Brittliffe v Brown

[2022] NSWCA 263

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brittliffe v Brown [2022] NSWCA 263

Hearing dates:

9 August 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Before:

Meagher JA at [1];
Mitchelmore JA at [94];
Basten AJA at [95]

Decision:

Appeal dismissed with costs.

Catchwords:

TORTS – motor vehicle accident – personal injury – where appellant injured in single vehicle motorbike accident – whether primary judge erred in finding appellant was driver of motorbike at time of accident rather than pillion passenger

COSTS – offer of compromise – where joint offer made – where one offeror settles proceedings before trial and other offeror proceeds to judgment – where plaintiff’s outcome in each case no more favourable than offer – whether other offeror entitled to order for indemnity costs under UCPR r 42.15A

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), s 119

Uniform Civil Procedure Rules 2005 (NSW), r 42.15A

Cases Cited:

R v Baskerville [1916] 2 KB 658

RHG Mortgage Limited v Ianni [2016] NSWCA 270

Ridley v Whipp (1916) 22 CLR 381; [1916] HCA 76

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

Category:

Principal judgment

Parties:

Dylan Patrick Brittliffe (Appellant)
Maurice James Brown (First Respondent)
Insurance Australia Ltd t/as NRMA Insurance (Second Respondent)

Representation:

Counsel:
D Toomey SC with A Naylor (Appellant)
J Catsanos SC with B Jones (Second Respondent)

Solicitors:
Elias Gates & Associates (Appellant)
Moray & Agnew (Second Respondent)

File Number(s):

2021/339057

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

16 November 2021

Before:

Olsson SC DCJ

File Number(s):

2017/79765

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant Mr Brittliffe suffered serious injuries in a single vehicle motorbike accident. At the time of the accident, he was participating in a charity “poker run” organised by the Newcastle chapter of the Nomads Motorcycle Club of which he was a member. When the accident occurred, the riders participating in the ride had left the Brewery Hotel in Newcastle and were headed towards the Nomads club house.

Whilst negotiating a sweeping left-hand bend on the two-lane Pacific Highway at Islington in Newcastle, the bike experienced a left-sided capsize, and slid on its left side at a speed of 45kph before colliding with a concrete barrier in the centre of the road. The likely cause of the capsize was that the motorcycle came into contact with a piece of carpet on the roadway causing its front wheel to slide out to the right of the bike. The appellant was separated from the motorcycle and slid across the roadway at about the same speed and in the same direction as the bike, also striking the concrete barrier. The injuries he sustained included a compound right tibial fracture with open wound, a moderately displaced fracture of the right fibula, a heelbone fracture and a left little finger extensor tendon laceration and dislocation.

Mr Brittliffe brought proceedings in the District Court against Mr Maurice Brown, the first respondent in this Court, claiming damages for negligence on the basis that Mr Brown was the rider/driver and Mr Brittliffe the pillion passenger. Mr Brown was not represented at the hearing and did not give evidence, although a short statement given by him to a police officer at the scene of the accident and an unsigned statement provided later to a private investigator were in evidence. The second respondent, NRMA Insurance, was the compulsory third-party insurer of Mr Brittliffe’s motorcycle, and the third defendant in the proceedings below.

The sole issue before the primary judge (Olsson SC DCJ) was whether at the time of the accident Mr Brittliffe was the rider/driver of the motorbike rather than the pillion passenger. Her Honour found that Mr Brown was not the rider and that Mr Brittliffe was riding the motorcycle alone.

On appeal the dispositive issue remained whether the primary judge erred in so finding. The appellant also appealed from an order for indemnity costs in favour of the NRMA. That order was made on the basis of an offer of compromise made jointly by the NRMA and the Nominal Defendant, the second defendant below, in circumstances where the Nominal Defendant had separately settled the proceedings with the appellant prior to the hearing.

The Court (Meagher JA, Mitchelmore JA and Basten AJA agreeing) held, dismissing the appeal:

1. The independent eyewitness evidence overwhelmingly supported the primary judge’s finding that Mr Brittliffe was the rider of the motorbike and not the pillion passenger. That evidence included the transcript of an “000” emergency call made within five minutes of the accident by Mrs Clarke, who witnessed the accident from her vehicle which was travelling in the opposite direction. That transcript included her reporting that “one’s lost control and come off his bike, and he looks like he’s severely broken his leg”: at [11(iv)], [15], [33], [46]-[49] (Meagher JA); [94] (Mitchelmore JA); [95] (Basten AJA).

2. The primary judge’s finding was also wholly supported by the evidence of the three experts. Their unanimous evidence was that if there had been two persons on the bike, they would have separated from it at about the same time, at roughly the same velocity and in the same direction as the bike. Each would have hit the concrete barrier with considerable force and suffered a similar level of injuries and damage to outer clothing. It was also their evidence that the left little finger injury sustained by Mr Brittliffe was highly consistent with what would be expected of the rider of a bike with short handlebars in a left-sided capsize; and that any rider of the bike would have sustained such an injury, or at least abrasions down the palm and on the outside of the left hand: at [18]-[25], [32], [34], [42]-[45] (Meagher JA); [94] (Mitchelmore JA); [95] (Basten AJA).

3. That expert evidence fell to be considered in the light of the evidence of two police officers attending the scene, which was that Mr Brown had no injuries or damage to his clothing: at [16], [34], [52]-[55] (Meagher JA); [94] (Mitchelmore JA); [95] (Basten AJA).

4. Conversely, there was no contemporaneous evidence which referred to or described Mr Brittliffe as a pillion passenger which was not obviously hearsay and sourced to Mr Brown (in his statements to police or the investigator) or Mr Brittliffe or some bystander. Mr Brittliffe had an interest in not being seen to have been riding, in circumstances where his evidence was that he had been drinking. Mr Brown’s evidence that he slid across the roadway and collided into the concrete barrier with Mr Brittliffe could not have happened in light of the expert evidence and his being uninjured and his clothing undamaged. As such his evidence that he was riding the bike was to be rejected: at [13]-[14], [35]-[36], [59]-[62] (Meagher JA); [94] (Mitchelmore JA); [95] (Basten AJA).

5. Five other participants in the ride gave evidence that Mr Brown was the rider of the bike when it left the Brewery Hotel. Two were not at the accident scene; and the remaining three who were gave inconsistent accounts of the relative positions of Mr Brown and Mr Brittliffe on the roadway. Four were friends of Mr Brittliffe; and none had any contemporaneous record to assist their recollection. In those circumstances the primary judge was justified in rejecting their evidence: at [26]-[31], [37], [71]-[75] (Meagher JA); [94] (Mitchelmore JA); [95] (Basten AJA).

6. As to costs: The primary judge did not err in awarding indemnity costs. UCPR r 42.15A(2)(b)(i) relevantly entitles a “defendant” to indemnity costs from the day after an offer is made where the condition in r 42.15A(1) that the “offer is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains … judgment on the claim no more favourable to the plaintiff than the terms of the offer” is satisfied. With respect to the joint offer of compromise, that condition had been satisfied in relation to each of the Nominal Defendant and the NRMA. Accordingly, the NRMA was entitled to the order sought: at [84]-[92] (Meagher JA); [94] (Mitchelmore JA); [95] (Basten AJA).

Judgment

1. MEAGHER JA: In the late afternoon of 7 December 2013 the appellant Mr Brittliffe suffered serious injuries in a single vehicle motorbike accident. His Harley-Davidson V-Rod motorcycle was travelling in a north-westerly direction on the two-lane Pacific Highway at Islington, a suburb of Newcastle. In negotiating a sweeping left-hand bend (the roadway sloping slightly downwards in the direction of travel), the bike experienced a left-sided capsize, and slid on its left side at a speed of 45kph or faster towards, and collided with, a concrete barrier approximately 280mm in height and 550mm in width which divided the two north-westerly-bound lanes from the two lanes in the opposite direction.

2. The likely cause of the capsize was that the motorcycle came into contact with a piece of carpet on the roadway causing its front wheel to slide out to the right of the bike, producing the left-sided capsize. In that initial capsize event the rider’s left footpeg and left handgrip were heavily abraded, in each case as a result of contact with the road.

3. The appellant was then separated from the motorcycle and slid across the roadway at about the same speed and in the same direction as the bike, also striking the concrete barrier. The injuries he sustained were a compound right tibial fracture with open wound, a moderately displaced fracture of the right fibula, a heelbone fracture and a left little finger extensor tendon laceration and dislocation. He also sustained generalised abrasions and grazes to his arms and shoulders. Two photographs showing the road facing the north-westerly direction in which the appellant’s motorbike was travelling when it capsized are reproduced after [4] below.

The sole issue in the appeal

4. The sole issue in this appeal is whether the primary judge (Olsson SC DCJ) erred in finding, contrary to Mr Brittliffe’s case, that at the time of this accident he was the rider/driver of the motorbike rather than the pillion passenger, the motorbike being driven by the first respondent Mr Maurice Brown: Brittliffe v Brown (District Court (NSW), Olsson SC DCJ, 16 November 2021, unrep at [251]).

Google Street View (Exhibit 1)

Bailey photograph (part of Exhibit A)

5. The upper image is a Google Street View photograph which became Exhibit 1. The lower photograph was taken by one of the experts, Mr Bailey, and reproduced in his report which became Exhibit A.

6. Notwithstanding that J[251] commences “I am not satisfied that the plaintiff has discharged his onus of proof”, her Honour then states her finding as being “in favour of the first and third defendants”. In my view that finding is to be understood as a positive finding that Mr Brown was not in fact the rider and that Mr Brittliffe was riding the motorcycle alone, lost control and slid into the concrete barrier. That is the finding which her Honour in the immediately preceding paragraphs describes as having the support of the independent and expert evidence (J[249], [250]). It was agreed that if Mr Brittliffe was found to be a pillion passenger he was entitled to a verdict, damages having been agreed.

7. At the time of the accident, Mr Brittliffe was participating in a charity “poker run” organised by the Newcastle chapter of the Nomads Motorcycle Club of which he was a Sergeant at Arms, he having at an earlier time been the National President of that club. That event involved a large number of motorcycle riders, including members of the club, visiting five hotels in the Newcastle region, the last being the Brewery Hotel at Queens Wharf, Newcastle. It was a tradition of the club, followed on the day of the accident, that its highest-ranking members would lead the ride and take preference in parking spaces at each stop. The accident occurred a short time after the riders then remaining (the evidence suggests up to 50 and as few as 30) had left the Brewery Hotel and were headed towards the Nomads club house, about 5km from that hotel.

8. Mr Brittliffe brought proceedings in the District Court against Mr Maurice Brown claiming damages for negligence on the basis that Mr Brown was the rider/driver, having assumed that position when the ride left the Brewery Hotel. Mr Brown was not represented at the hearing and did not give evidence, although a statement given by him was tendered and notes of his interview by a private investigator, Mr Mayberry, were in evidence.

9. Mr Brittliffe also made an alternative claim alleging that an unidentified motor vehicle was responsible for depositing the carpet debris on the roadway. That claim was made against the Nominal Defendant, as second defendant in the proceedings below. That defendant was given leave to withdraw at the commencement of the hearing and did not thereafter participate.

10. The second respondent, NRMA Insurance, was the compulsory third-party insurer of Mr Brittliffe’s motorcycle, and the third defendant in the proceedings below. It was joined as a party to those proceedings on its application under s 119 of the Motor Accidents Compensation Act 1999 (NSW); and the extent of its participation was subject to the leave of the Court.

The material evidence relevant to that issue

11. The hearing proceeded over nine days in 2020. In considering their evidence, the primary judge dealt with the witnesses in the following groups (J[205]):

1. Mr Brittliffe and Mr Maurice Brown. The evidence of each was that Mr Brown was the rider and Mr Brittliffe the pillion passenger.

2. Participants in the ride (there were five witnesses). They were Brad and Wade Bowtell, Matthew Millner, James Quinnell and Adam Brown. Adam Brown was a motorcycle mechanic and not a member of the club. The Bowtell brothers’ group of friends included Mr Brittliffe. Each later became a member of the club. Mr Quinnell and Mr Brittliffe’s families grew up in the same country town, and Mr Millner was a friend of Brad Bowtell. Neither he nor Mr Quinnell was a member of the club at the time.

3. Independent witnesses, being three ambulance officers and two police officers (Senior Constable Brenda Smith and Probationary Constable Catts). Police, ambulance and hospital records relating to the accident were also in evidence.

4. Eyewitnesses, Mallory and James Clarke, who saw the accident from their vehicle which was travelling in a south-easterly direction in the right-hand lane. Mrs Clarke called the emergency telephone number, “000”, as did one of the ride participants Mr Pawley, who did not see the accident happen. In answer to the operator’s question “Tell me exactly what’s happened”, Mrs Clarke described the following event which she had observed within the previous 5 minutes or so: “A group of motorcycles were coming from the opposite direction and one’s lost control and come off his bike, and he looks like he’s severely broken his leg.” In answer to the rhetorical question “There’s only one down?” she responded “He is down. All the bikers have moved his bike off the road, but he is on the road because he can’t move.” Mr Clarke, who was driving, had pulled over to the left side of the road at a point which Mrs Clarke estimated at that time to be “about 10 metres away” from where Mr Brittliffe was on the roadway and on the other side of the concrete barrier. In his “000” call, Mr Pawley described Mr Brittliffe as having “skin off him everywhere… he’s bleeding pretty bad”.

5. Three experts, being Mr Grant Johnston, a forensic consulting engineer retained to give evidence in Mr Brittliffe’s case; Mr Christopher Hall, a mechanical engineer retained by the Nominal Defendant; and Mr William Bailey, a mechanical and biomedical engineer retained in the NRMA’s case. Mr Hall gave evidence notwithstanding that the Nominal Defendant had been given leave to withdraw because by that time he had participated in the writing of two joint expert reports, the second of which was dated 14 August 2020.

12. In the course of reviewing this evidence, the primary judge made the following observations.

13. First, Mr Brittliffe denied that he was the rider of the motorbike, but had very little memory of the accident event itself. Also he could not remember who arranged for Mr Brown to ride his bike, and he did not recall asking Mr Brown whether he had been drinking. As to the accident itself he recalled: “Maurice has turned to the left and the bike slid out from underneath us and I slid into the concrete barrier in the middle of the road”. He “had no idea” what happened to Mr Brown as the bike went down and could not say whether “they both came off at the same time or did one come off before the other” (J[31], [38]).

14. Secondly, Mr Brown’s unsigned statement given to the investigator included that he was riding the motorcycle. As the bike capsized Mr Brittliffe “slid across the road surface and collided with what looked like a stormwater culvert which was set into the gutter on the left side of the road. I was not injured so I went over to help him”. At the time of the accident, Mr Brown was wearing “jeans and most likely a leather vest” (J[51]). In a short statement to the police made in a notebook, he is recorded as having said “Ran over the carpet. The bike has slid and we have hit the median strip”.

15. Thirdly, Mr and Mrs Clarke were the only eyewitnesses. Mrs Clarke essentially gave her evidence within 5 minutes of the relevant event, and at that time had no interest other than to describe it as accurately as possible. The accident “literally happened in front of them” (J[224]). Her description of what happened is set out above at [11(iv)]. Although he came across the accident scene after the events described by Mrs Clarke, Mr Pawley’s “000” call included him saying that there had been a “bike accident” and “this person was on a motorcycle, he’s come off”, and the response “yep” to the question “One person on the bike?” (J[172]). Although he was called as a witness, Mr Pawley was not questioned to ascertain the source of that last statement and whether it was based on an assumption or something that he was told or that he had earlier observed.

16. Fourthly, the Probationary Constable Ms Catts spent about half an hour in the company of Mr Maurice Brown waiting for him to be breathalysed and “did not observe any injuries on him; he did not say anything to her about being injured; there was nothing unusual or untoward about his clothing other than that it was motorcycle club colours; there was no damage to his clothing” (J[154]). She was not cross-examined (J[155]). Senior Constable Smith took the short statement from Mr Brown.

17. Fifthly, the appellant was taken by ambulance from the accident scene and admitted to the emergency department at John Hunter Hospital at 5:42pm. With one exception the ambulance and hospital records refer to an accident involving Mr Brittliffe as “pillion passenger” and he as having fallen “off the back of a motorcycle”. However the hospital notes dated 7 December 2013 at 6:40pm and written by a social worker included: “Brief history of event: Dylan stated he was driving motorbike, came off at 50 kms/hr. Had helmet and long sleeved jumper on”.

18. Sixthly, the experts agreed as to the dynamics of the accident (J[195]), and substantially agreed as to what might have happened if there had been a rider and a pillion passenger on the bike. The dynamics of the accident involved the bike capsizing to its left, resulting in the rider’s left footpeg and frame of the bike including the left handgrip contacting the roadway. The bike then slid on its left side on a tangential path towards the central concrete barrier. Whilst on its left side the lower part of the bike collided with the barrier. The bike had then “flipped” onto its right side during contact with the barrier, causing further damage to that side of the bike. The estimated speed when the bike hit the barrier was “in the range of 45 kilometres or faster” (J[195]).

12. If there were two persons on the bike, Mr Hall, Mr Johnston and Mr Bailey agreed that those persons would have separated from it at about the same time and at roughly the same velocity and travelling in the same direction as the motorbike, although there may have been a slight difference in the angle at which each collided with the concrete barrier. Mr Bailey and Mr Hall agreed that the rider and pillion passenger would have essentially travelled in the same direction and struck the concrete barrier at speed and with considerable force, each suffering a similar level of injuries.

13. Mr Johnston agreed “conceptionally” (sic), but suggested that if the rider and passenger separated at slightly different degrees of angulation it was possible that the rider could have slid a greater distance, thereby reducing his velocity at the time of impact with the barrier. (This might have occurred if the rider came off the bike to the left of the pillion passenger in the direction in which the bike was travelling. For this to have made a difference to the distance travelled by the rider, and therefore the velocity at which he might have collided with the barrier, depended in part on which of the north-westerly lanes the bike was travelling in and the angle at which the rider was separated from the bike. Ms Catts’ evidence and the relevant entry in the Computerised Operational Policing System (COPS) database suggested that the carpet square was found in the left-hand lane in the direction of the bike’s travel.)

14. Mr Johnston also accepted that if this had occurred, it would have resulted in significant damage to the rider’s outer clothing and abrasive injuries, each of which would have been obvious to any lay observer. Messrs Hall and Bailey agreed that there might be slight differences in the angulation at which the rider and passenger struck the barrier, but maintained that the rider would have suffered significant “muscular skeletal” injuries.

15. In relation to the injury to Mr Brittliffe’s left little finger which included a laceration and open dislocation, Messrs Hall and Bailey agreed that the injury was highly consistent with what would be expected of the rider of the bike in a left-sided capsize; and given the manner in which the handlebar was constructed on Mr Brittliffe’s bike, such an injury was unlikely to have been sustained in any interaction with the bike and the road as a pillion passenger.

16. Mr Hall described the mechanics of that injury to the left hand of a rider of a bike with short handlebars in the following passage which was agreed in by Mr Bailey:

… as this motorcycle goes onto its left side, … it happens so quickly. In most cases, a rider cannot get their hand or cannot react quickly enough to let go of the handle bar. And so as the bike rolls over and it then hits the ground the left little finger is exposed to entrapment as it's wrapped around the handle bar holding on. And as the rider is trying to let go and being dragged away, because by that stage his leg is in contact and hip is starting to contact the ground. And so as the rider is dragged away his little finger can become entrapped between the handle bar and the road, and then it's drawn away. And so it's very much the laceration of that extensor tendon that occurs in such instances. And if it really gets trapped then it can lead to a detachment, et cetera. So that is - when I look at that little finger injury, I see that being highly consistent with what I would expect a rider to suffer from when we're dealing with handle bars that do not have that long extender out from the handle.

24. Mr Johnston agreed that a “typical type injury to the left finger” could be from that mechanism. He also provided an alternative theory as to how the injury might possibly have been sustained if Mr Brittliffe was in the position of a pillion passenger. Mr Hall rejected that alternative hypothesis on the basis that it might explain the laceration but “to get a fracture is highly unlikely”. Mr Bailey agreed.

25. Furthermore, and most significantly, the three experts agreed that if Mr Brown was the rider of the bike it was to be expected that he would have suffered an injury to his left little finger or at least abrasions down the palm and outside of his left hand caused by simultaneous contact of his left hand and left handlebar with the road. Mr Brittliffe suffered the former injury. Mr Brown suffered neither. As Mr Hall explained, as rider Mr Brown would have suffered the sort of injury to the left little finger suffered by Mr Brittliffe except where:

… he’s quick enough to get his hand off - as I said, a lot of riders aren’t able to do it quickly enough, but some riders can. So absence of injury - but I would expect something around the hand, in the fall. So if - if - if the rider gets his hand off the handlebar, it would normally expose it to break his fall, and then you would expect some abrasions down on the palm of the hand and on the - on the outside of the hand.

26. Finally, five participants in the ride gave evidence of seeing Mr Brittliffe get on the back of his bike. Three of those witnesses – Adam Brown, Bradley Bowtell and Matthew Millner – agreed that they were first asked to recall the events on the day of the accident in March 2020, more than six years later. James Quinnell and Wade Bowtell did not say when they were first asked to recall those events. However, it is plain that none had any contemporaneous record which might have assisted his recollection.

27. Each gave evidence that Mr Maurice Brown was the rider of Mr Brittliffe’s bike when it left the Brewery Hotel. All but one of the witnesses gave a description which was taken to identify him. The descriptions were “an old seasoned bikie”; a “pretty grubby looking bikie” (Adam Brown); a “bigger guy with a white beard” (Matthew Millner); a “larger fellow with a white beard” (Bradley Bowtell); a person with “a white beard and grey hair, an older fellow” (Wade Bowtell). Mr Quinnell’s evidence was that “Maurice Brown was riding the motorcycle”, and that he had “only come to know him subsequently”.

28. Neither Mr Adam Brown nor Mr Quinnell rode past the accident scene. The remaining three witnesses did, and gave the following evidence as to what they saw in relation to Mr Brittliffe and Mr Brown. Mr Wade Bowtell’s evidence included: “I looked over, seen Dylan with the white bike and the old man on the side of the road laying down” and “the other fellow with the white beard on the road… he was pretty close to Dylan as well, on the ground next to the bike”, and “Dylan didn’t look too well” and the fellow with the beard was “in about the same state”.

29. Mr Bradley Bowtell’s evidence included the following statements, each to the same effect: “I noticed the white bike … I then noticed Dylan was on the ground [and] Maurice as well”; “not only was Dylan on the road but the fellow [I] knew as Maurice was still lying on the road as well… a few metres ahead of him [in the direction of the bike’s travel]”; and “Dylan was lying [on the roadway] but further up” and “Maurice was further up again beyond the bike”.

30. Mr Matthew Millner’s evidence was that as he rode past, Dylan was “laying on the road in - near the gutter… [and] it looked like [Mr Brown] was sitting on the gutter…on the side of the road, on the gutter sort of thing”. In cross-examination he said the “gutter” was “more on the right side” of the road, probably referring to the “middle of the road”.

31. In her concluding observations the primary judge, describing this evidence as a whole, said that the witnesses “were not able to recall anything of the day’s ride except that they all saw (and remembered) [Mr Brittliffe] getting on the back of a bike at the Brewery” (J[246]).

The factual question for the primary judge

32. Ultimately, the question for her Honour was whether there were two people on the bike at the time it capsized. There is no conflict in the evidence as to the fact that the bike did capsize and slide into the central concrete barrier and that at least one person was separated from the bike and slid at a velocity of about 45kph and collided with the concrete barrier at about the same time as the bike.

33. The incontrovertible eyewitness account given within a few minutes of the relevant event was that only one person came off the bike and slammed into the barrier. If there were two people on the bike, each of them would have been separated from it and seen from Mrs Clarke’s viewpoint. The cross-examination did not suggest otherwise, nor could it have. Nor was it suggested to Mrs Clarke that she could have been mistaken in the description that she gave to the “000” operator. The cross-examiner obtained her agreement that if she was looking directly down the line of the motorcycle as it approached her, there was a possibility that her view of a pillion passenger was obscured. She accepted that might have been so. However, that question does not address the events which she saw as they happened, which ‘revealed’ that there was only one person on the bike.

34. The primary judge then had to consider the balance of the evidence in the light of that eyewitness account. The expert evidence was wholly consistent with it. If there had been two people on the bike, each would have sustained some injuries. The evidence to that effect was incontrovertible. Mr Brittliffe sustained injuries which were wholly consistent with his having been the rider/driver of the bike. Mr Brown sustained no injuries or damage to his clothing. That was the unchallenged evidence of Constable Catts and consistent with Mr Brown’s assertion. Had Mr Brown been the rider/driver of the bike, he would have at least sustained injuries to his left hand and palm and significant abrasions to his upper body. All of the experts agreed as to that.

35. There was no contemporaneous evidence which referred to or described Mr Brittliffe as a pillion passenger which was not obviously hearsay and sourced to Mr Brown or Mr Brittliffe or some bystander. Mr Brown’s statement to the police and the ambulance and hospital records which record that being the ‘fact’ do not answer that description. There was also one hospital record which recorded Mr Brittliffe telling a social worker that he was riding the bike when it capsized. That statement was made just after he was admitted to hospital.

36. What, then, was the primary judge to do with the evidence of Mr Brittliffe, Mr Brown and each of the five participants in the poker run ride? Mr Brittliffe had an obvious interest in not being seen to have been riding the motorbike at the time of the accident. He had been drinking and considered that he had drunk “too much” and “shouldn’t have been riding” his own bike; that being in circumstances where he had previously been convicted of a drink driving charge, albeit 10 years earlier. Mr Brown, for whatever reason, identified himself as the rider of the bike to the police officers at the scene of the accident. Thereafter he did not participate in or defend the proceedings. His statement to the police suggests that he slid across the roadway and collided into the barrier with Mr Brittliffe. In the light of the expert evidence and his being uninjured and his clothing undamaged, that could not have occurred. It was also contrary to Mrs Clarke’s evidence. Accordingly, his evidence that he was riding the bike was to be rejected.

37. The position is the same in relation to each of the five participants in the ride. Their evidence was inconsistent with incontrovertible facts and could not be explained other than as having been fabricated. It is not necessary to search for reasons or speculate why they did so. All of them other than Mr Adam Brown were friends of Mr Brittliffe, and Mr Brown’s connection was a business connection with the motorcycle club as a motorcycle mechanic.

The primary judge’s reasoning

38. Turning to the primary judge’s reasons, her Honour’s findings and conclusion follow the analysis set out above and are summarised in her conclusions at J[246]-[252]. The independent evidence of Mr and Mrs Clarke supported a finding that Mr Brown was not the rider and that Mr Brittliffe was riding the motorcycle when it capsized (J[249]). The expert evidence supported that conclusion (J[250]). The evidence of the five motorcyclists “who were not able to recall anything of the day’s ride except that they all saw (and remembered) [Mr Brittliffe] getting on the back of a bike at the Brewery… is not credible, particularly given the varying versions they gave of the aftermath of the accident” (J[246]). (Those versions are inconsistent with the evidence that Mr Maurice Brown suffered no injuries or damage to his clothing.) Her Honour’s broad description of their evidence as giving the “impression” that they had discussed between themselves the evidence they might give was consistent with the substance of their evidence in the respects identified by her Honour at J[246] and [248].

The grounds of appeal

39. It remains necessary to consider the 20 grounds of appeal in the further amended notice of appeal. Nineteen of those grounds are directed to her Honour’s assessment of the evidence and witnesses in reaching her conclusion that Mr Brittliffe was the rider of the motorbike. One of those grounds (ground 2) is not pressed. The remaining ground 18 challenges the primary judge’s order that Mr Brittliffe pay the NRMA’s costs of the proceeding incurred after 15 June 2020 on an indemnity basis. That order was made in accordance with r 42.15A(2)(b)(i) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

40. The most convenient way of addressing these grounds is to do so by reference to the evidence and findings or conclusions of the primary judge to which they relate. As should already be apparent, most of them can be dealt with fairly shortly. Mrs Clarke’s evidence as to what she saw and described in making the “000” call is not and could not be challenged. Nor is Ms Catts’ evidence as to Mr Brown not having suffered any injuries or damage to his clothing challenged. Nor could it be. And there is no challenge to the consensus in the expert evidence concerning the dynamics of the accident or as to the injuries that would have been suffered by any rider of the bike. Mr Brittliffe suffered such injuries, and Mr Brown did not.

41. It is convenient to start with the expert evidence.

Expert evidence (grounds 5, 6, 6A and 6B)

42. These grounds are:

1. Ground 5: The primary judge failed to take into account that the liability experts had agreed it was possible for one of the persons on the motorcycle to have been seriously injured without the other sustaining any or any significant injuries;

2. Ground 6: The primary judge failed to take into account the evidence of Mr Hall that Mr Brittliffe’s left little finger laceration may have been caused as a result of contact with the roadway and without any interaction with the left handlebar;

3. Ground 6A: The primary judge failed adequately to address the expert evidence with respect to Mr Brittliffe’s injuries being consistent with him having been the pillion passenger;

4. Ground 6B: The primary judge erred by misconstruing the expert evidence with respect to Mr Brittliffe’s left heel or calcaneal fracture injury.

43. As to ground 5: This ground misstates the effect of the evidence, which was that a person riding the motorbike would at least have suffered one or other of the left little finger injuries described by Mr Hall and extracted at [23] and [25] above. Her Honour addressed that evidence and concluded that the expert evidence was consistent with Mr Brown not being the rider of the bike and with Mr Brittliffe being the rider of the bike. That was so because Mr Brown did not have any injuries in circumstances where the expert evidence was that at least he would have suffered the injuries in [25] above; and because Mr Brittliffe had suffered the left little finger injuries in [23] above which the experts agreed were wholly consistent with his having been the rider of a bike with short handlebars.

44. As to ground 6: It was not relevant to speculate as to whether Mr Brittliffe’s injuries could have been sustained as a pillion passenger. The critical conclusion was that a rider of the motorbike in a left-sided capsize would have sustained the injuries described by Mr Hall in [23] or [25] above. Mr Brown did not sustain either of those injuries. At the same time, Mr Brittliffe’s injuries were consistent with those which would have been suffered by a rider who was not quick enough to take the action described by Mr Hall in [25] above.

45. As to grounds 6A and 6B: Neither of these grounds addresses a factual issue which it was necessary for the primary judge to resolve. In circumstances where there was no contention that Mr Brittliffe could not have suffered the injuries he sustained, including to his left heel, if he was the rider of the bike, these factual issues did not arise. The critical question was whether if Mr Brown was the rider of the bike he could have escaped without any injuries whatsoever. The unanimous expert evidence answered that question in the negative.

Evidence of the eyewitnesses (grounds 4 and 17A)

46. These grounds are:

1. Ground 4: The primary judge erred in failing to take into account the concession by Mr Clarke that his statement dated 12 August 2017 reflected a recollection that was or could have been “inaccurate and poor”.

2. Ground 17A: The primary judge erred in failing to address a number of submissions impugning the reliability of Mrs Clarke’s evidence. Those submissions suggest inconsistencies between her statement dated 12 August 2017 and her oral evidence as to whether there was only one rider on the motorbike when it capsized.

47. As to ground 4: This ground addresses a question which is far from the centre of the factual dispute to which Mr Clarke’s evidence was relevant. His oral evidence showed that he had little current recall of the relevant events. He maintained that at the time he made his statement he was attempting accurately to give his recollection of those events. With the benefit of the transcript of the “000” call, the primary judge was in a position to assess the likely accuracy of Mr Clarke’s statement, which was given three and a half years after the event. And that is how her Honour approached the matter in relation to Mrs Clarke’s evidence, observing:

[226]   The transcript of the call speaks for itself. Mrs Clarke clearly described the scene – namely that a man (one man) had come off his motorcycle and damaged his leg. She was cross examined strenuously about whether it was possible that another person was involved, to the point where she appropriately conceded that anything was possible.

[227]   She gave a record of the accident to an insurance investigator a considerable time later. It was broadly consistent with the content of the triple zero call. It was put to her that she had discussed her evidence with her husband and she candidly agreed that they had probably spoken about it.

48. This ground does not address any of these relevant questions. The particular matter to which the ground is directed is the time at which the accident happened, and the fact that Mr Clarke’s statement mistook that time as being in the late morning rather than early evening. The fact of that error of recollection three and a half years after the accident was of no moment in circumstances where what happened was described and recorded in the “000” transcript.

49. As to ground 17A: This ground contends that the primary judge should have addressed submissions impugning the reliability of Mrs Clarke’s evidence to the extent that there were inconsistencies between her statement dated 12 August 2017 and her oral evidence in chief. As with Mr Clarke, she accepted that her recollection at the time of the trial was not as good as her recollection at the time she made her statement. At that earlier time, she did not have the benefit of the “000” transcript. The critical question for the primary judge was whether any of the evidence in her statement which went beyond that in the “000” transcript was material and could be relied on. This ground does not identify any such evidence.

Evidence of Mr Pawley (ground 3)

50. Ground 3 contends that the primary judge erred in failing to take into account Mr Pawley’s evidence in chief that he did not know how many persons were on the motorcycle at the time of the accident.

51. The premise of this ground is wrong. The primary judge noted that Mr Pawley “did not see the accident happen but came across the scene afterwards” (J[171]). Mr Pawley’s exchanges with the “000” operator included his answer that there was only one person on the bike. He also described Mr Brittliffe as having “skin off him everywhere” and “bleeding pretty bad”. The former statement was, as the primary judge observed at J[229], not only “contemporaneous but also consistent with that of the Clarkes”. That was sufficient for his evidence to have some probative value, especially in circumstances where Mr Pawley was not asked in chief what the basis was for his answer that there had been only one person on the bike. He may have been in a position to give that evidence having regard to what he saw whilst leaving the Brewery Hotel or in the course of the ride from that point.

Police evidence (ground 14)

52. Ground 14 contends that the primary judge erred in treating the evidence of the police witnesses as amounting to a positive assertion that there was no damage to Mr Brown’s clothing.

53. The primary judge’s treatment of this evidence is at J[142]-[155]. Senior Constable Smith’s evidence was that Mr Brown did not report any injuries that he had suffered to her; that if someone had reported that they had suffered injuries that would have been recorded in her notebook and was not; and that if she had observed any injury herself she would have asked about it and recorded that in the COPS report. There is no such record of any injury to Mr Brown.

54. Ms Catts spent about half an hour standing with Mr Maurice Brown. Her evidence was that she did not observe anything in terms of any injuries on Mr Brown or see anything untoward or unusual about his clothing (J[241]-[242]). She recalled he was wearing motorcycle club colours.

55. The evidence of these two police witnesses was evidence upon which the primary judge could find, as her Honour did, that neither had “observed any injuries to Mr Brown nor any damaged clothing and he certainly made no complaint in that regard” (J[243]). The ground is not made out.

Independent witnesses (ground 17B)

56. Ground 17B contends that the primary judge erred in finding that “all of the independent evidence” supported a finding that Mr Brown was not the rider and that Mr Brittliffe was riding the motorcycle on his own (J[249]).

57. The particular “independent evidence” to which this ground refers is not clear. The evidence of independent witnesses to which the primary judge refers is in [15]-[17] above. It includes the evidence of Mr Ryan and Mr Krueger-Davis, two of the three ambulance officers. Their evidence is not summarised above. Mr Ryan’s evidence was that although he had recorded in the ambulance case summary that the accident involving Mr Brittliffe was “pillion off back of cycle”, he was not the source of that information (J[129]). Mr Krueger-Davis explained that when he was completing the ambulance case sheet he described Mr Brittliffe as a “pillion passenger” because that was what he was told by third parties (J[136], [139]).

58. This evidence and the evidence dealt with above, especially the eyewitness accounts, overwhelmingly supported the finding that Mr Brown was not and that Mr Brittliffe was the rider of the motorbike. The primary judge did not err in making that finding.

Mr Brown’s statement to insurance investigator (ground 13A)

59. Ground 13A is that the primary judge did not provide any or any adequate reasons for why Mr Brown’s unsigned statement to the investigator did not corroborate Mr Brittliffe’s evidence that Mr Brown was the rider of the motorcycle.

60. The short answer is that the primary judge did not need to say or give any reason for proceeding on the basis that Mr Brittliffe’s evidence was not corroborated by an unsworn statement of Mr Brown.

61. As Isaacs J observed in Ridley v Whipp (1916) 22 CLR 381 at 392; [1916] HCA 76, referring to and accepting the observations of Lord Reading CJ in R v Baskerville [1916] 2 KB 658 at 667, “…corroboration must be by independent testimony, and … if it be required to implicate a person in a given act, the independent testimony must be such as of its own force to connect or tend to connect him with the act”.

62. Mr Brown was not relevantly independent and his evidence was not sworn or even the subject of a signed statement. In circumstances where there was evidence of independent witnesses who saw the accident and were able to give evidence of what they saw, which included that there was only one person on the motorbike at the time it capsized, there was no sensible basis for the primary judge to start from the position that Mr Brown’s evidence should be treated as reliable or a source of corroboration of Mr Brittliffe’s evidence.

Mr Brown’s police notebook statement (grounds 1 and 15)

63. These grounds are:

1. Ground 1: The primary judge erred in failing to take any or any adequate account of Mr Brown’s contemporaneous police notebook statement to Senior Constable Smith.

2. Ground 15: The primary judge erred in failing to address the “overwhelming unlikelihood” that Mr Brown had conspired with Mr Brittliffe to provide a false account to police in the very short time it took them to arrive at the scene.

64. As to ground 1: The primary judge took account of the statement taken by Senior Constable Smith from Mr Brown at the scene of the accident and gave it little or no weight, in circumstances where it was not sworn and there was overwhelming evidence that the position was other than stated.

65. As to ground 15: The premise of this ground is irrelevant and not made out. It was not for the primary judge to speculate as to how and why Mr Brown came forward to say he was riding Mr Brittliffe’s bike, and whether that happened as a spontaneous response to the event of the accident or was the outcome of a planned response to such an event. It was not suggested by the evidence that it could not have occurred on either basis. Her Honour’s task was to determine whether the appellant had proved on the balance of probabilities that he was only a pillion passenger on his motorbike at the time of the accident.

Hospital notes (ground 16)

66. Ground 16 contends that the primary judge erred in giving little weight to the hospital notes in which Mr Brittliffe was recorded as reporting himself to have been the pillion passenger.

67. Having regard to the eyewitness evidence, the evidence as to the absence of any injury to Mr Brown, and the expert evidence, the primary judge was wholly justified in giving little or no weight to self-serving statements of Mr Brittliffe and perhaps others to the hospital staff, particularly in circumstances where Mr Brown had already identified himself to the police as the rider.

Mr Brittliffe’s credit (grounds 11 and 17)

68. These grounds are:

1. Ground 11: To the extent that the appellant’s evidence was found not to be credible on the basis of poor memory, the primary judge erred by failing to take account of the amnesiac effects of drugs administered to him at the scene of the accident and misconstruing the evidence as to the quality of his memory.

2. Ground 17: The primary judge erred in failing to take account of the fact that the appellant had only lodged a claim form with the compulsory third-party insurer a considerable time after the accident.

69. As to ground 11: The primary judge’s observation at J[219] that she would only accept Mr Brittliffe’s evidence of the accident to the extent it was corroborated by others is really beside the point in this case. The reality was that the eyewitness and objective evidence established that what Mr Brittliffe was saying was not true. In that context, his version of events was not going to be saved by any so-called “corroborative evidence” of Mr Maurice Brown or any others. This ground does not address any material issue and could have no bearing on the outcome of the appeal.

70. As to ground 17: This ground also addresses a question which is far removed from any relevant issue in the appeal.

Evidence of the five participants in the ride (grounds 8, 9, 10 and 13)

71. These grounds are:

1. Ground 8: The primary judge erred in finding that the lay witnesses had discussed the incident and agreed that Mr Brittliffe was the pillion passenger, and denied Mr Brittliffe procedural fairness in doing so.

2. Ground 9: The primary judge erred in failing to give any or any adequate reasons for rejecting the evidence of the other motorcyclists as a “job lot”.

3. Ground 10: The primary judge erred in failing to give any or any adequate reasons for her apparently contradictory findings with respect to the credibility of Adam Brown and in rejecting his evidence.

4. Ground 13: The primary judge erred in assessing the evidence of these five witnesses by regarding it as unlikely that they would have recalled events at the Brewery Hotel involving particular riders and passengers in circumstances where those events only became significant after the happening of the accident.

72. As to ground 8: The finding at J[248] which is challenged is not the finding which Mr Brittliffe must overturn, namely that he was the rider of the motorbike. For reasons already given, that finding was established by the eyewitness and objective evidence, with the consequence that the evidence of these witnesses could not be correct and accordingly must have been the result of fabrication. As has already been observed, it is not necessary for this Court, and was not necessary for her Honour, to speculate as to what was done to produce that result.

73. As to ground 9: This ground is rejected. Her Honour did give reasons for rejecting the evidence of these five witnesses. It was contradicted by the eyewitness and independent evidence as well as the expert evidence. For that reason, the evidence of each witness was to be rejected, and in that sense alone was the evidence dealt with as a “job lot” (to adopt language used in the ground but not by the primary judge).

74. As to ground 10: Her Honour did not need to give separate reasons for rejecting the evidence of Adam Brown on the question whether Mr Brittliffe was a pillion passenger on his bike. His evidence in that respect was rejected because it was not consistent with the facts as established by the other evidence. That was obvious.

75. As to ground 13: Her Honour was justified in ‘wondering’ why these witnesses would have remembered these events in circumstances where their significance was not apparent at the time they occurred. That said, this ground does not address the material and dispositive reasoning of the primary judge which focussed on the eyewitness and expert evidence.

Jones v Dunkel inferences (ground 12)

76. Ground 12 contends that the primary judge erred in drawing Jones v Dunkel inferences against Mr Brittliffe at J[216], [218], [238] and [245] in circumstances where it was neither known that there were available witnesses to the accident itself, that they were capable of being found or that they could properly be described as being in Mr Brittliffe’s “camp”.

77. These four paragraphs of the primary judge’s reasons refer to the absence of witnesses or evidence. However, none records the drawing of a Jones v Dunkel inference and her Honour’s reasoning did not ultimately depend on the drawing of any such inferences. That remains the position notwithstanding her Honour’s (unnecessary) reference at J[245] to this Court’s decision in RHG Mortgage Limited v Ianni [2016] NSWCA 270 at [160].

78. As has already been observed, her Honour’s reasoning started with the eyewitness and other independent evidence and expert evidence, which supported the finding that Mr Brown was not the rider/driver of the motorbike. No error in relation to the drawing of any (unspecified) Jones v Dunkel inference could influence or affect the correctness of that finding.

Constructive failure to exercise jurisdiction (ground 7)

79. Ground 7 contends that the primary judge erred by constructively failing to exercise jurisdiction in that her Honour regularly or persistently failed to take into account factual matters and submissions favouring Mr Brittliffe.

80. This ground is completely misconceived. As the High Court (Gleeson CJ, McHugh and Gummow JJ) observed in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [63], albeit in relation to a judge of the Supreme Court, “[t]o suggest that a trial judge has not properly considered a party's case is a serious charge. Such a suggestion should be accepted only when the record of the trial or other evidence persuasively suggests that the judge failed to discharge that paramount judicial duty”.

81. The present case is far removed from that state of affairs. The primary judge has addressed all of the relevant evidence and having done so engaged in a process of reasoning which was wholly justified by reference to that evidence, as the discussion earlier in these reasons shows (see [32]-[38] above).

82. For these reasons, the grounds challenging the entry of judgment in favour of the first and third defendants must be rejected, and the appeal against those orders dismissed.

83. There remains the appeal against the indemnity costs order.

Costs (ground 18)

84. Ground 18 contends that the primary judge erred in the proper construction of UCPR r 42.15A by applying the rule and ordering indemnity costs in favour of only the third defendant in circumstances where the offer of compromise had been made jointly by the second and third defendants, and the second defendant had separately settled with the plaintiff prior to the hearing.

85. Rule 42.15A provides:

(1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim no more favourable to the plaintiff than the terms of the offer.

(2) Unless the court orders otherwise--

(a) the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and

(b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis--

(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.

86. The NRMA and Nominal Defendant made a joint offer of compromise to Mr Brittliffe on 15 June 2020, which conformed with the requirements of UCPR r 20.26. That offer was expressed to expire after 7 days, and proposed a verdict for the second and third defendants with each party to bear his and its own costs. It was not accepted.

87. On 29 June 2020 and by consent the Nominal Defendant withdrew from the proceedings, on the basis that there would be judgment for it with no order as to costs. That judgment, when entered, would in respect of the Nominal Defendant be on terms “no less favourable” to it than the terms of the joint offer. That judgment was entered on 16 November 2021 and accordingly on that day r 42.15A(1) was satisfied with respect to the joint offer of compromise in relation to the Nominal Defendant as one of the joint offerors.

88. On 16 November 2021, in accordance with her Honour’s reasons, judgment was entered for the third defendant with costs. That judgment also satisfied r 42.15A(1) with respect to the joint offer of compromise in relation to the NRMA as the other joint offeror.

89. On that date r 42.15A(1) was satisfied in relation to the offer of compromise, enlivening r 42.15A(2)(b)(i).

90. After the delivery of her judgment in favour of the NRMA, the NRMA sought an indemnity costs order in reliance on the joint offer of compromise. The primary judge made that order on 10 December 2021. In her reasons for judgment delivered on that day, her Honour took the view that UCPR r 42.15A does not preclude an order being made in favour of one defendant in circumstances where an offer of compromise has been made by two jointly, provided r 42.15A(1) was satisfied in relation to that offeror.

91. Mr Brittliffe appeals from that order. That appeal (made by ground 18) should be dismissed for reason that r 42.15A(1) was satisfied treating the offer as a joint offer. The analysis leading to that result is given above. That makes it unnecessary to consider the argument accepted by the primary judge, that the offer could be construed as made severally by the offerors so that it operated in relation to them severally if satisfied in relation to the relevant offeror.

92. Whilst the outcome that the joint offer is treated as satisfied results in an order for costs on an indemnity basis in favour of the NRMA from 16 June 2020, it would not necessarily produce the same outcome in respect of the Nominal Defendant, it having separately and later agreed to the compromise of the proceedings against it on terms which led to the order made by consent on 16 November 2021. Rule 42.15A(2)(b) applies unless the Court “otherwise orders” and those circumstances would obviously be material to the question whether that discretion should be exercised in such a case.

Conclusion

93. In the result, the appeal should be dismissed with costs.

94. MITCHELMORE JA: I agree with Meagher JA.

95. BASTEN AJA: I agree with Meagher JA.

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Decision last updated: 14 December 2022