Armin Damirdjian v Nominal Defendant and Zaya

[2021] NSWDC 703

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Armin Damirdjian v Nominal Defendant & Zaya [2021] NSWDC 703

Hearing dates:

28, 29, 30 August; 8, 29 September; 27 October 2017; 2 February; 20 April; 25 May; 20 July; 30 August; 6 December 2018; 15, 16 July; 25 October; 5 December 2019; 8 May; 3, 17 July; 14 September; 2, 9 October; 2020; 15 – 17, 19, 22, 31 March 2021

Date of orders:

21 December 2021

Decision date:

21 December 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the first defendant against the plaintiff;

2. Verdict and judgment for the plaintiff against the second defendant in the amount of $375,000;

3. The application for interest on damages is refused at this stage;

4. I will hear the parties on the appropriate order for costs;

5. The exhibits may be returned;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – motor vehicle accident – claim against the Nominal Defendant – unidentified motor vehicle – whether due inquiry and search established – whether ownership of the vehicle established – whether the driver of the motor vehicle was negligent in the circumstances in which the plaintiff was injured – whether the plaintiff was contributorily negligent; DAMAGES – assessment of the plaintiff’s claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5D, s 5E

Civil Procedure Act 2005 (NSW), s 26, s 34

Motor Accidents Compensation Act 1999 (NSW), s 131, s 138(1)

Uniform Civil Procedure Rules 2005 (NSW), r 6.24

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Angel v Hawkesbury Council [2008] NSWCA 130

Blacktown City Council v Hocking [2008] NSWCA 144

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Glen v Sullivan [2015] NSWCA 191

Goode v Angland [2017] NSWCA 311

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Larson v Commissioner of Police [2004] NSWCA 126

Majkic v Bonnano [2008] NSWCA 253

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79

Marien v Gardiner [2013] NSWCA 396

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60

Paff v Speed (1961) 105 CLR 549

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58

Penrith City Council v Parks [2004] NSWCA 201

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536

Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326

Warren v Gittoes [2009] NSWCA 24

Watson v Foxman & Ors (2000) 49 NSWLR 315

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

Texts Cited:

Furzer Crestani, Assessment Handbook, 2021

Category:

Principal judgment

Parties:

Armin Damirdjian (Plaintiff)
The Nominal Defendant (First defendant)
Sam Zaya (Second defendant from 14 September 2020)

Representation:

Counsel:
Mr P Menzies QC with Ms B Nolan – 28 August 2017 to 16 July 2019; Mr A Parker – from 5 December 2019 (Plaintiff)
Mr J Turnbull SC (First defendant)
Mr W Fitzsimmons SC with Mr B Jones (Second defendant from 15 March 2021)

Solicitors:
Gajic Lawyers (Plaintiff)
Moray & Agnew (First defendant)
Sparke Helmore (Second defendant from 14 September 2020)

File Number(s):

2014/4566

Publication restriction:

None

Judgment

Table of Contents

Factual background	[1] – [2]
Procedural background	[3] – [11]
Interlocutory listings following adjournment	[12] – [20]
Alternative positions litigated by plaintiff	[21]
Final version of the pleadings	[22] – [24]
Issues for determination	[25]
Evidence review	[26] – [27]
Evidence summary – liability issues	[28] – [135]
The plaintiff	[29] – [45]
Mrs Douglas	[46] – [53]
Mr Ida	[54] – [62]
Mr Sawa	[63] – [65]
Mr Zaya, the second defendant	[67] – [81]
Senior Constable Doubleday	[82] – [103]
Expert evidence attempting accident reconstruction	[104] – [135]
Issue 1 – Identity of the vehicle	[136] – [150]
Issue 2 – Utility of expert accident reconstruction evidence	[151] – [163]
Issue 3 – Factual circumstances of the accident	[164] – [180]
Plaintiff’s speed and manner of approach	[172] – [174]
Cause of plaintiff’s fall from his motorcycle	[175] – [176]
Road gouging by motorcycle	[177] – [178]
Ownership of white van	[179]
Conclusion	[180]
Issue 4 – Duty of care / risk of harm	[181]
Issue 5 – Alleged negligence	[182] – [187]
Issue 6 – Alleged contributory negligence	[188] – [192]
Issue 7 – Assessment of damages	[193] – [307]
Evidence review - damages	[193] – [210]
• Plaintiff’s evidence on damages	[195] – [202]
• Evidence of Mr Sahade	[203] – [205]
• Evidence of Mr Carbone	[206] – [207]
• Evidence of Mr Cicciarello	[208] – [209]
• Evidence of Mr Khachigian	[210]
Medical evidence	[211]
Findings on medical opinions in contention	[213] – [233]
Findings on damages issues	[234] – [270]
(1) Plaintiff’s background circumstances	[235] – [244]
(2) Injuries and treatment	[245] – [256]
(3) Disabilities that remain	[257] – [263]
(4) Work effects	[264]
(5) Most likely circumstances but for injury	[265] – [270]
Assessment of claimed heads of damage	[271] – [210]
Past domestic assistance	[275]
Past economic loss	[276] – [287]
Future economic loss	[288] – [296]
Future treatment expenses	[297] – [300]
Past out-of-pocket expenses	[301] – [305]
Summary of damages assessment	[306]
Interest claim	[307]
Disposition	[308]
Orders	[309]

Factual background

1. At about 2.40pm on Saturday 5 November 2011, the plaintiff, Mr Armin Damirdjian, was riding his motorcycle along Nile Street Fairfield West towards his home when suddenly, and without warning to him, a parked white van pulled out in front of him on his left in the course of making a U-turn. He reacted by braking heavily, resulting in wheel lock and then loss of control of his motorcycle, following which fell to the road, and sustained bodily injuries.

2. Those events have left him with lasting adverse physical and psychological consequences that require assessment. The identity of the owner and driver of the van was unknown to the plaintiff. He claims the driver of that van was negligent. Therefore, pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW) (the “MAC Act”), he initially claimed damages for personal inquiries from the Nominal Defendant. During the course of the proceedings a second defendant, Mr Sam Zaya, was joined. The plaintiff has pursued an alternate case against that defendant, claiming he was the owner of the van in question.

Procedural background

3. On 7 January 2014, the plaintiff’s solicitors commenced the present proceedings against the Nominal Defendant pursuant to s 34 of the MAC Act claiming that, despite some earlier inquiries, the identity of the owner and driver of the vehicle remained unknown.

4. It is agreed between the parties that the liability result in these proceedings will determine the result of related proceedings in this Court numbered 2014/269323 brought by the plaintiff’s daughter, Christina Damirdjian, against the some defendants. She claims damages for psychological injury and mental harm consequent upon learning of the plaintiff’s injuries.

5. Between 5 March 2014 and 30 March 2017, the proceedings were the subject of numerous pre-hearing case management listings supervised by the Judicial Registrar. During that time, on the plaintiff’s application, the matter largely remained in the Court’s Inactive List. During that time several procedural motions and directions hearings took place before the List Judge concerning matters touching upon appropriate preparation of the case for hearing.

6. On 30 March 2017, the proceedings were fixed for the hearing to commence on 28 August 2017 with an allocated estimate of 4 days. On 23 August 2017, 5 days before the commencement of the hearing, the parties appeared before List Judge to inform the Court of the revised estimate of 7 to 8 days for the case, instead of the earlier estimate of 4 days.

7. At the hearing, which commenced before me on 28 August 2017, the plaintiff was represented by Mr Menzies QC with Ms B Nolan. The Nominal Defendant was represented by Mr J Turnbull SC. On the third day of the hearing, on 30 August 2017, during the course of evidence, information emerged suggesting the possible identity of the vehicle and its driver.

8. This resulted in an adjournment of the proceedings on the plaintiff’s application, so that consideration could be given to joining an additional and alternative defendant, Mr Sam Zaya, who had by then already given evidence in the plaintiff’s case. Following that evidence, the plaintiff’s legal advisors believed that a proper basis may have existed for Mr Zaya to be sued, alleging he was the owner of the vehicle in question.

9. What then followed was a lengthy period of delay whilst the plaintiff's representatives took time to decide what they would do in order to advance the proceedings to a conclusion. In the course of final submissions, counsel were invited to identify the narrative to be included in these reasons to explain the consequential delay.

10. That delay was then explained by Senior Counsel for the plaintiff as follows:

“MENZIES: The narrative, your Honour. There are two reasons for it. One, the concern that we had for the plaintiffs, about risk of costs, and therefore the need to try and identify properly what the issues were, so that we’d consider ourself (sic) safe, as it were, to join someone else. The second aspect of it was, of course, the delay which inevitably follows, having made that decision to join the second defendant.”

[T473.34 – T473.39]

11. The minutiae of some of the events surrounding that delay are set out in paragraphs 116 to 144 of the affidavit of Christina Damirdjian affirmed on 6 May 2020. Those matters do not require consideration at this point.

Interlocutory listings following adjournment

12. In the period that the proceedings remained adjourned part-heard, there were numerous supervisory directions hearings aimed at relisting the matter. Between 8 September 2017 and 9 October 2020 there were 18 such directions hearings. On those occasions, the Court sought indications as to when the plaintiff would be ready to take a resumed hearing date.

13. In that time, on 8 May 2019, on the application of the plaintiff, an order was made pursuant to UCPR r 6.24 for the joinder Mr Zaya to the proceedings as the second defendant.

14. On 17 July 2020, pursuant to s 26 of the Civil Procedure Act 2005 (NSW) (“CP Act”), an order was made requiring the parties to participate in a mediation. This proved unsuccessful in resolving the proceedings. No adverse inferences arise from such non-resolution.

15. During 2020, on account of prevailing COVID-19 issues, the Court was unable to allocate a resumed hearing date in the short term to accommodate the revised hearing estimate.

16. During that period of delay, Mr Zaya’s legal representatives unsuccessfully pursued a motion seeking judicial recusal. That motion was dismissed on 19 September 2020 for reasons given ex tempore at that time.

17. On 19 October 2020, the part-heard proceedings were fixed for a resumed hearing to commence on 15 March 2021, with a revised estimate of a further 7 hearing days.

18. At that resumed hearing, Mr P Menzies QC continued his appearance for the plaintiff, but with Mr A Parker in lieu of Ms Nolan. Mr J Turnbull SC continued to appear for the Nominal Defendant. Mr W Fitzsimmons SC with Mr B Jones appeared for Mr Zaya, the recently joined second defendant.

19. The resumed hearing proceeded on 15, 16, 17, 19 and 22 March 2021 and the evidence was then completed, subject to a timetable for submissions.

20. Owing to the availability of counsel, and having regard to the time needed to prepare outlines of submissions, the proceedings were then listed for argument on 31 March 2021, at which time judgment was reserved, with delivery of the judgment to take place after other cases with greater priority were determined.

Alternative positions litigated by plaintiff

21. Consequent upon the plaintiff’s success in achieving an amendment to the original pleadings by joining the second defendant, he chose to run two alternative cases where only one of those alternative cases could succeed. The cost consequences of that position, and the plaintiff’s previous indecisiveness that led to numerous interlocutory court attendances, are aptly described as enormous. The factual basis of the two alternative cases will be considered in detail in determining the issue of negligence as is now alternatively alleged against the respective defendants.

Final version of the pleadings

22. The plaintiff’s final further amended statement of claim, which added Mr Zaya as the second defendant, was dated 12 March 2020 and filed on 12 May 2020. The plaintiff’s re-pleaded case was as follows:

1. The identity of the unidentified motor vehicle :

(a) Was owned and/or operated by the second defendant and bore registration number “RCZ11A”; or

(b) Cannot, after due enquiry and search, be established.”

23. The second defendant filed his defence to the plaintiff’s amended statement of claim on 2 September 2020. That defence denied ownership of the white van as was referred to in the plaintiff’s amended statement of claim and it denied that the second defendant was the driver of that van alleged to have been involved in the plaintiff’s accident.

24. On 16 March 2021, by leave, the Nominal Defendant’s defence to the amended statement of claim was filed in Court. In that defence the Nominal Defendant maintained its denial that an unidentified motor vehicle was involved in the plaintiff’s accident. The Nominal Defendant continued to maintain that position to the end of the proceedings, and has argued that the owner of the vehicle has been satisfactorily identified as being the second defendant, Mr Zaya.

Issues for determination

25. A consideration of the pleadings, the evidence, and the submissions of the parties, indicates that the substantive issues which call for decision in this case may be conveniently identified as follows:

1. Whether, pursuant to s 34 of the MAC Act, the plaintiff has satisfactorily pursued due inquiry and search to seek to ascertain the identity of the owner and driver of the vehicle that he alleges was involved in the subject accident, or alternatively, has the identity of the owner or driver of the vehicle been identified. My reasons for determining that issue appear between paragraphs [136] to [150] below;

2. The determination of the utility of the expert accident reconstruction evidence to assist in the determination of factual questions concerning the manner in which the accident occurred. My reasons for determining that issue appear between paragraphs [151] to [163] below;

3. The identification of findings on the factual circumstances leading up to and immediately following the subject accident. My reasons for determining that issue appear between paragraphs [164] to [180] below;

4. The duty of care owed by the driver of the vehicle relative to the risk of harm. My reasons for determining that issue appear at paragraph [181];

5. Whether the plaintiff has established negligence in either of his alternative cases against the defendants. My reasons for determining that issue appear between paragraphs [182] to [187] below;

6. Whether there was contributory negligence on the part of the plaintiff. My reasons for determining that issue appear between paragraphs [188] to [191] below;

7. The assessment of the plaintiff’s claim for damages. My reasons for determining that issue appear between paragraphs [193] to [306] below.

Evidence Review

26. The plaintiff gave oral evidence on the liability and damages issues: T62 – T159; T273 – T284. In addition, oral evidence was given by the following witnesses:

Liability

1. Mrs Pauline Douglas, a resident in the neighbourhood where the accident occurred: T16 – T31;

2. Mr Joe Ida, another resident in the neighbourhood where the accident occurred: T32 – T59;

3. Mr Khalid Sawa another nearby resident in the neighbourhood where the accident occurred: T395 – T402;

4. Mr Sam Zaya, who also lived in the neighbourhood. He became the second defendant: T212 – T229; T445 – T456;

5. Senior Constable Mitchell Doubleday, the police officer who attended and investigated at the accident scene: T247 – T256; T310 – T327;

6. Mr Ricky Blom and Mr Christopher Hall, engineering experts who provided opinions on accident reconstruction issues: T338 – T394;

Damages

1. Mr Anthony Sahade, an economic loss witness: T160 – T168;

2. Mr Joe Carbone, an economic loss witness: T169 – T174;

3. Mr Pero Cicciarello, a friend of the plaintiff: T175;

4. Mr Darius Khachigian, the plaintiff’s brother: T181 – T196;

5. Ms Christina Damirdjian the plaintiff’s daughter: Affidavit affirmed on 20 May 2020; T292 – T306; T329 – T337; T403 – T403.

27. The documentary evidence was extensive. The plaintiff’s exhibits were in the series marked “A” to “L”. The Nominal Defendant’s exhibits were marked in the series D1(1) to (12). Mr Zaya’s single exhibit was marked D2(1).

Evidence summary – liability issues

28. A summary of the oral evidence on the liability issues, with references to relevant documentary exhibits, now follows in the factual sequence in which it arose. That evidence requires examination in some detail as it has considerable bearing on the analysis of the opinion evidence of the liability experts who attempted an accident reconstruction exercise. The reliability of those opinions stands to be assessed when the underlying assumptions are comparatively evaluated for similarity to the found facts: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

The plaintiff, Mr Armin Damirdjian

29. The plaintiff was born in Iraq in 1966. His family background is Armenian. He arrived in Australia with this family when aged 3 years. He is divorced from his wife. He has two children from the former marriage. His oldest child, Christina born in 1997, is also a plaintiff in the related proceedings.

30. The plaintiff left school with the School Certificate in 1982 after completing Year 10 studies. He has variously worked as a mechanic and a service technician in a number of positions with a variety of machinery, including commercial, industrial, and domestic machinery.

31. The plaintiff said that at the time of the accident he was riding his motorcycle on the way home in a westerly direction in Nile Street, Fairfield West. He said he had made a right turn into Nile Street from The Boulevarde. He described his speed at the time of the turn as more or less at a standstill or rolling, and then, at a point about 15 metres or so into Nile Street, he looked at his speedo and saw he was travelling at 50kph, which necessarily meant that he had accelerated to that speed from a near standstill.

32. The plaintiff said that at that time, he looked up and saw a lady ahead of him standing and then walking on the side of the road towards him near a white van that was parked on the side of the road to his left. He said he first saw her and the children with her from a distance of about 150m. He said he was riding at about 50kph and was being cautious because of the presence of children. He said he moved his line of travel more towards the centre of the roadway. He said that when he was about 30m away from that lady, he observed that by then, she and the children with her, were already on the grassed footpath. It appears in that time he had reduced his speed to about 40kph.

29. The plaintiff said that he then slightly accelerated from what was then a reduced speed of about 40kph. He thought he was in fourth gear at that time. The plaintiff then described the subsequent events as follows:

“Q. And then you - what was the next thing that you observed?

A. The guy in the van pulled out in front of me, threw a U turn right in front of me.

Q. The guy in the van pulled out in front of you and did a U turn. Now, where had he been facing before that occurred?

A. West down Nile Street. West.

Q. He did a U turn.

A. Yes, sir.

Q. Did he complete the U turn?

A. Don't remember nothing.

Q. Right. So he started to do a U turn.

A. Yes. All I know, when he done it, it was

Q. Well, started to do what you assumed

A. a bit more than halfway across.

Q. Hang on. He started to do what you assumed was going to be a U turn.

A. It was roughly about halfway across.

Q. Right. And what did you do?

A. Hit my brakes, and that's all I remember.

Q. And then what was the next thing you remembered after that?

A. I was in the ambulance and I'm sure the ambulance lady, lady or guy, said to me, "You had a bike accident." Pretty sure that's what she said to me.

Q. Do you recall before that having a conversation with anybody?

A. No.

Q. Now, when you were told you'd had a bike accident, did that jog your memory as to what had happened?

A. I was in and out of consciousness all the way through there to the hospital.

Q. Then you went to the hospital.

A. Correct.

Q. Do you remember going to the hospital?

A. I remember the police officer asking me a few questions and he said, "Good luck", and that was it.

Q. Good luck.

A. Yeah.

Q. As he sort of waved you goodbye, or something.

A. Good luck to me about skin grafts on your hands.”

[T73.3 – T74.1]

34. After the plaintiff had braked heavily, with consequential wheel lock and skidding, his motorcycle became unstable and he fell to the roadway and either slid or rolled on it for some distance. He received a concussive head injury and other injuries in the accident. This resulted in a period of impaired consciousness. There was no medical evidence tendered to suggest the plaintiff’s recollection as was recounted to the attending police officer, or in evidence in these proceedings, particularly as to his speed and his road position as he approached the white van, was unlikely or improbable as a result of his earlier amnesia. The plaintiff could not recall whether the vehicle in question had completed the U-turn that had been commenced as he approached.

35. The plaintiff said he only had a vague recollection of his conversation with the attending police officer whilst he was in hospital: T74.33. His recollection of the events seems to have subsequently crystallised whilst he was in hospital, about a week after the accident, as is apparent from the following extract of his evidence:

“Q. And you've - can you recall then, when you had, after that event, you're in hospital, when you had any recollection about any of the events?

A. About a week later, roughly, to a point; about a week later.

Q. What did you - what were the sort of things that you're remembering--

A. Coming down Nile Street, look at my speedo, seeing a lady there with two kids, and the last one I remember was the van pulling out in front of me, and that's it.

Q. Has that recollection improved since then, or is that still what you remember?

A. That's all I remember.”

[T75.1 – T75.12]

36. The plaintiff denied that he was speeding at the time of the accident, and he had pointed to the evidence of the absence of flat wear marks on his tyres when defending, albeit unsuccessfully, a negligent driving charge brought by Senior Constable Doubleday in Local Court proceedings. The point he was making was that absent such marks it was unlikely that he had skidded over any significant distance. He defended those proceedings because he considered the accident was not due to fault on his part: Exhibit “F”.

37. He described his intention to turn from Nile Street to travel about 200m to his destination, being his parents’ home, where he was living at the time: T79.1 – T79.12. He described the direction of travel of the white van at the time of the U-turn as travelling north.

38. In his oral evidence, the plaintiff identified his damaged motorcycle from a series of photographs: T75.24. Those photographs featured in discussions in the expert evidence which attempted to interpret and reconstruct the circumstances of the accident. It appears those photographs were taken about 5 months after the accident.

39. At the initial hearing on 28 August 2017, the cross-examination of the plaintiff on liability issues was conducted by Mr Turnbull SC on behalf of the Nominal Defendant. That cross-examination covered the following topics in which the plaintiff confirmed that:

1. He had limited recollection of the events: T144.46;

2. When he applied both the front and the rear brakes on his motorcycle, they locked up: T145.1 – T145.12;

3. He did not recall falling to the roadway: T145.15;

4. He was cross-examined on the transcript of the evidence he gave in Local Court proceedings in 2012: T148 – T150: Exhibit “F”;

5. He said that the liability account set out in his personal injury claim form, apparently completed on his behalf by his solicitor, was not correct, and he said he could not explain this. He said he had not read it carefully before signing it, saying it was a mistaken account: T146; T147.9. The account in that form was as follows:

“I was on my motorcycle riding down Nile Street, Fairfield Heights. I saw a lady on the footpath on the side of the road and I veered slightly to the rigth (sic) in case someone comes out of the road. A van parked on the left side of the road attempted to make a U turn and I had to skid sideways to avoid a collision. I skidded must have fallen off and hit something because I had lost consciousness.”

40. Specifically, in that cross-examination, the plaintiff gave the following evidence in respect of challenges to his evidence on factual aspects of the events leading to the subject accident:

1. He could not recall for how long his brakes had remained locked: T151.13;

2. He denied the proposition that the photographic evidence within Exhibit “C” showed that after the brakes on the motorcycle had locked, it skidded for a period of time: T152.50 – T153.22. That denial was supported by the absence of flat wear markings on his motorcycle tyres. That said, the plaintiff’s evidence in related Local Court proceedings was that there was some skidding;

3. He could not recall seeing the statement that the attending police officer had taken from him at the scene of the accident: T153.25 – T153.36;

4. A factual account of the events of the accident as recorded by a medico-legal examiner to the effect that his motorcycle had collided with the van was an apparent misunderstanding on the part of that examiner concerning the history given to him by the plaintiff: T154.23;

5. He denied the suggestion that his motorcycle was travelling well in excess of 50kph when it was in Nile Street, and he said there was “no chance” he would have been travelling at 90 – 100kph at the time: T154.27;

6. His estimate of 150m being the distance from which he had first seen the lady on the road ahead was not based on any measurement he had undertaken: T155.16;

7. He denied applying his brakes at a point about 17m before he eventually came to a stop, and he denied falling off his motorcycle to then continue to slide along the road: T155.18 – T155.29;

8. He disagreed with the suggestion that the total distance of locking of his brakes and him sliding to a stop on the road was about 70m: T155.34.

41. In the subsequent cross-examination of the plaintiff on the liability issues on 15 March 2021, as conducted by Mr Fitzsimmons SC on behalf of the second defendant, on the following topics, the plaintiff stated that:

1. He did not recall some of the detail of the evidence he gave at the initial hearing, This was not surprising as three years had passed since 2017: T275.45 – T276.1;

2. Before the accident he had moved or positioned his motorcycle towards the centre of the road to be safe: T276.39;

3. He did not see any lights on the back of the vehicle that he said had commenced a U-turn in front of him: T277.25 – T277.45;

4. He confirmed his recollection that the van had turned without warning whilst he was travelling along Nile Street: T279.42;

5. He was travelling at 50kph at the time the van pulled out in front of him: T280.2; T280.31; T281.29;

6. He did not accept that at the time of the accident he had been travelling at about “70 plus, 84, or even 90kph”: T282.14.

42. The transcript of the Local Court proceedings against the plaintiff which were heard on 18 April 2012 was tendered: Exhibit “F”. That transcript contains two factual accounts provided by the plaintiff.

43. The first of those accounts was recounted in evidence by the attending police officer, Senior Constable Doubleday, as follows:

“I remember riding along The Boulevard and tuning into Nile Street. I was driving down Nile Street and I think a van or a car or something pulled out of a driveway and I just hit the brakes and skidded. I remember the bike going sideways and then nothing. I woke up in the ambulance and I was taken to hospital. When I asked how fast were you going at the time of the accident, you said ‘I don’t remember’.”

[Exhibit “F”, p 5.6 – 5.11]

44. The second of those accounts was given by the plaintiff in his own evidence on that occasion, when he was examined by the presiding Magistrate, as follows:

“Q. I’ve held a licence for something like 45 years so - bike licence - so 1 know a bit about bikes. All right, well what happened?

A. Your Honour, I was going down Nile Street to go home and I saw a lady with two kids, kids would be maybe eight years old, around that age and height. When 1 was going down I was doing about 50 ks and I saw them next to the van how I said. 1 said towards the middle of my lane a bit and 1 was about maybe 20, 30 metres away and I started to accelerate and as soon as I did the guy in the van just pulled out. I hit my brakes and skidded, fell over, and that’s all I remember. And then I remember talking to Constable Doubleday in the ambulance. The cause of me having my accident was not that 1 was dangerous driving or whatever, it was caused by a guy in the white van that pulled out in front of me. He didn’t see me coming. He had no indicator on, no foot on the brake, nothing to let me know that there was a guy in the van to permit me to take more care. And that’s what 1 believe what happened your Honour. The guy in the white van pulled out in front of me at the last minute. I’ve hit my brakes, I fell over and I skidded after I fell over.

Q. So tell me about the lady with the two kids, where were they?

A. Next to the white van.

Q. Right?

A. Next to the white van. The van was parked on the road near the gutter and I was coming down Nile Street. When I saw them I went towards the middle of the lane. I saw the lady there with the two kids. 1 took the middle lane so it doesn’t catch one of the kids when they run out last second I can avoid them. Soon as I was close enough I just started to accelerate and then that’s when the guy pulled out in front of me. Hit my brakes, fell over and that’s what caused the accident. I’ve got photos of my bike of the tyres I took in stages and numbered them to show that I wasn’t speeding, that’s how I remember. I don’t doubt Constable Doubleday what he said but I’ve got photo proof to say that the skid marks on my bike. If I was doing over - if I was doing 100 ks plus don’t you think there’d be flat - there’d be skid marks on my tyres when I hit my brakes. I’ve got photos - that’s my daughter there.

Q. What’s the photos of?

A. My tyre of my motorbike numbered in stages, and taking photos in stages to show you that there is no evidence of skid marking on my tyre if I was doing a 100 ks.”

[Exhibit “F”, pp 6.36 – 7.23]

45. In that transcript, the plaintiff identified the photographs he relied upon in those proceedings as having been taken on about a month beforehand, that is, in March 2012: Exhibit “F”, pp 8.10 – 8.25.

Mrs Douglas

46. Mrs Douglas lived in the neighbourhood where the accident occurred. She was inside her house at that time. She said she had heard the sound of the plaintiff’s motorcycle and based on that sound, she considered that it was not going fast: T16; T17.32 – T17.47.

47. She said that she had heard the sound of what she thought was a crash and then the sound of some scraping. She said she went outside and saw some people gathered at the scene. She saw the plaintiff’s motorcycle on the ground and saw the plaintiff on the grass near a telegraph pole. She said she also saw a white van across the road in Stanley Street opposite her house: T18.48; T20.30.

48. Mrs Douglas proffered the view that the white van did a U-turn at that place every day: T18.29. She stated that she had previously seen the white van parked in her street near a house: T19.

49. When Mrs Douglas’ evidence was tested (T21 – T31), in essence, she confirmed that she had seen the white van in the street when she came out of her house: T21.38. She said that earlier:

“Q. To your right. And did you see the van at that point?

A. The van was like turning, and before that I heard the motorbike screech after I heard it coming down the road.”

[T22.3 – T22.5]

50. When cross-examined Mrs Douglas elaborated on that evidence by stating that, before the collision, she saw the van enter the street, travel down the street, then reverse and execute a U-turn: T22. She was adamant she saw the vehicle execute a U-turn on the day in question: T23.48; T27.33 – T28.5; T28.32. She was adamant that the white van executed a U-turn outside number 19 Nile Street, and then drove away up Nile Street and disappeared from her line of sight: T23.41; T25.1. She stated that she knew the man who lived in number 19 Nile Street and had seen what had happened: T25.17.

51. Mrs Douglas was cross-examined on a statement she had provided to solicitors on 15 July 2014: Exhibit “1/D2”; T25. Her statement was in the following terms:

1. On Wednesday 5 October, 2011 I had been at the Fairfield Heights college and returning home in the afternoon walking along Nile Street headed back to my home. I noticed a gathering of people from the street near the laneway of Stanley Street. I then saw a blue motor cycle on the ground like it had crashed. Nearby there was a man sitting in the gutter and he appeared to be injured. The other neighbours were attending to him.

2. As I stood and watched what was happening I heard the people talking about the accident and they said that a white van had pulled into the laneway and then reversed out into Nile Street and didn't see the motor bike coming along the street and made him have an accident to get out of the Van's way.

3. At this time I remembered when I had started walking into Nile Street from The Boulevard I saw a white van coming out of the street and drove off. I thought at the time that this white van must have been the van they were talking about.

4. I stood about for another 5 or 10 minutes and the other people seemed to have the matter under control so I went back inside to see my children.”

[Exhibit “1”, tendered by second defendant]

52. It appears from the body of evidence cited above that Mrs Douglas had given an inconsistent account of the events to the effect she had come upon the scene whilst walking towards her home and saw events as they appeared after the collision: T26.27 – T27.2. She conceded her memory of the events was poor because the events had occurred some time ago: T29.18. This was not surprising given the effluxion of time, including the period of over 3 years that passed between the two tranches of her evidence.

53. Subsequently, her evidence about the white van and its owner was clarified, and she stated that whilst she did not know the person who owned the white van, she knew he lived at 19 Nile Street, on the corner with Stanley Street: T30.17. She later clarified her evidence about the van being at 19 Nile Street, changing it to refer to number 17a, which was the second defendant’s address: T30.41. She said she saw the van there regularly before and after the subject accident: T30.47 – T31.2. I took her statement that she did not know that person to mean she knew who he was and where he lived, but she did not know him in the personal sense.

Mr Ida

54. Mr Ida is a motor mechanic. He lived in the neighbourhood. He had known the plaintiff since he was about 12 years old. At the time of the accident, he was at home having his lunch. He said that as an experienced motorcyclist, he heard the sound of a motorcycle decelerating. He likened that noise to an engine compressing the exhaust when not accelerating: T33.30 – T34.16; T39.24.

55. He said he then heard a crashing and scraping noise. He went out to investigate and saw a white van half on the road with its front wheels on the footpath or the nature strip between number 19 and number 21 Nile Street: T35.20 – T35.28; T56.1 – T56.6. This suggests that the van may not have completed the U-turn in the events of the plaintiff’s accident.

56. Mr Ida had apparently driven to the scene. He said he drove past the van and saw the plaintiff’s body on the grass, with dripping blood coming from his face, ears, arms and hands: T36.26. He noticed the presence of about 25 people standing around and he went to assist the plaintiff until the ambulance arrived: T36.50 – T37.40.

57. After Mr Ida got up from assisting the plaintiff he noticed the while van had disappeared from the scene: T37.49. He said the attending police officer at the scene did not seem interested in questioning him once he had said he had not seen what had happened: T38.6.

58. As an experienced motorcycle rider, Mr Ida said that if a motorcycle of the kind ridden by the plaintiff was travelling at 50kph, it would need 50m – 60m to stop on a relatively flat road without braking, that is, just by backing off: T44.41 – T44.50; T48.31.

59. Mr Ida said that he had moved the plaintiff’s motorcycle after the police arrived: T48.3. He said that when he moved it he noticed that it was still in gear: T53.17.

60. Mr Ida was asked to consider the proposition of the motorcycle having travelled at 90kph compared to a lesser stated speed of 50kph in terms of the expected sounds one would hear when backing off in fourth gear. He stated that in his opinion, which I consider to have been suitably experienced, the sound of the former scenario would have produced a much louder sound: T48.27 – T48.42. He did not consider the plaintiff’s motorcycle was travelling in excess of the speed limit as he considered it was making a normal backing off sound: T49.33 – T49.44; T50.27. He based that evidence on his own experience in testing motorcycles for speed: T58.38 – T59.10.

61. In cross-examination by Mr Turnbull SC, Mr Ida confirmed that his evidence as to the speed of the plaintiff’s motorcycle was based on the nature of the sound that he had heard as he interpreted it, namely, a decelerating sound: T50.36; T50.48; T51.10; T53.36. He acknowledged that opinion was gear dependent, and in that regard, he did not know which gear the plaintiff’s motorcycle was travelling in at the time: T51.25. He said he only heard the sound of deceleration of the motorcycle: T53.7.

62. Mr Ida rejected the proposition that his conclusion as to the plaintiff’s speed involved guesswork: T53.32. He said if the motorcycle had been accelerating too hard he would have heard it: T53.49; T54.6; T54.16 – T54.27; T55.25. He estimated the time interval between hearing the sound of deceleration and the sound of crashing to be about a couple of seconds: T55.38.

Mr Khalid Sawa

63. At the time of the accident, Mr Sawa lived at 32 Nile Street near where the accident occurred. His signed factual statement dated 20 July 2014 was tendered in the plaintiff’s case: Exhibit “K”. The plaintiff relied upon that statement: T395.17 – T395.26.

64. Mr Sawa’s statement was in the following terms:

1. On Wednesday 5 October, 2011 was at my home upstairs with my son when we heard a loud crash come from the street outside. I ran downstairs and out the front and saw a blue motorbike lying in the street,

I saw a crash Helmut on the street outside my house. I went out and looked up the street towards the right and saw a man injured sitting in the gutter. My son came out and he was on the phone calling 000.

1. I went out onto the street and saw there some other people helping the man in the gutter and other people picking up these things of his from the street. I saw a large white van parked on the opposite side of the street facing towards Stanley Street. The man who had been driving the van was out and near the man on the ground, he was talking on his mobile phone and I thought he was calling 000 and getting help what to do talking to the people on the phone from the Police and Ambulance, the man was very injured.

2. I saw the man's Helmut (sic), wallet and cards all over the road so I helped the other people picking up these things and took them to the man in the gutter. The man from the white van was standing near the injured man and he was telling people not to touch him in case he had back injury it was best not to move him. He appeared to be taking control of what was happening. There were a lot of people out in the street trying to help.

3. The next thing the Police arrived and I heard them talking to the man in the White van who told the Police that the bike rider was travelling along tile street and had swerved to miss something, I don't know what he said it was but It made him loose control and hit the gutter.

4. The next thing the ambulance arrived and took the man away. I then went inside.”

   65. The police records do not contain any reference to a conversation between the attending police officer and the man in the white van as described paragraph 5 of Mr Sawa’s statement as cited above. He was not cross-examined on that aspect of his statement.

   66. On 16 March 2021, Mr Sawa gave oral evidence. The salient features of that evidence was as follows:

   1. He confirmed the corrections of his statement as identified above: T395.50; T399.21;

   2. He was not proficient in reading or writing. English is not his first language. The statement appears to have been prepared by an investigator: T397.12 – T397.34;

   3. He confirmed that he heard the sound of the accident and saw a lot of neighbours, more than 20, come out. He saw a man take apparent charge of organising assistance for the plaintiff. That man, who he said had come out of the white van, was not known to him: T400.1 – T400.32.

   4. His recollection of the events has faded over the decade that has passed since the events occurred: T401.23 – T401.40.

Mr Zaya, the second defendant

67. Mr Zaya, who became the second defendant on 8 May 2019, gave his evidence in two tranches, the first was on 20 April 2018 (T212 – T229), and the second was on 31 March 2021: T445 – T456.

68. Between 2007 and 2013, Mr Zaya lived at 17a Nile Street, Fairfield West. At the time of the accident he owned two white vans that he and his employees used in his cleaning business: T212 – T213.

69. One was a Toyota Hi Ace 100 Series with registration RCZ11A. He could not initially remember the registration details of the second vehicle: T213.33 – T214.6.

70. In his first tranche of evidence, Mr Zaya stated that a painter, who lived next door to him on the right, in number 17 Nile Street, also had a van, which may have been white, however, he could not accurately remember the colour of that vehicle due to the passage of time: T215.25 – T217.3.

71. Mr Zaya said of his own vans, that sometimes one of his employees would take a van home, and at other times one of his vans would be parked in either his driveway or in the street near his (home: T218.25 – T218.34) including opposite his house (T219.36), or wherever an available space appeared in the street: T220.19 – T221.11.

72. Mr Zaya later conceded he occasionally parked his van registered number RCZ 11A in his driveway at 17a Nile Street, and sometimes on the side of the road in Nile Street, either on his side or the other side of the road: T452.39 – T452.50; T453.12 – T453.5.

73. Mr Zaya could not recall the details of his work arrangements on the day of the accident: T222.26. He was not sure if he could produce records from so long ago: T225.30 – T225.46. He recalled someone attending his home in about October 2012 asking that he sign a document about an accident that had been brought to his attention, but he declined to do so, and he did not take that document: T223.32 – T223.38; T224.22. At the time he took the view that he could not sign anything concerning something that he had not witnessed: T225.13.

74. Mr Zaya described one of his white vans as having all metal sides and the other having sliding glass panels: T226.43. He was asked about another registration number VBQ 915, but he could not remember it: T228.11.

75. Mr Zaya agreed, in answer to a question asked by Mr Turnbull SC, that sometimes he did U-turns in his van in Nile Street, if required: T229.26.

76. In the second tranche of Mr Zaya’s evidence, some 4 years later, he said he recalled giving evidence on 20 April 2018: T445.33.

77. On 31 March 2021, Mr Menzies QC put the specific question to him that on the occasion of the subject accident, he did a U-turn in his van on Nile Street. He denied that proposition: T446.10 – T446.23; T447.10 – T447.26. In answering questions on that topic he based that denial on his understanding that his employees normally used that van: T446.30. He allowed for the possibility that it might have been an employee who had driven the van on the day in question: T446.49.

78. When pressed on those issues, Mr Zaya adamantly denied being the driver of the white van on the occasion in question (T447.35), and said he had not seen the incident: T447.50. He not only denied he was the driver, but he also rejected the suggestion that he failed to give an indicator signal and denied he had failed to brake or keep a proper lookout: T448.1 – T448.24. He also denied making an unsafe turn across the path of the plaintiff’s motorcycle, and he denied that he had been present at the scene after the accident: T448.33 – T448.41. He also denied approaching the injured plaintiff and then leaving the scene: T449.12.

79. On 31 March 2021 Mr Zaya was further cross-examined by Mr Turnbull SC, who obtained the concession from him that, at the time in question, Mr Zaya owned another vehicle with a registered number which was something like VBQ 915: T451.2. That concession then became a positive acknowledgment that, in 2007, he had purchased the van VBQ915 and the registration had expired on 16 July 2011 because the engine had failed, and he had sold it to a car wrecker: T451.42; T452.18.

80. Mr Zaya could not recall purchasing a third van on 28 November 2011: T451.48 – T245.2. Mr Zaya’s evidence as to vehicle ownership must be read in conjunction with the documentary evidence comprising motor vehicle registrations.

81. The Nominal Defendant submits the combination of the evidence of Mrs Douglas and the RMS records of registration of Mr Zaya’s vehicles is a sufficient basis for a finding that it was Mr Zaya’s vehicle which was involved in the incident. That submission will be considered with regard to Issue 1.

Senior Constable Doubleday

82. The Nominal Defendant called Senior Constable Doubleday, who had attended the accident scene as a general duties officer. He did not have a tape measure with him at the scene, and he said that he made a visual estimate of distances using a football field (100m) as a comparator: T247.47. He said for distances over 20m – 30m, his baseline technique was to “imagine the length of [an AFL] football [field in his] mind’s eye”: T247.48. It was noteworthy that a simple Court room estimate by him using that method of measurement revealed margin for error of about 25 per cent: T248.46.

83. When he attended at the scene he saw what he described as a skid mark of about 20m in length as a continuous black line on the road followed by 50m of scrape marks to where the bike had come to rest on its side: T249.25. In giving that evidence he acknowledged the accuracy of his estimates was within “several metres” (T249.5 – T249.25), which suggested that allowance should be made for a significant margin of error in his estimates.

84. He said that from memory, the marks were seen to be in the middle of the lane of travel: T249.33. He described his “eyeball” estimates as having been made “roughly”: T249.46. The notes he made in his notebook and in the COPS events entry reflected that process.

85. Senior Constable Doubleday identified the plaintiff’s version of events as was obtained from him at hospital: T251.28. He stated that he did not investigate to determine the existence of the while van at the time: T252.40. There is no dispute that Senior Constable Doubleday did not further pursue the investigation to seek details of that vehicle as referred to by the plaintiff. He said that at the scene, no-one had mentioned a white van to him and no-one was prepared to give a witness statement: T253.19 – T253.45. The only person to mention a white van to him was the plaintiff: T253.23. He formed the view that the plaintiff had been at fault and thereafter he made no further investigations: T254.11.

86. Senior Constable Doubleday identified the fact that the plaintiff gave his first version of the events whilst he was in the ambulance and the second version was given at hospital some time later: T255.23. At the time the plaintiff appeared slightly dazed and confused: T255.49 – T256.1. The plaintiff’s account, as recorded in Senior Constable Doubleday’s notebook was in the following terms:

“I remember riding along the boulevard and turning into Nile Street. I was driving down Nile Street and I think a van or a car or something pulled out of a driveway and I just hit the brakes and skidded. I remember the bike going sideways and then nothing. I woke up in the ambulance and I was taken to hospital.”

[T256.26 – T256.30]

87. At the resumed hearing on 16 March 2021, Senior Constable Doubleday was called to give further oral evidence: T310 – T327.

88. At that second tranche of his evidence, on 16 March 2021, Senior Constable Doubleday was recalled to enable counsel for the plaintiff and counsel for the second defendant to explore his evidence on the new and alternative case that was by then being pursued by the plaintiff.

89. Senior Constable Doubleday confirmed that when he initially saw the plaintiff at the accident scene he could not tell what had happened, and when he later saw the plaintiff at hospital, at first he was dazed and confused, but subsequently, whilst still at hospital, sometime later, he gave an account of the events: T310.34 – T311.2.

90. Senior Constable Doubleday prepared a COPS event report of his attendances four days after the accident: Exhibit “3”. His next involvement in the events was that he gave evidence in the Local Court proceedings: Exhibit “F”. He confirmed that he had given incorrect evidence in those proceedings to the effect that the applicable speed limit was 60kph, when it was in fact 50kph, thus providing the Local Court Magistrate with a wrong impression of the surrounding circumstances: T313.15 – T313.35.

91. Senior Constable Doubleday’s evidence on those matters was further explored, as follows:

“Q. The explanations for that, Constable, that I would see is available - before I ask that question, you see at line 1 on page 3, you were asked why you issued a ticket. You said,

“The length of the skid marks and the gouges on the road left by the accused indicated that he was doing - travelling well above the posted speed limit of 60 kilometres an hour.”

A. Correct.

Q. The next question by the prosecutor is, “And you say 60 kilometres per hour is the signposted speed in that location.” And “Yes, it is.”

A. Correct.

Q. Well, obviously, that couldn't possibly be right. Isn't that right?

A. Doesn't appear so.”

[T313.37 – T314.1]

92. Senior Constable Doubleday was pressed as to from where he had obtained the speed estimate of “in excess of 100kph”. He said he could not answer that question without speculating as he had not recorded that information: T314.42 – T315.22. There was nothing in his notes to support that estimate.

93. Senior Constable Doubleday agreed, according to his inquiries, that none of the bystanders saw what happened, and his evidence in the Local Court was inconsistent with his proposition that someone had seen the accident but was not willing to come forward, and therefore, his 100kph or more estimate of the plaintiff’s speed, could not be correct: T316.20 – T316.41.

94. When Senior Constable Doubleday’s evidence about the plaintiff’s skid and gouge marks on the roadway was explored, it appears that evidence cited above had formed the basis for his estimate of the plaintiff’s speed. He also said it was based on his own experience as a motorcycle rider, having crashed at 60kph where his own skid marks “left nowhere near as long a skid mark as what he had marked out at the scene”: T317.30. The variables within that comparison hardly need stating.

95. The references to the skid having been marked out by him at the scene was not a reference to an accurate measurement as Senior Constable Doubleday had only paced out part of the described distances at the scene, namely the skid marks, in a manner that must be discounted to allow for a margin of error. His visual estimate of the gouge marks also necessarily suggests a margin of error would apply.

96. When Senior Constable Doubleday’s evidence was explored in that regard, he gave the following evidence and made concessions:

“Q. I'm just puzzled by this, because at first blush it would appear that in order to correlate gouge marks with speed, one would have to firstly identify which part of the vehicle left the gouge marks, and then to consider whether the surface of that part of the vehicle might have had, for example, a different coefficient of friction to tyres, and there would be many other aspects of the analysis along those lines that would be required in order to come to a reliable conclusion. Do you agree with that?

A. Yes, your Honour. I fully admit I’m not an expert in the matters of speed.

Q. I was just, again, seeking, to explore what your expertise was for this statement. Correct me if I'm wrong, I get the impression that you've arrived at it in an anecdotal manner based upon your own crash experience.

A. Yes, your Honour.

Q. Without measurement or calculations.

A. Yes, your Honour.”

[T317.32 – T317.47]

97. Whilst no precise technical conclusions could be drawn from that evidence, was indicated to counsel at the time (T318.3), that evidence tends to cast doubt on the reliability of the evidence of Senior Constable Doubleday as to his estimates of speeds and distances.

98. Senior Constable Doubleday was asked to identify the content of his final interview with the plaintiff whilst he was in hospital, he gave the following evidence:

“Q. Could you please read to his Honour, pages 32 and 33?

A. “Driving down Nile Street and I think a van or car or something pulled out of a driveway and I just hit the brakes and skidded. I remember the bike going sideways and then nothing. I woke up in the ambulance and was taken to hospital.” Do you want me to keep going?

Q. Keep going?

A. I asked - so, the rest of that is in shorthand.

Q. Yes?

A. So, I asked him, “What speed were you doing?” He says, “I can’t remember. Were your headlights on? It's always on. “Were you under the effects of any alcohol, drugs or other medication? No. Did you have a passenger? No. Did you suffer any injuries?” He said, “Right arm, head, left, hip and knee.” I said, “Will you now read and sign my notebook as a true and accurate record of our conversation?” He said, “No, can you dictate?” I said, “Yes.” I made a note that I read the version aloud to the driver and also made a note that he was unable to sign, so I signed and Constable Blazovik signed as well.”

[T319.23 – T319.41]

99. Senior Constable Doubleday agreed, apparently based on his own experience as a motorcycle rider, that if harsh braking was applied, the motorcycle would have become unstable, regardless of the speed: T320.16.

100. That evidence was followed-up by the following evidence concerning the content of Senior Constable Doubleday’s notebook:

“Q. You see, what you recorded in your notebook was, wasn't it - and you can check it at page 32, but I’ll read it to you. “I think a van or a car or something pulled out of a driveway and I hit the brakes hard and skidded - or hit the brakes and skidded”?

A. Correct.

Q. So, his evidence was plain enough, wasn’t it, that he saw something in front of him and he reacted to it?

A. Yes.

Q. And the something in front of him was a vehicle of some kind, to put it neutrally?

A. Yes.

Q. Isn't this generally the circumstances? You saw the gouges?

A. Yes.

Q. You saw the skid marks?

A. Yes.

Q. And you proceeded upon an assumption that those gouges and tyre marks were produced by this bike in this accident?

A. There was no doubt in my mind that they were produced by the bike.

Q. But you have - I think as you’ve already told his Honour - no expertise at all?

A. No, it was lay opinion only.

Q. A lay opinion only? And it was a lay opinion based upon, one, your own experience in an accident that had occurred sometime earlier, it seemed of a similar nature?

A. Yes.

Q. And without the benefit of any measurement by way of the use of a tape?

A. Yes.

Q. Entirely based upon your physical observation?

A. Yes.

Q. And you accept, don't you - let me ask you this question. In an investigation by traffic investigators, they rely, don’t they, upon, as part of the physical evidence, the actual measurements obtained by use of a tape?

A. Sorry, when you say, “traffic investigators”, are you talking about the crash investigation unit, or just general duties that attend traffic accidents?

Q. I’m talking about a crash investigation unit?

A. Yes, but they only attend fatal matters.

Q. I beg your pardon?

A. They only attend fatal matters. So, an accident where somebody passes on.

HIS HONOUR

Q. But there are different ways of measuring these phenomena. One simple way would be to simply pace it out, if you were on the scene?

A. Yes, your Honour.

Q. Is that what you did?

A. I paced out these skid marks, not the gouges.

Q. You said that there was no doubt in your mind that these marks were left by the motorcycle. There were two kinds of marks - skid marks and gouge marks?

A. Yes, your Honour.

Q. How did you exclude the possibility that one of those sets of marks could have been coincidental?

A. So, the skid marks were in line - directly in line with the gouge marks, which led directly to the rear wheel of the motorcycle. That, in my mind, was enough evidence to say that that was the motorcycle that had caused them.

Q. Did you, for example, make any enquiries at the scene of nearby residents to seek to ascertain whether there were any pre existing marks on the road, prior to this accident?

A. No, your Honour.”

[T321.2 – T322.27]

101. Counsel for the second defendant explored the evidence of Senior Constable Doubleday: T323 – T327. In doing so he extracted the following matters:

1. The gouge marks on the road that he had estimated by line of sight rather than pacing it out led in a straight line from the rear wheel of the motorcycle to the skid marks which he had paced out: T327.8 – T327.30;

2. He confirmed the general proposition that in a situation of extreme or harsh braking, more rubber would be left on the road than gentle braking: T324.50;

3. He confirmed that his contemporaneous notes of the scene identified his estimate of 20m of skid mark and 50m of slide marks on the roadway: T326.43;

4. He confirmed that he had completed his primary paperwork in the form of running sheets concerning his attendance by 5.58pm on the day of the accident: T326.49.

102. Copies of Senior Constable Doubleday’s notebook entries and his COPS event material were in evidence: Exhibit “3”. The COPS event summary incorporated the contentious speed estimate of “in excess of 100kph, based on descriptions by witnesses”.

102. In fact there were no such witnesses. Senior Constable Doubleday acknowledged this error in his oral evidence. The significance of that incorrect factual account will be taken up in the analysis of the expert opinion evidence on the liability issues.

Expert evidence attempting accident reconstruction

104. The plaintiff and the Nominal Defendant each relied upon expert accident reconstruction evidence obtained from consulting engineers. That evidence took time to evolve, between 2014 and 2017, as explained in the paragraphs that now follow.

105. The first such report dated 15 July 2014 was obtained by the Nominal Defendant from Mr Christopher Hall: Exhibit “2” pp 1 – 21. In response, the plaintiff’s first accident reconstruction report, dated 26 September 2014, was jointly prepared by Mr Roger Kahler and Mr Ricky Blom: Exhibit “G”.

106. On 27 January 2015, the Nominal Defendant obtained a second report from Mr Hall in response to the 26 September 2014 joint report the plaintiff had obtained from Mr Kahler and Mr Blom: Exhibit “2” pp 22 – 26.

107. In response, on 16 November 2015, the plaintiff obtained a second joint report from Mr Kahler and Mr Blom: Exhibit “H”.

108. Those events led to Mr Hall and Mr Blom meeting in a conclave on 17 July 2017, following which they issued their joint report of that date: Exhibit “2” pp 27 – 35. That joint report identified matters upon which the experts respectively agreed and disagreed.

109. At the hearing Mr Kahler was unavailable to give oral evidence. In those circumstances, on 16 March 2021, concurrent expert evidence session was convened with Mr Hall and Mr Blom, who gave their evidence together: T338 – T394. My reasons for deciding the appropriateness of that course were delivered ex tempore at that time.

110. The expert evidence identified the above paragraphs is summarised in the order in which it evolved, as now follows.

First report of Mr Hall – 18 July 2014

111. On 15 July 2014 the Nominal Defendant obtained Mr Hall’s accident analysis report: Exhibit “2” pp 1 – 21.

112. Mr Hall was of the opinion that it was most likely the plaintiff was travelling at a speed of 80 – 95kph along Nile Street. He was of the opinion that if the plaintiff had been travelling at a speed of 65kph or less, he could have safely slowed to a stop before reaching the point here his motorcycle fully capsized after 20m of skidding: Exhibit “2” p 3. Mr Hall had Senior Constable Doubleday’s incorrect statement before him at that time, raising the possibility that his analysis may have been influenced by that erroneous statement.

113. Mr Hall concluded that if the plaintiff had been travelling at the speed limit he could have stopped safely before reaching the end of the 20m skid mark by using only a low level of braking instead of heavy emergency braking: Exhibit “2” p 3.

114. The reliability of the materials and the assumptions relied upon by Mr Hall, as identified on pp 4 – 9 of his report, will in turn be influential to a determination of the reliability of his opinions.

First report of Mr Kahler and Mr Blom – 26 September 2014

115. On 26 September 2014, the solicitor for the plaintiff obtained a liability report from Mr Roger Kahler and Mr Ricky Blom, consulting engineers from Intersafe: Exhibit “D”, pp 73 – 103. This report was in part a response to the Nominal Defendant’s Hall report dated 15 July 2014.

116. This report identified the materials considered as was provided by the plaintiff’s solicitor and as was augmented from impressions gained from a view of the accident scene undertaken on 2 September 2014.

117. The Intersafe report was expressed to be in general agreement with the Hall report if the underlying assumptions within that report were to be accepted: Exhibit “D”, p 82. The report noted deficiencies in the physical evidence. The considerations which based the report included concepts of perception/reaction time, and speed analysis.

118. The report identified deficiencies in the police observations that lacked precise measurements of skid and scrape marks, and the generally accepted difficulty of relying on poor non-empirical estimates of distances, weights, lengths and other measurements: Exhibit “D”, p 87.

119. The report cast doubt upon the police conclusion that the skid mark on the roadway was made by the plaintiff’s motorcycle. This was because of the absence of flat spot damage to the motorcycle tyres: Exhibit “D”, p 87. This was the part the plaintiff was trying to get across in the earlier Local Court proceedings.

Second report of Mr Hall – 27 January 2015

120. Mr Hall’s second report, dated 27 January 2015, was prepared at the request of the solicitor for the Nominal Defendant, who sought Mr Hall’s comments on Mr Kahler’s report dated 26 September 2014. Pursuant to that request, Mr Hall made the following points:

1. Mr Hall could not comment on the photographs of the tyres on the plaintiff’s motorcycle because those photographs had insufficient clarity for him to make a comment on the nexus between the observed condition of those tyres and the skidding and locking of the motorcycle: Exhibit “1”, p 23. It was not clear whether the copy photographs he had were of the same clarity as those tendered in evidence in these proceedings;

2. Mr Hall traversed a number of points including the appropriateness of the sliding friction value adopted by Mr Kahler in his calculation, the rapid locking of a front wheel, the commonly encountered phenomena of non-empirical distance understatement, brake build-up and time taken for brake build-up, with associated likely speed loss, and differences in the approach to estimating the speed of the motorcycle.

121. On the issue of skidding and related evidence of tyre wear that indicated the expected signs were not present on the photographs in evidence, well-established authority identifies the difficulties associated with fact-findings based on the interpretation of photographs: Blacktown City Council v Hocking [2008] NSWCA 144, at [7]-[10], [167]-[170]; Angel v Hawkesbury Council [2008] NSWCA 130, at [69]-[72]; Warren v Gittoes [2009] NSWCA 24, at [2]-[3]; Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85, at [8], [20]-[29]; Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326, at [66]; Goode v Angland [2017] NSWCA 311, at [89]-[96].

122. However, in this case, that principle is moderated somewhat by the fact of the plaintiff’s descriptions, and that of Mr Blom, which were to the effect that there was no flattening of the rubber seen on the numbered sections of tyre as shown in the photographs: Exhibits “6” and “7”.

123. Significantly, on the critical question of distance estimation, in arguing for his preferred interpretation, Mr Hall placed great emphasis on what he considered to be the likely accuracy of police estimates of skid and scrape marks, identifying a factor of +/-20 per cent variation (Exhibit “1”, p 24), and his view that it would be “highly unlikely” that the police officer would confuse a scrape distance of 11 – 16m with one of 50m, using that view to discount the plaintiff’s evidence that he was travelling at 50kph at the time of the accident: Exhibit “1”, p 25.

124. In my view, Mr Hall’s reliance on those propositions had the effect of introducing an element of untenable speculation into the analysis. There can be no default assumption of accuracy of estimates given by police officers, without more supporting detail. That detail was lacking in the evidence in this case.

125. The above analysis led Mr Hall to discount Mr Kahler’s conclusions claim that he had missed important information regarding braking and capsize of the motorcycle, and claimed Mr Kahler “has missed the major inconsistency between assuming a speed of 50kph and the physical evidence observed and reported by the Police”: Exhibit “1”, p 26.

Second report of Mr Kahler and Mr Blom – 16 November 2015

126. On 16 November 2015, Mr Kahler and Mr Blom issued their second or supplementary Intersafe report: Exhibit “D”, pp 104 – 123. This report commented on Mr Hall’s report dated 27 January 2015.

127. The differing opinions between the experts identified the basis of difference to be the content of the assumptions made by the authors. Variable considerations were identified as being the accuracy of assumed distances, estimation of speed loss of the motorcycle during brake build up time and capsize time, and an acknowledgement that there can be much debate about velocity and distance calculations: Exhibit “D”, pp 107 – 108.

128. The Intersafe report cast doubt upon the reliability of Mr Hall’s assumed +/- 20 per cent margin for error. The report also identified scope for interpretative error: Exhibit “D”, p 108.

129. Messrs Kahler and Blom considered the available hypotheses, namely: (1) the plaintiff’s speed of 85 – 95kph; and (2) the plaintiff’s speed of approximately 50kph, and concluded that the most likely hypothesis was the plaintiff’s speed of approximately 50kph at the time he heavily applied the front breaks: Exhibit “D”, pp 109 – 110.

Joint conclave report of meeting of Mr Hall and Mr Blom – 17 July 2017

130. The collaborative joint expert report from the conclave states, remarkably, that the experts were not provided with any questions by the respective solicitors for their consideration. The report also stated they were given no assumptions. They also stated that there was no physical evidence by way of proposed plans detailing tyre marks, road surface scrape marks, debris, nor any photographs of the scene which would assist in the reconstruction of the incident. They listed the documents that had been provided to them: Exhibit “2”, p 35. The experts seem to have been left to their own devices. That approach lacked the rigour normally seen in instructions to and questions for experts.

131. In light of the above disclosures, it seems that the most reliable course is to proceed to a consideration of the oral evidence of the experts.

Concurrent oral evidence of Mr Hall and Mr Blom – 16 March 2021

132. In the concurrent evidence session the competing views of Mr Hall and Mr Blom were identified and explored, and the matters upon which they either agreed or disagreed were identified.

133. Those experts agreed on the following matters:

1. The experts agreed that if in fact the skid mark in question was 20m long and the related gouge mark was 50m long, then the plaintiff’s speed before he applied his brakes would have been in excess of 80kph: T356.1 – T356.11. That agreement must be read subject to a margin for error in the estimates of Senior Constable Doubleday;

2. The experts agreed that, as a matter of principle, prior to the commencement of the skid mark, a period of brake application must have passed, allowing for what is called brake build-up and deceleration. They agreed that proposition supports a conclusion that the speed would have been in excess of 80kph: T356.36 – T356.41. That agreement was significantly qualified by Mr Blom’s comment that he had no reliable evidence of the length of the scrape and skid marks and those factors were based on assumptions: T356.45 – T356.48. Mr Hall agreed that the conclusion was assumption-based: T357.5;

3. The latter point was further reinforced by Mr Hall, who stated that if there was no finite definition of the sliding length, being the distance over which the motorcycle had slid, then a calculated conclusion as to speed cannot be arrived at: T357.25 – T357.40;

4. Mr Hall pointed out that the length of the police officer’s pace was a variable, and he had no idea of the margin for error to be allowed, but if 20 per cent was allowed as suggested by Mr Hall, a 50m distance could be reduced to a 30m distance, which he referred to as a huge difference: T359.34. The impression of arbitrary guesswork in this process is a compelling conclusion;

5. Mr Hall agreed that estimated measurement using eyesight projected over distance alone are unreliable, and he conceded the obvious point that an estimate is not the equivalent of an accurate measurement: T359.42 – T360.20. This calls into question the need to assess the reliability of estimates provided by Senior Constable Doubleday in this context;

6. Both experts in effect agreed that a crucial element in the consideration of the speed of the plaintiff’s motorcycle was the accuracy or inaccuracy of the police officer’s pacing, as a measurement, with the result that if one cannot arrive at a proper measurement of distance, then one cannot make a reliable estimate of the speed: T361.23 – T361.31;

7. In light of the potential inaccuracy of Senior Constable Doubleday’s estimate of the 50m gouge mark on the road, Mr Hall attempted a fact check exercise in which he factored in a 20 per cent allowance for error (T377.37 – T378.2), to arrive at a different speed estimate closer to 80kph: T380.21. In my view that involved introducing an unsupported speculative component into the analysis as the 20 per cent assumption involved speculation;

8. Mr Blom declined to comment on the speculative proposition on differing assumptions that did not arise from the evidence (T382.1), and preferred to rely upon research data rather than what I considered to be arbitrary and speculative changes in assumptions: T382.14.

134. The matters upon which the experts disagreed are identified as follows:

1. Whereas Mr Hall considered that signs of damage can be consistent with certain sliding distances, Mr Blom disagreed because account must be taken of damage due to vertical impact compared to sliding impact, that is, how the motorcycle initially interacted with the roadway: T364.38 – T365.14;

2. In making that latter point of disagreement, Mr Blom identified the difficulty of simply identifying a speed based on signs of damage where account must also be taken for possible rotation of the bike where rotation can made a difference to the calculations: T368.21 – T368.45. This was where (at T366.45), Mr Hall had acknowledged that factor, and later added further factors, namely, whether the motorcycle had bounced when it fell, and whether it then went forward in a straight line until it came to rest: T368.49 – T369.1. This highlighted the speculative nature of experts seeking to make incomplete factual assumptions on matters where factual data was absent when trying to achieve a tidy or neat analysis;

3. There was uncertainty and disagreement over the sequence and extent of wheel locking, that is, including whether the back wheel had locked. Mr Blom thought it had not, because there was insufficient removal of material from the cycle to reach that conclusion where it was also consistent with the motorcycle having simply been dragged across the workshop floor: T371.36 – T371.44;

4. The speculative conclusions from the fact of wheel locking became evident in the following tract of evidence:

“TURNBULL: And again, consistent with the wheel having locked and being dragged along the roadside, skidding?

WITNESS BLOM: It’s not in line with the motorcycle. The motorcycle would have to veer to the - the rear of the bike would have to veer to the right hand side, to get those - the directional rub marks.

TURNBULL: The bike would be falling though, wouldn’t it?

WITNESS BLOM: Not necessarily.

TURNBULL: Well, isn’t that the effect of your evidence, that you agree with Mr Hall that once you’ve locked the wheels, the bike falls in three quarters of a second?

TURNBULL: Well, that mark could have occurred during that fall, couldn’t it?

WITNESS BLOM: Not this one, because the marks were in the other direction.

TURNBULL: Again, is that the front or the rear wheel?

WITNESS BLOM: That’s the rear wheel.

TURNBULL: Mr Hall, do you have a comment about that?

WITNESS HALL: Yes. It is clear that the wheel has locked, and it's been sliding, and the diagonal nature of the marking is consistent with what typically occurs when the rear wheel of the motorcycle is locked, and that is the rear wheel drifts away from alignment of the direction of the motorcycle because it's actually trying to surpass the front wheel which is being braked at a higher level. Because of the - once you get to 100% saturation of slip at the wheel, it loses traction and then it starts to wander down the road. And typically what we will see is, there will be a slight curvature in the tyre mark made by the rear wheel, and through that you get a diagonal striation effect across the face of the tyre. In this case, it is essentially still upright, but the back is drifting away.

TURNBULL: Do you agree with that, Mr Blom?

WITNESS BLOM: It could, but in this situation the back would be drifting the wrong way for the angle of the fall of the bike.

TURNBULL: Mr Hall?

WITNESS HALL: No, I don't see how that is - a motorcycle drifting away to the right, and then the front wheel slips to the left, creates a fall on the right hand side. Because as the rear of the motorcycle drifts to the right, the rider has to, in maintaining balance, turn the steering wheel to the right and on applying full lock up pressure at the brake, the motorcycle will then slide - the front will slide to the left because the momentum of the rear of the bike is towards the right. So in a dynamic sense, one would expect that the motorcycle would fall onto the right hand side.

TURNBULL: Do you accept that, Mr Blom?

WITNESS BLOM: I have a differing opinion, of the rear of the bike having to go to the left and slipping out from underneath the rider to fall on its right hand side.

WITNESS HALL: But can I just say, maybe you're confusing the back sliding down first, whereas this clearly indicates it didn't slide down.

WITNESS BLOM: Yeah, I can't make that determination.

WITNESS HALL: Right. So what you're describing is that the back wheel locks and it would have to slide to the left to be a rear wheel locking only condition?

WITNESS BLOM: Or front wheel locking as well.

WITNESS HALL: But it’s predominantly the rear wheel that has rotated around to cause the fall on the right hand side, whereas with the predominant front wheel lock up, the motorcycle - the rear wheel drifts to the right and any locking then will cause a fall to the right because the front wheel pushes away to the left under a lock wheel condition.

TURNBULL: Mr Blom?

WITNESS BLOM: I’d have to accept both. I feel it could happen either way. but I don't see it happening.”

[T373.15 – T374.43]

5. The essential difference between the two engineering experts is that whereas Mr Hall determined the plaintiff’s speed prior to emergency braking as being in excess of 80kph, Mr Blom considered it to be approximately 50kph: T377.7 – T377.44;

6. The experts disagreed on the appropriate perception reaction time involved with the plaintiff observing the van before it turned. Mr Blom considered 2.5 seconds (T390.4) was an appropriate reference point (Mr Hall) considered the general reference to be 1.5 seconds: T390.31. Mr Blom pointed out the assumption was that the focus could have been near the van, as distinct from on the van: T391.18 – T391.35. In that context, a one second difference could mean a difference of 14m in travel distance at 50kph (T352.16), and 22m difference at 80kph: T392.20. Those matters raised by Mr Blom demonstrated the danger of adopting as fact, generalised considerations that make limited or no allowance for prevailing factual circumstances.

135. I now turn to the consideration of the issues and matters calling for decision.

Issue 1 – Identity of the vehicle

136. Section 34(1) of MAC Act provides a mechanism for making claims for damages for negligence in cases of fault on the part of the owner or driver of a motor vehicle where, after due inquiry and search, the identity of the vehicle cannot be established. To maintain such a claim a claimant must show that there has been due inquiry and search to seek to establish the identity of the motor vehicle concerned: s 34(2) of MAC Act.

137. Ultimately, after the joinder of the second defendant, in final submissions, the Nominal Defendant did not raise or argue an issue over whether the plaintiff had pursued appropriate due inquiry and search.

226. The medical evidence shows that at the time of the accident the plaintiff was still unfit for his usual work because of his left scaphoid problems which resulted in a fall from a roof on 1 September 2010. Dr Sanki noted that the resultant carpal tunnel syndrome was a progressive disease that can result in permanent weakness and loss of sensation in the hand if the affected nerve is not released: Exhibit “L”, p 455.

227. On 28 October 2013, Dr Dias, an occupational physician, diagnosed the plaintiff as having bilateral carpal tunnel syndrome (a genetically determined problem) due to his prior employment: Exhibit “L”, p 632). He made no connection between those problems and the accident ton 5 October 2011. His diagnosis was that the plaintiff was unfit to return to his previous employment on account of that bilateral carpal tunnel condition because of the vibratory nature of that previous work, and that the plaintiff should therefore pursue lighter work: Exhibit “L”, pp 620 – 633.

228. The effect of Dr Dias’ opinion is that pre-accident, the plaintiff had only a very restricted earning capacity, and the effect of the accident has subsequently made him unfit for any form of employment: Exhibit “L”, p 632.

229. In my view, the work incapacity opinions of Dr Bentivoglio, Dr Giblin, Dr Sun and Dr Lim, must be read in light of the unchallenged opinion of Dr Dias as outlined above, quite apart from any post-accident psychological problems the plaintiff has incurred.

Conclusion on plaintiff’s residual earning capacity

232. I therefore conclude that the accident on 5 October 2011 has destroyed any residual earning capacity the plaintiff had at the time of that accident, albeit that such capacity was untested, either in a practical sense, in the labour market.

233. Accordingly, the report of Mr Girder dated 30 October 2020 (at Exhibit “L”, pp 636), to the effect that the plaintiff had a residual earning capacity as a service technician capable of potentially earning between $1632 to $3078 per week, must be substantially discounted as being inapt, particularly as a consequence of the plaintiff’s ongoing wrist problems.

Findings on damages issues

234. In the paragraphs that follow, I set out my factual findings on the topics: (1) the plaintiff’s background circumstances; (2) the plaintiff’s injuries and his initial treatment; (3) the plaintiff’s remaining disabilities; (4) the effect on the plaintiff’s employment; and (5) the plaintiff’s most likely circumstances but for his injuries.

(1) Plaintiff’s background circumstances

235. The plaintiff’s pre-accident work history was heavy and mechanical in nature. He worked for various employers, including having worked as a service technician. He also worked for his father setting up water pressure pipes and equipment for Mr Sahade’s Crystal Car Wash business whenever that business opened up new premises. He did the maintenance work on the existing machinery in Mr Sahade’s businesses. The plaintiff said that his financial arrangements changed when he became divorced from his wife, which led him to divest himself of a share in his father’s business and went onto wages.

236. Prior to the accident the plaintiff had some months of incapacity due to a work-related injury on 1 September 2010, when he fell on an outstretched hand and suffered a fractured scaphoid. He was still recuperating from hand surgery when the accident occurred.

237. Shortly before the subject accident, the plaintiff had entered into a contract of employment with his father’s business, M&A Pro Pressure Australia Pty Ltd. At that time, his father who had founded the business, had started to suffer from dementia, and the arrangement was for the plaintiff to do all the work of the business. The plan was for him to in due course re-acquire his former share in the business, with his brother, but the accident intervened, and he has not worked since then.

238. Pre-accident, it was arranged by contract for the plaintiff to be paid $950 per week net and 10 per cent of any projects completed by the company M&A Pro Pressure Australia Pty Ltd. That employment was short-lived. He did not receive any such 10 per cent payments as had been anticipated, and his income from that company stopped after the accident. The business has since ceased to trade.

239. The plaintiff said he was to be paid at a reduced rate of $25 per hour because it was a family business, and said the usual going rate was more like $50 per hour. He said he could not recall his earnings in his previous job in the 2 years prior to the accident. The documentary evidence shows that the plaintiff’s 5 year pre-accident earnings, including the year of the accident, were as follows:

TAX YEAR	ASSESSED TAXABLE INCOME	WEEKLY TAXABLE INCOME
2007	$34,701	$667
2008	$28,892	$555
2009	$17,656	$339
2010	$28,892	$555
2011	$27,813	$534

[Exhibit “L”, pp 645 – 653]

240. The plaintiff’s actual earnings for the period of 14 weeks from 1 July 2011 to 5 October 2011 have not been identified in the evidence. That said, even allowing for the impact of taxation on the figures tabulated above, the evidence of the plaintiff’s historical earnings do not show an income of anything near $950 per week net.

241. The plaintiff was not in the best of health prior to the subject motorcycle accident. It appears that in August 2011, he had a monetary settlement from a previous work injury. In 1993, he also had a previous CTP claim. He also had a fall from a roof in September 2010: T122.32. There was not a lot of information about the effect of the injuries arising from those events.

242. As explained at paragraphs [229] to [230] above, the medical evidence of Dr Dias referred to in the sub-paragraphs of paragraph [211] above makes it clear that the plaintiff was not fully fit for manual work or heavy work at the time of the motorcycle accident. On 11 July 2011, he had an operation on his left wrist, and although he returned to work in a cast some weeks later, he was restricted in the duties that he could perform: T110.112. He was restricted with the use of his left arm for lifting: T124.5. Those problems would undoubtedly have had an adverse impact on his earning capacity for an uncertain period of time.

243. In about 2000, the plaintiff’s previous operations on both wrists for carpal tunnel releases, must be taken into account in assessing his future economic loss damages: Exhibit “D”, p 4. His pre-injury work involved him lifting pumps weighing between 10 to 25kgs. As at the time of the accident, he did not have full use of his hands and arms for that kind of work. He had some prior and lasting problems with his left hand: T125.27. Those matters would doubtless have had an adverse impact on the plaintiff’s capacity to work in his pre-accident employment or in similar occupations. The medical evidence tendered in the plaintiff’s case does not identify a time when he would have been likely to have regained a fitness to resume full normal duties for his pre-operative work tasks.

244. The plaintiff’s recollection on some factual matters relating to damages issues was limited. This required recourse to such contemporaneous records as are available; to be examined to clarify those issues.

(2) Injuries and initial treatment

245. There is need to differentiate between the plaintiff’s pre-existing health issues and the effects of the plaintiff’s accident on 5 October 2011. In light of the possibility of the plaintiff’s fallible memory being an unreliable guide to determining the extent of his injuries, in this case it is important to look to the contemporaneous hospital records to identify the injuries he sustained in the accident.

246. In the absence of the availability of ambulance records, I consider the most useful records to examine in order to commence the discernment of the plaintiff’s injuries are the hospital notes which would ordinarily be expected to document those injuries. This is so especially where there was a history of a concussive head injury with a consequential period of impaired consciousness and confusion. An examination of the early photographic evidence and the evidence of early medical consultations are also relevant to that inquiry.

Hospital records

247. The contemporaneous hospital record, albeit tendered in a limited extracted form, is informative in two respects, first in relation to the plaintiff’s account of his speed at the time of the accident, a matter that has already been adverted to in relation to Issue 3 above, and secondly, it provides a useful survey of the plaintiff’s injuries. The relevant part of the record comprises Exhibit “L”, p 432 and Exhibit “D”, p 67.

248. The hospital notes record the plaintiff to have had the following injuries:

1. A concussive head injury with a loss of consciousness;

2. Frontal abrasions, which I infer relate to the plaintiff’s head;

3. An occipital laceration requiring suturing;

4. Lower cervical spine problems;

5. Fractured scaphoid in the right wrist;

6. Fractured left hamate bone in the left hand;

7. Abrasions to both knees;

8. Fracture of left big toe.

249. In focussing on the hospital notes I have not ignored the plaintiff’s various histories as recounted to examining doctors or his oral evidence, however in this case, I consider the hospital records as analysed above to be the most reliable first guide to assist in determining the plaintiff’s injuries.

250. As already observed, the hospital records which have been tendered were not complete or continuous. Nevertheless, the notes that comprise the initial injury survey appeared to be complete. It is possible that other hospital records were created which may have recorded other injuries, however, I discount that possibility in this case where the plaintiff has been represented by experienced practitioners, and the presumption must be that the extensive subpoenaed material, would have been scrutinised for relevant details to be included in the exhibits for consideration in the plaintiff’s case.

Photographic evidence

251. On 26 March 2012, some historical photographic evidence of the plaintiff’s injuries was either taken or assembled by an investigator commissioned by the plaintiff’s solicitor: Exhibit “L”, pp 418 – 434. Those photographs identified the plaintiff’s injuries to be:

1. A small cut to the back of his head;

2. Abrasions to the front of his head;

3. Abrasions to the left temple;

4. Grazing injuries to both arms;

5. Large graze to the right hip;

6. Abrasion to the left arm;

7. Abrasion to the right knee;

8. Bruising to the left toes.

Early consultation with general practitioner

252. The precise date on which the plaintiff was discharged from hospital is not readily apparent in the medical material tendered. However, it is evident that on 11 October 2011, after he had been discharged from hospital, he consulted a general practitioner, Dr Fernandopulle. At that time, which was reasonably contemporaneous to the accident, it was recorded that the plaintiff was complaining of matters additional to those which were recorded in the hospital notes cited above.

253. Those additional complaints, as recorded by Dr Sanki on referral from Dr Fernandopulle, comprised pain and stiffness in his hands, wrists, knees, back, and his shoulders: Exhibit “L”, p 457.

Conclusion as to injuries

254. In light of the content of the contemporaneous record, and the plaintiff’s initial impaired state of consciousness at the time of the accident, and the fact that he was probably not very mobile in his hospital bed, which may not have revealed his full array of injuries, and given the forceful nature of the accident where his body fell to the roadway, it is more probable than not that the plaintiff would have had multiple jolting injuries to the soft tissues of his hands, wrists, neck, shoulders, back, and knees in addition to the observable abrasions, bruising and lacerations that were recorded, but not necessarily noted in the immediate post-accident survey of his condition.

255. I find that the soft tissues in those identified areas of the plaintiff’s body would most probably have been subjected to injurious forceful contact in the fall from his motorcycle onto the road, and by any subsequent rolling or sliding of his body that followed until he stopped moving at the point where he was found and given assistance.

256. As the plaintiff already had some past underlying problems to those areas, I find that the subject accident most probably had an aggravating effect on those areas. In those circumstances it is unlikely that he would not have suffered aggravation to those identified parts of his body.

(3) Disabilities that remain

257. The duration of any aggravating effect of the accident on the plaintiff’s underlying condition raises other questions.

258. The medical reports show that since the accident on 5 October 2011, the plaintiff has complained of many disabilities. Not all of those complaints have been definitively analysed as relating to the subject accident. The material questions which remain unanswered in the medical evidence are, first, when did the aggravating effects of the plaintiff’s accident cease to operate (if at all), or secondly, whether all of the plaintiff’s complaints are as a result of the accident.

259. The plaintiff bears the onus of proof in disentangling the facts that determine those questions: s 5D, s 5E of the CL Act; Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, at [8]; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] – [51].

260. I am in no doubt that the plaintiff’s psychological problems of depression, as described at paragraphs [220] to [225] above, are as a result of the accident on 5 October 2011. Furthermore, it seems that as a result of those problems, and his decreased activity and his amotivation, he has developed significant weight gain and obesity.

261. As to the degree to which the accident on 5 October 2021, has caused lasting complaints of pain in the plaintiff’s neck, shoulders, back and knees, as distinct from what might have been the case but for the accident, the medical evidence tendered does not provide useful guidance to disentangle those questions.

262. In such cases, it is customary to call explanatory oral evidence from medical experts to provide a rational means by which to decide such issues. The party seeking the benefit of findings in that regard, here the plaintiff, bears the onus in that regard and takes the risk of a negative finding if that onus has not been discharged: Majkic v Bonnano [2008] NSWCA 253, at [26], Larson v Commissioner of Police [2004] NSWCA 126, at [48].

263. Such matters should be disentangled and determined on a rational non-speculative basis as explained at paragraph [259] above. I am therefore compelled to find that the plaintiff has not discharged the onus of proof on defining all of the particular disabilities that have been caused by the accident on 5 October 2011: s 5D and s 5E of the CL Act.

(4) Work effects

264. The plaintiff has not worked since the subject accident. There is no suggestion that the plaintiff has unreasonably failed to mitigate his damages: s 138(1) of the MAC Act. The preponderance of the medical evidence is to the effect he was and still remains unfit to work and that will continue to be the case. The work for which he was fit at the time of the accident was lighter and not the same as his pre-accident work. The medical evidence dos not reliably identify a time when the plaintiff would have been fit for taking up light duties after his pre-2011 accident scaphoid surgery.

(5) Plaintiff’s most likely circumstances but for injury

265. In cases where a projected future loss of weekly income is sought, the assumptions which base such a projection must be stated: s 126 of the MAC Act.

266. The starting point for identifying the plaintiff’s most likely circumstances but for his injury requires that due regard be given to his pre-accident condition of health as identified in sub-paragraphs (1) to (5) of paragraph [211] above.

267. When those matters are considered it becomes clear that the plaintiff was at pre-accident risk of his hands, arms, shoulders, neck, back and knees becoming symptomatically troublesome for him over the course of his remaining working life.

268. This would most likely have had an adverse impact on the plaintiff’s future capacity to continue to work in occupations requiring manual dexterity, but also occupations requiring agility and strength. Those circumstances involve a series of imponderable factors that require a discounting approach when assessing the plaintiff’s claim for future loss of earning capacity, and his claim for past loss of earnings for that matter, given the time that has passed since the accident.

269. Those imponderables include questions such as if and when those factors would start to have an adverse impact on the plaintiff’s ability to continue working, and to what extent that adverse impact might be, and what residual earning capacity might nevertheless remain for the plaintiff to exercise, with what monetary result. I therefore consider that the discount should be approached along the lines discussed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, at pp 642 – 643.

270. Those matters lead me to conclude that the plaintiff’s claim for past and future loss of earning capacity should not be assessed at the rate of $950 per week net, but instead at a substantially discounted rate in the form of separate buffer amounts after taking into account a range of identifiable and unidentifiable imponderable factors: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

Assessment of claimed heads of damage

271. I now turn to the assessment of the plaintiff’s damages.

272. The plaintiff makes a claim for $1,365,526.72 in respect of those heads of damage. In contrast, the defendant submitted that a far lesser amount should be awarded. The position taken by the defence was based on Dr Lim’s report dated 30 July 2017, and allowed for $24,700 for past loss of income and a small allowance of between $2533.70 and $4103.60 for past treatment expenses.

273. I do not accept either of those submissions. I do not accept the defence approach to the assessment of damages because that approach is based on Dr Lim’s assessment which I have not accepted. I do not accept the plaintiff’s damages submissions because they are excessive and they do not reflect relevant underlying factors in the evidence that must be taken into account, and which requires a more restrained assessment than that submitted on behalf of the plaintiff.

274. My assessments of the claimed heads of damage are as follows.

Past domestic assistance

275. The plaintiff makes no claim for future domestic assistance or assistive equipment. It has been agreed that the plaintiff’s damages for past domestic assistance provided by his daughter Christina in the months following the accident, should be limited to an initial 6 months in the assessed amount of $5000.

Past economic loss

276. The plaintiff’s claim for past economic loss must be assessed by having regard to several elements. First, the plaintiff’s historical earnings, secondly, the plaintiff’s evidence and that of Mr Sahade, as to the plaintiff’s probable earnings but for his injuries, and thirdly, the likelihood of the plaintiff having the capacity to derive earnings of the order suggested by Mr Sahade in light of his pre-existing medical issues and the natural probable consequences of those issues as they impacted on his earning capacity.

277. The defence submitted that the plaintiff had exaggerated his income at $950 per week net and pointed to the amount of $700 per week as was earlier disclosed in his personal injury claim form. The plaintiff has certainly relied upon an inflated figure for his weekly income. He explained that this was based on the contract that was about to take effect and he had forgotten about the earlier lesser amount. In view of the passage of time and the scope for memory to fade, I am not prepared to accept the defence submission that the plaintiff’s explanation, in that regard beggars belief.

276. The plaintiff claims the rounded sum of $519,000 for past economic loss. This comprises a calculation of $950 per week net over 492 weeks ($467,400) less an allowance for employer funded superannuation at 11 per cent ($51,414) on that calculated amount. That figure is in my view overstated.

277. In my assessment, based on the analysis identified at paragraphs [229] to [230] and [242] to [243] above, it was unlikely that the plaintiff would have been able to fulfil the physical requirements of the work required of him by M&A Pro Pressure Australia. This is because, as at the time of the subject accident, he had not yet recovered from his wrist surgery that was carried out in July 2011. The medical evidence relating to that period suggests that it would have been some time before he could have assumed full and unrestricted duties in that work, if at all.

278. The likely timing of the plaintiff being able to resume any work duties has not been established on the evidence adduced. This calls into question the rate at which damages for past economic loss should be assessed and the period of the assessment.

279. There is reasonable room for doubt as to whether the plaintiff would have been able to resume full duties and continue to sustain full duties up until the time of the hearing because of the effects of his increasing age and the prospect of an incomplete recovery for reasons unrelated to the subject accident.

280. The unchallenged medical evidence of Dr Dias, as identified at sub-paragraph (24) of paragraph [211] above, shows that there was considerable scope for an incomplete recovery from the unrelated problems the plaintiff had to deal with and which would likely serve to impede him from exercising a full earning capacity. In my view there is a need to apply several discounting factors to the assessment of the plaintiff’s claim for past loss of earnings to reflect the evidence.

281. First, the plaintiff may not have achieved full fitness in order to gain the benefit of his proposed contracted earnings of $950 per week. Secondly, the period for commencement of earnings at the level of $950 per week rate may not have coincided with the time of the accident, it may have commenced at a later date as a result of a more prolonged recovery period in which time Mr Sahade may have needed to look elsewhere to obtain the maintenance services he required for his businesses. If that were the case, then the plaintiff’s rate for assessment of economic loss would be more like $700 per week net as he had initially disclosed, if not a lesser rate for lighter work.

282. Those factors are not capable of precise estimation in terms of monetary impact. In those circumstances I consider the appropriate method to be adopted is along the lines of discount as explained in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, at pp 642 – 643.

283. Adopting that approach, on the balance of probabilities, I consider that the prospect of the plaintiff being able to be in a position, in 2011, of gaining and sustaining the benefit of the contract he now relies upon as a yardstick for assessment would be much less than 50 per cent, more like 30 per cent.

284. Without attempting to identify precisely the net weekly income on those amounts, it is readily apparent that the plaintiff’s earnings at the time of his injury were nothing like $950 per week net plus employer funded superannuation benefits. A substantial discount must be applied to that figure.

285. In those circumstances, having regard to the impact of past imponderables of the kind identified at paragraph [282] above, and applying the required layers of discounts to the plaintiff’s submitted calculations of $519,000, I consider the appropriate manner in which to compensate him for his past loss of earning capacity, including a component for superannuation, is to award him the rounded buffer amount of $200,000.

Future economic loss

288. The plaintiff claims the rounded sum of $796,000 for future loss of earning capacity, this being the projection of a weekly loss of $1650 per week over 13 years remaining working life (x 502.3) less 15 per cent to allow for the impact of possible adverse vicissitudes ($704,475), plus 13 per cent ($91,581) for employer funded superannuation.

289. In my view, the effects of the motorcycle accident have had an adverse effect on the plaintiff’s ability to earn an income and this is likely to cause him financial loss. This justifies an award for future loss of earning capacity: Paff v Speed (1961) 105 CLR 549, at p 566; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.

290. The defence submits that there should be no allowance for future economic loss or loss of earning capacity based on Dr Lim’s assessment. I do not accept that submission.

291. In my view, a more reasonable approach is to apply the continuum of the findings for past economic loss but to also apply a further discount for an additional layer of imponderables ranging from the plaintiff’s other underlying health issues that may well have progressed and which most probably would have had a further adverse impact on his future ability to exercise an earning capacity, including over a reduced period, and not to the age of 67 years as submitted.

292. Before undertaking that exercise it is necessary to point out that the submissions made on behalf of the plaintiff are problematic and overstated in several respects.

293. First, the projected sum of $1650 per week is not the net weekly sum but the gross weekly sum, as was identified in the evidence of Mr Sahade: T163.26 – T163.35. On the tax tables published in the Furzer Crestani Assessment Handbook, 2021, the net weekly equivalent of $1650 per week gross is approximately $1284 per week net. When the plaintiff’s submitted calculation is adjusted to correct that error, the corrected elements are respectively identified as being $548,274 and $71,275, totalling $619,477, or $620,000, in round figures. However, that is not the appropriate measure in this case.

294. In my assessment, it is most unlikely that, by the time of the hearing, the plaintiff would have been doing heavy work of the kind he was doing pre-accident. Whilst it is possible that he may have retained some kind of a residual earning capacity for light work of a sedentary nature if he succeeded in being vocationally re-trained and if such work was available, the likely commencement of that residual capacity remains unclear taking into account the plaintiff’s pre-accident wrist surgery.

295. Those imponderable factors indicate that an award of a discounted buffer is the most appropriate means by which to compensate the plaintiff for his future loss of earning capacity. In my view, the chance of those prospects coming to pass is about one-third: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, at pp 642 – 643.

296. Accordingly, and commensurately with that view, the plaintiff’s damages for future loss of earning capacity, including a component for superannuation, are assessed in the buffer amount of $150,000.

Future treatment expenses

297. The plaintiff makes a claim for a buffer of $20,000 to cover his likely future treatment expenses. That claim is based on the opinion of Dr Sun (Exhibit “L”, pp 605 – 609), which suggests the plaintiff will need medication, a 6 month supervised exercise programme, access to a heated pool and gym equipment, physiotherapy and occupational therapy assistance. The plaintiff also relies upon the opinion of Dr Parmegiani (Exhibit “L”, p 602), who considered that the plaintiff will need ongoing referral to a psychiatrist and antidepressant medication for 12 – 18 months.

298. In contrast, the defendant submits there should be no allowance for future treatment expenses. In my view the approach submitted by the defendant is not justified on the evidence.

299. Absent explanatory medical evidence that specifically attributes the future plaintiff’s treatment needs to the effects of the accident on 5 October 2011, it is not appropriate to simply award the plaintiff the entire buffer amount of $20,000 as claimed. Given the shortcomings in the explanatory medical evidence and my causation findings, precise calculations for future treatment are not possible. Although generally less preferable, I am therefore compelled to take more arbitrary approach to assessing this head of damage.

300. Doing the best I can to be fair to the plaintiff whilst not being unfair to the defendants, I assess the plaintiff’s damages for future treatment expenses in the buffer amount of $7500.

Past out-of-pocket expenses

301. The plaintiff makes a claim for past out-of-pocket expenses in the sum of $25,526.72: Exhibit “L”, pp 682 – 688.

302. The defence submissions on past out-of-pocket expenses rely upon an analysis within MFI “10” and MFI “11” to suggest the plaintiff’s out-of-pocket expenses should be assessed in the range $2553.70 to $4103.60. Those submissions identify a number of factors that demonstrate the claimed amount of $25,526.72 should be discounted to disallow items of claim that have no relationship to the effects of the subject accident.

303. I consider the approach argued by the defence in MFI “10” and MFI “11” to be artificially narrow and based on Dr Lim’s analysis which I have found to be unpersuasive.

304. Absent explanatory medical opinions that would permit a rational analysis of the claim for past out-of-pocket expenses, I consider the buffer approach I have taken to assessing future treatment expenses should also be applied to this head of damage.

305. I therefore assess the plaintiff’s claim for past out-of-pocket expenses in the reduced buffer amount of $12,500.

Summary of damages assessment

306. My assessment of the plaintiff’s damages is summarised as follows:

(a) Past domestic assistance	$5,000
(b) Past economic loss	$200,000
(c) Future economic loss	$150,000
(d) Future treatment expenses	$7,500
(e) Past out-of-pocket expenses	$12,500
Total	$375,000

Interest claim

307. The plaintiff seeks interest on his damages award. An award of interest seems inappropriate given the delays in bringing this litigation to a conclusion. At this stage I decline to ward interest on the plaintiff’s damages but grant liberty to apply. I will hear the parties on this issue if the claim for interest is maintained.

Disposition

308. The plaintiff is entitled to a verdict and judgment in his favour against the second defendant. The first defendant is entitled to a judgment in its favour against the plaintiff. The parties will have the opportunity to be heard as to costs.

Orders

309. I make the following orders:

1. Verdict and judgment for the first defendant against the plaintiff;

2. Verdict and judgment for the plaintiff against the second defendant in the amount of $375,000;

3. The application for interest on damages is refused at this stage;

4. I will hear the parties on the appropriate order for costs;

5. The exhibits may be returned;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

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Amendments

25 February 2022 - Typographical errors on cover sheet and paragraphs [20], [40] and [45]

Decision last updated: 25 February 2022