars were rotated counter-clockwise, renders it unlikely that he rode into the side of the truck.
If the allegation by the defendant was that the plaintiff had ridden at a right angle, or even something less than a right angle, so that the wheel of the bicycle might have been struck, for example, by the tyre of the truck, then I would be inclined to accept that submission. The defence contends, however, that the plaintiff may have entered South Road at an oblique angle as the truck was passing, thereby causing the handlebar to contact the side of the truck. The plaintiff may well have been aware of the presence of the truck, but misjudged the distance between the truck and his bicycle when he entered the road. In those circumstances, I do not accept that the relative lack of damage to the bicycle assists the plaintiff’s case.
Mr Warren pointed to Mr Griffiths’ evidence that it is possible that the trailer of the defendant’s vehicle could have deviated slightly from parallel, a matter of a few centimetres, causing a nudging contact with the plaintiff’s bicycle handlebars. I agree. However, the question is whether the plaintiff has proved, on the balance of probabilities, that this, rather than a movement of the bicycle, caused the impact, and whether any such scenario resulted from the defendant’s negligence in failing to keep a proper lookout. The question whether the truck or the bicycle moved the few centimetres necessary to cause impact is therefore not to the point. The issue is whether the circumstances in which that may have occurred have been proved to have been brought about by the defendant’s negligence.
Scenario 2 was as follows (Exhibit D15):
Scenario Two: Bike stops at side of road
Assuming plaintiff rides east down southern driveway and enters South Rd one metre from northern kerb.
Distance travelled to rest position is 1 metre + 5.4 metres for “median strip” + 3.9 metre for northern driveway + up to 1 metre to rest position. Therefore a distance of up to 11.3 metres.
Assume “throw” distance of 2 metres.
Therefore travel distance of 9.3 metres.
Assume plaintiff stopped at kerb of South Rd. Then rode north at average speed of 7.5 k/h: = 2.08 m/s.
Therefore on South Rd for 4.47 secs.
Assume truck travelling at 55kph: =15.3 m/sec.
Over 4.47 secs the truck travels 68.4 metres.
Assume POI with truck is 6.5 metres from rear of truck (allowing for “closing speed”). Therefore 18.5 metres from front of truck.
Subtracting 18.5 from 68.4 = 49.9 metres
Therefore plaintiff enters South Rd 49.9 metres before front of truck.
Truck travels this distance of 49.9 metres at 55 km/hr (15.27 m/s).
Dividing 49.9 by 15.27 = 3.27 seconds.
Mr England disputed the assumption that the plaintiff’s average speed was more likely to have been 7.5 kilometres per hour (on the basis that he accelerated at a fairly constant rate from 0 to 15 (or 16) kilometres per hour over the distance travelled). Mr England said:
No, I don’t believe that it is reliable. As quickly as a bicycle can accelerate, they also can stop quite quickly from those slow speeds. You are trying to come up with something without information you don’t know. All we know is that the point of impact had to be close to where the rider came to rest and that is basically it. You don’t know anything else. It is all supposition.
(T 261-2)
Mr England’s objection is reasonable. It is true that Scenario 2 is based on supposition. The plaintiff refused to say in evidence whether he accelerated quickly or slowly, what speed he accelerated to, and denied in evidence that he slowed down at any point, as Mr England assumed.
What Scenario 2 does demonstrate is that it is incumbent on the plaintiff to prove on the balance of probabilities that he was on the road where he should have been visible to the defendant for sufficient time for the defendant to react and take appropriate evasive action.
If, as Mr England insists, this is all supposition, and that Scenario 2 has not been excluded by the plaintiff on the balance of probabilities, then the plaintiff’s claim must fail.
In his address, Mr Warren observed that if the plaintiff entered South Road 70 metres in front of the truck, then the defendant would have sufficient time (5.4 seconds) to take evasive action. However, Mr Warren very fairly conceded that if the distance is any less than 50 metres, establishing ‘causative breach’ becomes ‘very difficult indeed because there is then an obligation to assess how far to the right could you steer within the period of perception and response’ (to the presence of the plaintiff on the road in front) (T 496).
Mr Warren submitted that I should accept that the plaintiff entered South Road when the defendant was much further away, 132.7 metres to the West End sign. But such a submission is inconsistent with the plaintiff’s evidence that he was not ‘almost stationary’ at impact. This is Scenario 3.
Mr England accepted that if either Scenario 1 or 2 represented the true circumstances of the accident, the defendant would not have had time to react to the presence of the bicycle (T 264).
The issue in relation to the plaintiff’s speed on the bicycle is starkly illustrated by Scenario 3 (Exhibit D15):
Scenario Three: Truck 130 metres away when bike enters road
Assume truck is 130 metres from stationary position.
Assume truck travelling at 55kph = 15.3 m/s.
Truck will take 8.5 secs to travel 130 metres.
Assume plaintiff travelling at average speed of 12kph allowing for initial acceleration to speed of 15kph.
12kph= 3.33 m/sec.
Plaintiff’s bicycle would travel 8.5 x 3.33 = 28.3 metres. More than 17 metres past rest position of approx. 11 metres beyond entry point.
Mr England’s reaction to that was as follows:
A.   That is ridiculous, scenario three, because we know that it wasn’t well ahead of the thing, so he obviously wasn’t riding at that speed. So, you have to discount it. We know approximately where the point of impact was. That scenario suggests that he is 28 m ahead, or something, or whatever. I mean, it is not true.
Q.   Let me just tease it out to you. I am putting to you this scenario, and again it is a matter of an assumption, but I am suggesting or I am creating a scenario where the plaintiff doesn’t slow his bike but in fact continues to travel at 15 km/h. You understand that that’s what is built into this scenario.
A.   Yes, that the accident didn’t happen.
Q.   I am just asking you to assume for the purposes of this calculation that the plaintiff doesn’t slow his bicycle but that, after accelerating his bicycle, he continues to travel at 15 km/h.
A.   Yes.
Q.   And, first of all, what is built into this scenario is an average speed of 12 km/h allowing for a period of initial acceleration to the speed of 15 km/h. Are you prepared to accept that as within the range of possibilities.
A.   It is a guess, isn’t it, but the whole scenario cannot have happened because we know an accident did happen, and under that scenario it could not have happened because the bike wouldn’t have been where it was when it was hit?
Q.   But doesn’t it illustrate the complete implausibility of an account from the plaintiff, if it be his account, that he sees a truck 130 m away, that he commences pedalling north, and that he reaches a speed of 15 km/h and he continues at that speed.
A.   He could have accelerated to 16 within 2 m and then slowed down to be almost stationary at 12.5 m from where he took off. That is completely plausible.
Q.   But it relies upon a finding of this court that in fact, after reaching some speed, he then slowed right down to almost stationary, doesn’t it.
A.   Exactly, but you are not saying that this is the scenario that happened because it didn’t. It is entirely for his Honour to work out what happened and good luck.
(T 262-3) (My underlining)
Scenario 3 most closely fits the plaintiff’s evidence as to how this accident occurred. Mr England’s evidence vividly illustrates that the accident could not have occurred that way. If it had occurred in the way the plaintiff described, his rest position would have been much further north, not the position in the photographs Exhibit P1, described by B/Sgt Liebich and Det. Horder, more like the position the plaintiff described to Mr England. The only way that this scenario could apply is if the plaintiff had almost stopped on impact (T 284). Mr England acknowledged that if the evidence shows otherwise, his reasoning has no basis, or in counsel’s words, it ‘falls away’ (T 285).
In fact, the evidence does show otherwise. The plaintiff specifically denied that he was ‘almost stationary’ on impact (T 134). This denial robs Mr England’s opinion of any basis in the evidence.
The only scenario which is reconcilable with the established facts, in particular the plaintiff’s rest position, is Scenario 2, and that only gives the defendant 3.27 seconds to react to the plaintiff’s presence on the road. Allowing for reaction times, Mr England acknowledged that the defendant would have had only 1.5 seconds or so to react (assuming he saw the plaintiff immediately). He said:
Q.   Can I suggest that in the remaining time on this scenario of less than 1.5 seconds the driver wouldn’t able to take much braking or steering [sic].
A.   No, he would be sitting there. If, at the starting time, the perception response started for the latter part of that, he would be sitting there waiting for the impact.
Q.   And also on this scenario, either of scenario one or two, the cyclist is going to be down to the left-hand side of the truck driver.
A.   He probably wouldn’t see him because we are talking about the collision occurring at the left rear of the trailer. He may possibly see him in the rear-view mirror but I think he would probably be hanging onto the steering wheel if he is braking.
(T 265) (My underlining)
So, at 1.5 seconds before impact, the plaintiff would already have passed behind the front of the trailer during the period in which it was possible for the defendant to react.
As to whether the red tail-lights at the rear of the plaintiff’s bicycle and on his backpack should have alerted the defendant to the plaintiff’s approach, Mr England said:
Q. If in fact the cyclist came onto the road on either of scenario 1 or scenario 2 which I just put to you which is a matter of one to three seconds or so before the truck comes to that pint [sic], or in front of the truck, that would give very little opportunity for the truck driver to see the lights on the back of the cycle, wouldn’t it.
A. Yes.
(T 270) (My underlining)
In any event, Mr Warren in his address conceded that Mr England’s testing showed that the tail-light on the bicycle was visible to a maximum distance of 50 metres, which does not help the plaintiff’s case for the reasons already outlined.
Accident Reconstruction – Defendant
The defendant engaged the services of Mr Michael Griffiths, a mechanical engineer who also has a Masters degree in Biomedical Engineering from the University of New South Wales. Mr Griffiths has published widely on the topic of accident reconstruction, and has been involved with many programs, projects, reviews and studies in the area of road safety. He has held a variety of government and university appointments involving research into road safety issues. Since 1998 he has been a consultant in the areas of road safety and crash and injury prevention. Mr Griffiths’ reports dated 8 February 2012 and 26 November 2014 are part of Exhibit D25.
Mr Griffiths’ initial analysis was affected by a number of errors:
·he assumed the defendant’s speed was 50 kilometres per hour, whereas the only evidence, from the defendant, is that he was travelling at 55 kilometres per hour;
·he assumed the bicycle’s speed was 20 to 30 kilometres per hour, whereas the only evidence of that is that the plaintiff told Mr England that it was less than that;
·the scuff mark on the wheel at the front of the tri-axle of the rear trailer was estimated to be about three metres from the rear of the truck, whereas the distance should have been four metres (21 metres from the front).
When these errors were discovered, Mr Griffiths revised his calculations accordingly.
Mr Griffiths concluded, having regard to the scuff mark and the fact that blood and tissue were noted only on the mudflap behind the rear tyre of the tri-axle, and on the tail-light housing behind that, that the plaintiff came into contact with the sidewall of the front tyre of the tri-axle, and his leg or legs then went under the rear tyre and sustained the severe injuries referred to.
Mr Griffiths explained:
… I think the scuff mark on the side of the tyre is probably – it was probably that contact which stopped his upper torso from getting under the tyres and then, with the flailing of his limbs, his lower legs had gone into that gap.
(T 377)
This opinion was hotly disputed by Mr England, who argued that because there was such a small gap between the wheels in the tri-axle and the truck was moving so fast, the plaintiff’s legs must have been run over by all three wheels, or six wheels since they were doubled. He said there would not have been enough time for the plaintiff’s legs to enter such a small space which would have been available over such a small time-frame (T 236). I do not consider that the outcome of the litigation depends upon a resolution of this dispute. The time the truck would have taken to travel that distance between the front of the tri-axle and the gap between the second and third axles is so small that it makes little difference in my view.
Mr Griffiths also assumed that the plaintiff exited from the car-park from the northern, or exit, driveway. He did so because Det. Horder, who accompanied him to the scene, was ‘very convinced’ that was so (T 378). We now know that Det. Horder based his belief on an incorrect understanding of B/Sgt Liebich’s opinion.
If the plaintiff did come out of the northern driveway, Mr Griffiths was of the opinion that his final rest position could be explained:
… given those constraints, the rest position and accepting what I believe to be the police interpretation of events, it appeared to me that the explanations as to how that would occur would be that at the last second the rider saw the truck, attempted a violent swerve to the left, the bike has not made the turn, it started to high-side, and then whilst on the way to the ground the rider and the bike have had some contact with the truck and that rider’s contact being with the sidewall of the tyre of the first set of tyres. So that then means that the first area of contact between the bike and the rider was 4 m in from the rear of the truck on that adjacent side of that tyre and actually in the falling process as a result of an attempted violent swerve.
(T 378-9)
Mr Griffiths did not dispute Mr England’s estimate that the plaintiff would have been ‘thrown’ up to two metres in a northern direction by the northern movement of the truck. He put the range at between one and three metres (T 379).
As to the three scenarios he developed, in Scenario 1 the plaintiff came out of the southern, entrance, driveway without stopping. If that happened, he would have entered the road 15.6 metres in front of the defendant’s truck. At 55 kilometres per hour, the truck would have taken 1.02 seconds to reach that entry point (T 383). Having regard to an average reaction time of 1.9 seconds, or an 85^th percentile reaction time of 2.6 seconds, the defendant would have had no chance of taking evasive action (T 384).
Mr Griffiths calculated that the plaintiff would have entered South Road 49.9 metres in front of the truck (T 386). Travelling at 55 kilometres per hour, the truck would have taken 3.27 seconds to cover that distance. Subtracting 1.9 seconds as the average reaction time, the defendant, on Mr Griffith’s evidence, would have had about 1.37 seconds after reacting to initiate evasive action. On the 85^th percentile reaction time, the time reduces to .67 seconds. Again, Mr Griffiths expressed the view that this would not have been sufficient to avoid the collision (T 387).
In Scenario 2, the plaintiff came out of the southern, entrance, driveway after stopping, and then directly moved into South Road and accelerated evenly to a maximum of 15 kilometres per hour over the entire riding distance. This would have achieved an average speed of 7.5 kilometres per hour. Mr England disputed that this was a valid assumption. He argued that the plaintiff could have achieved 15 kilometres per hour after only two metres, so the average would be higher. If that is so, then the defendant would have had even less than 3.27 seconds to react to the plaintiff’s presence (T 388).

Finally, Scenario 3 was based on the plaintiff’s evidence that he stopped before entering South Road, and entered South Road while the defendant’s truck was still back near the beer sign, which distance Mr Griffiths estimated at 130 metres, and Mr England measured at 132.7 metres. Mr Griffiths assumed that the plaintiff achieved an average speed of 12 kilometres per hour (it is impossible to know if this is accurate – the plaintiff simply said a ‘normal’ speed – T 131). In the time it took the truck to cover 130 metres (8.5 seconds), the plaintiff’s bicycle would have covered 28.3 metres, which would have taken him more than 17 metres past the rest position noted by the police at the accident scene (T 387). The slower the plaintiff’s speed, the shorter that distance becomes. As stated earlier when discussing Mr England’s reaction to Scenario 3, the only way the plaintiff’s evidence can be correct is if he was ‘almost stationary’ on impact, a fact which he denies.
The following further points arose in cross-examination:
·at 55 kilometres per hour there is the ‘potential’ for a few centimetres of sideways movement in a B-double trailer (T 394);
·while the cyclist was side-on to the truck driver, his clothing would not have had ‘great conspicuity’ because he was wearing dark clothing, and his lights could not be seen. As he turned onto South Road, they would progressively become more visible (T 408);
·there was a time gap of about one-fifth of a second during which the plaintiff’s legs could have entered the gap between the middle and rear wheels of the tri-axle and then been run over by the rear wheel. Mr Griffiths discounted that the plaintiff was run over by the first or second wheels because of the absence of blood or other tissue on either of those wheels or their mudflaps (T 415);
·the mark on the side of the rear trailer below the ‘Air Ride’ sign depicted in Exhibit P1, photograph 13, was probably not associated with this incident (T 418);
·Mr Griffiths was asked:
Q. The objective evidence, physical evidence, doesn’t enable you to determine whether or not the truck diver [sic] ought to have been able to see the cyclist entering the road, does it.
A. No, that is an indeterminate instance.
(T 424)
(I think it likely that Mr Griffiths said ‘distance’ rather than ‘instance’, but his meaning is clear – the answer was ‘No’.)
Conclusions
The plaintiff was an extremely poor witness. He persistently refused to address himself to counsel’s questions. He was argumentative and discursive. He frequently contradicted himself. He sometimes refused to discuss issues if he thought they might not assist his case. I am sure that much of his evidence is reconstruction, even though he repeatedly asserted that he had an actual memory of events. I do not say that the plaintiff was a dishonest witness. He has suffered grievous injuries, and obviously harbours a sense of injustice as a result. He has convinced himself of the truth of his reconstruction of these events, but I cannot be satisfied on the balance of probabilities that his reconstruction is accurate. I can have no confidence as to the truth or accuracy of any of his answers.
Except where the plaintiff’s evidence is supported by objective evidence, such as the evidence of Mr Lathouros about his tail-light having been operating, I indicate that I do not accept it on the balance of probabilities.
In the Statement of Claim, the particulars of negligence pleaded are that the defendant:
5.1failed to keep any or any adequate lookout for other road users and, in particular, the First Plaintiff.
5.2failed to stop, slow or swerve his vehicle so as to avoid colliding with the First Plaintiff.
5.3drove at a speed that was excessive in the circumstances.
5.4drove his vehicle too close to the First Plaintiff.
5.5failed to drive his vehicle into the adjacent carriageway while overtaking the First Plaintiff.
5.6caused, permitted or allowed the trailer affixed to the Defendant’s vehicle to strike the First Plaintiff’s bicycle and then the First Plaintiff.
5.7drove without care and consideration for other road users.
Of the three scenarios put to Mr England by Mr Possingham, the only one which is consistent with the plaintiff’s evidence is Scenario 3, but Mr England conceded that the only way that scenario could apply was if the plaintiff was almost stationary at impact, which the plaintiff denies.
It is not for the defendant to prove that any of the scenarios he has put forward actually occurred. It is for the plaintiff to prove, on the balance of probabilities, a factual scenario upon which a finding of negligence could be based. All the defendant’s scenarios show is that there are at least two of many scenarios which are open on the evidence and which do not demonstrate negligence and which are at least equally probable. To that extent, it is not necessary to examine the duty of road users to drive defensively. The duty was outlined in the well-known passage of the judgment of Wells J in Stoeckel v Harpas[7] and the duty to drive protectively was outlined by von Doussa J in Walton v Rowbottom (unreported – cited by Gray J in Kambouridis v Heyn & TransAdelaide)[8], Murray’s Transport v CGU Insurance[9] and Fleet SA – South Australian Government Financing Authority v Thomas Luke Transport.[10]
[7] (1971) 1 SASR 172 (note)
[8] [2000] SASC 361
[9] (2013) 118 SASR 11
[10] [2014] SASC 194
In the last of those cases, his Honour said (at [17]):
Drivers of heavy transports, including semi-trailers, are in control of vehicles that can cause extreme damage in the event of a collision. Drivers of these vehicles, particularly when fully laden, should be aware of the difficulty of stopping in a short distance or engaging in rapid changes of direction. The need for defensive driving of such vehicles is paramount. The maintaining of a vigilant lookout is critical.
Even having regard to the heavy duty which the law places upon the drivers of large vehicles to keep a vigilant lookout, there is no reliable evidence that the plaintiff was in the view of the defendant at all, let alone within sufficient time to take evasive action, prior to the impact. There is therefore no evidence upon which a finding could be based that the defendant was in breach of the heavy duty outlined by Gray J.
I am unable to find on the balance of probabilities that any of the allegations in the Statement of Claim have been proved. In particular, the plaintiff’s evidence was so unreliable and self-contradictory that it cannot be used as a basis for the opinions of Mr England that the defendant was negligent.
For those reasons, the plaintiff’s claim must be dismissed. For the same reasons, the second plaintiff’s claim must also be dismissed.
I will hear the parties as to any consequential orders.