Collie v Motor Accident Commission No. DCCIV-96-540 Judgment No. D77

COLLIE v MOTOR ACCIDENT COMMISSION
[1999] SADC 77

Judge Muecke
Civil

In this action the plaintiff claims damages for injuries he suffered in an accident when his motorcycle crashed at about 6pm on Saturday 15 May 1993 near a railway crossing at the entrance to Kadina in the mid-north of South Australia. I have referred to the motorcycle involved as the plaintiff’s motorcycle although at the time of the accident the motorcycle was not registered in the plaintiff’s name. The plaintiff said that he had purchased the motorcycle from the registered owner but the registration had not been transferred to him at the time of the accident. However, the plaintiff regarded the motorcycle as his, it was referred to as the plaintiff’s motorcycle throughout the trial, and I shall refer to it in that way in these reasons.
As one approaches Kadina on the main sealed bitumen highway from Adelaide, one comes to a right-hand sweeping bend, after which there is a short straight portion of road, and then one comes to a sweeping left-hand bend before entering Kadina on a more or less straight section of road. At the time of the accident, in the short straight portion of road in the middle of the S-bend, a railway line crossed the highway. An aerial photograph of the accident site as it was at the time of the plaintiff’s accident shows what I have just described, which is a not uncommon feature of railway crossings in country areas in South Australia. The design is similar to a chicane in a race-track, the purpose being to slow vehicles using the roadway in that area. There was an 80 kilometres per hour speed restriction sign erected before the right-hand sweeping bend approaching Kadina, and there was a 60 kilometres per hour speed restriction sign just after the railway line. That sign also announced that the road user was about to enter the township of Kadina.
By summons dated 3 May 1996 the plaintiff sued John William Atherton (“Mr Atherton”) as defendant and alleged that Mr Atherton was the driver of a Harley Davidson motorcycle whilst he, the plaintiff, was a pillion passenger on that motorcycle. In the Statement of Claim the plaintiff alleged that the “motorcycle was travelling north along the main road into Kadina...when at approximately two kilometres from Kadina whilst approaching a railway crossing the defendant lost control of the motorcycle, causing the plaintiff to be thrown from the motorcycle”. No greater detail of the accident was given in the Statement of Claim.
At some time prior to trial the Motor Accident Commission was joined as a defendant to the action pursuant to s125a of the Motor Vehicles Act, 1959. I was told that (pursuant to sub-section (3)(b) of s125a) the insured person Mr Atherton ceased to be a party to the action.
The case the plaintiff presented at trial was that on Saturday 15 May 1993 (which was the Saturday of the Adelaide Cup long weekend in 1993) he set out from Adelaide on his Harley Davidson motorcycle with about 30 to 40 other men who were also riding motorcycles. All were members, nominees, or associates of the Gypsy Jokers Motorcycle Club Incorporated (“Gypsy Jokers”), an association incorporated under the Associations Incorporation Act, 1985 on and from 24 June 1992. The group set out at some time during the morning of the day of the accident from the club’s premises at Wingfield on what was referred to throughout the trial as a “run” from Adelaide to Kadina (or at least to the area of the Copper Triangle comprising the townships of Kadina, Wallaroo and Moonta). It was the habit of members of the Gypsy Jokers to go on runs to various places within South Australia or beyond several times each year. The purpose of the run on the long weekend commencing on Saturday 15 May 1993 was to ride to at least Kadina, to camp in the area of Kadina over the long weekend, and to return to Adelaide on the afternoon of the holiday Monday 17 May 1993. This long weekend was the weekend when the Cornish festival (or Kernerweklowender) was usually celebrated in the area of the Copper Triangle and when between 30,000 and 40,000 visitors came to the area. About 4,000 people normally reside in each of Kadina, Wallaroo and Moonta.
During runs organised by the Gypsy Jokers it was the habit of members of the Gypsy Jokers to stop at various townships along the road leading to the ultimate destination. Whilst some individual members during such runs might stop on the side of the road for a cigarette from time to time, there were usually townships along the way where all members stopped and dismounted from their motorcycles. The purpose of these stops was to obtain fuel for those motorcycles needing it, to possibly purchase food, and to attend at an hotel in the township. Some members of the club drank alcohol at each or some such stops, and some didn’t.
The plaintiff’s case was that members of the Gypsy Jokers stopped at least at Port Wakefield, and at a township further north named Paskeville, both towns being on the main bitumen highway between Adelaide and Kadina. Port Wakefield is about 97 kilometres from Adelaide; Paskeville is 31 kilometres further on from Port Wakefield; and Kadina is 20 kilometres further on from Paskeville. The plaintiff’s case was that the plaintiff rode his motorcycle as far as Paskeville. When club members were leaving the hotel at Paskeville, some club members considered the plaintiff to be unfit to ride his motorcycle any further as a result of alcohol he had consumed. As a result, Mr Atherton, whose own Harley Davidson motorcycle had broken down at or just before Paskeville, rode the plaintiff’s motorcycle from the hotel at Paskeville towards Kadina with the plaintiff as pillion passenger. Mr Atherton was riding the motorcycle at about 100 kilometres per hour at the point of the apex of the right-hand sweeping bend just prior to the railway crossing before the entrance to the township of Kadina, when he lost control of the motorcycle on some loose gravel on the bitumen highway. As a result the motorcycle crashed causing injuries to the plaintiff. The plaintiff suffered quite severe injuries, the major being fractures and dislocations to his left shoulder resulting in nerve injury throughout the area of his left shoulder. He also suffered injuries to his upper back, chest, right arm and abdomen, and multiple lacerations and abrasions. I shall refer later to Mr Atherton’s evidence regarding the consequences of the accident on him, but it is sufficient to note here that on any view of the evidence Mr Atherton suffered no more than minor lacerations for which he neither required nor sought medical attention or treatment. No witness gave evidence of seeing any injury to Mr Atherton. The plaintiff claims that the accident was caused by Mr Atherton’s negligent management of the plaintiff’s motorcycle.
The case the defendant presented at trial was that the plaintiff rode his motorcycle from Adelaide to Paskeville consuming alcohol along the way. The defendant’s case was that the plaintiff rode his own motorcycle from Paskeville to the area of the railway crossing where he lost control of his motorcycle and crashed into a barrier positioned to the left of the roadway, and which followed the roadway around the right-hand sweeping turn. The plaintiff and the motorcycle both went over the barrier and the plaintiff landed and rolled to or near to the railway line where it crossed the road, thereby suffering the injuries for which he seeks damages in this action. The defendant’s case was that Mr Atherton was not riding the plaintiff’s motorcycle with the plaintiff as pillion passenger, but rather the plaintiff was riding his own motorcycle as a solo rider, and his injuries were caused solely by his own negligence.
Whilst the defendant made a number of alternative pleas in its Defence, these were ultimately abandoned by the end of the trial. Furthermore, the defendant did not submit that, if I were to find that Mr Atherton was the rider of the motorcycle when the accident occurred with the plaintiff as his pillion passenger, it was open to me to find that Mr Atherton was not negligent in his riding and management of the motorcycle. I find that if Mr Atherton was the rider of the motorcycle, he was negligent in a number of respects in failing to take the right-hand turn at which he said he lost control. The defendant did not suggest that a contrary finding was open on the evidence..
The only issue that I have to determine to decide liability is one of fact. That is, whether it was the plaintiff or Mr Atherton who was riding the plaintiff’s motorcycle at the time of the accident. I have no doubt that an accident occurred at about 6pm on Saturday 15 May 1993 which caused the injuries for which the plaintiff claims damages. There is no-one, other than the plaintiff or Mr Atherton, who could have been the rider of the motorcycle.

Gypsy Jokers Motorcycle Club

The Gypsy Jokers Motorcycle Club Inc. (“Gypsy Jokers”) and the plaintiff’s membership of it were the subject of a considerable amount of evidence at trial. Evidence on these topics was introduced by both the plaintiff and the defendant. For example, the plaintiff adduced evidence of what was said to be part of the rules or code of the club that no member of the club should speak to a member of the police force unless such is first cleared by the then president of the club. That evidence was adduced by the plaintiff to seek to explain why no member of the Gypsy Jokers who was at the scene of the accident answered questions asked of them by police officers who attended at the scene. Questions that were asked by the police at the scene sought to elicit information regarding the circumstances of the accident in which the plaintiff was injured, and whether anyone had seen the accident. Mr Atherton said in evidence that he was at the scene and was spoken to by police at the scene. The defendant adduced evidence of incidents involving club members which was said to suggest that members might be untruthful in their dealings with the police or the courts if to do so would protect fellow members from possible prosecution for offences, or would assist them in claims they might seek to make from insurance companies. I heard evidence, for example, of an incident subsequent to the accident the subject of these proceedings, which was said to have occurred in Geraldton in Western Australia, on a run by the Gypsy Jokers in the area of Geraldton. The evidence referred to an apparent incident when Mr Atherton’s brother was injured in a solo motorcycle accident where the then president of the Gypsy Jokers apparently claimed that he was the rider of Mr Atherton’s brother’s motorcycle when Mr Atherton’s brother was a pillion passenger to him. Apparently, Mr Atherton’s brother was subsequently successfully prosecuted for seeking to obtain money by falsely pretending that he was the pillion passenger when he was in fact the rider. I also have evidence before me which suggests that the plaintiff in this action was driving a motor vehicle when he collided with the rear of another motor vehicle. There is a statement of a witness before me which is to the effect that the plaintiff made a statement after that accident in which he suggested to the passenger in his vehicle that she might say that she was the driver of the vehicle and not him.
The full circumstances of these two incidents are not before me, at least in the form of sworn and tested evidence. I have had no regard to them in assessing the witnesses that I have heard and the evidence that has been given by them.
Apart from evidence of these two incidents, I also have a considerable body of evidence before me regarding the plaintiff’s criminal and road traffic history and his character generally. Parts of his history of criminal and other offences is relevant to a question of damages and I refer to these matters later. But I have assessed the plaintiff’s credibility on the basis of the evidence in this case and the manner in which the plaintiff gave his own evidence, not on his general character.
In assessing the evidence of all those members of the Gypsy Jokers as to the circumstances of the run to Kadina on the day of the accident, I have not been influenced by evidence upon which it was suggested I might infer that their evidence is unreliable because of their association with the Gypsy Jokers. The Gypsy Jokers were said by a former president to have adopted the term “outlaw bike club” as a description of the club. He said that for some members the police and the courts are regarded as the enemies of the club. The word “gang” was also used during the trial to describe the Gypsy Jokers. Furthermore, it would be open on the evidence to find that one effect of a run by the Gypsy Jokers, whether intended or not, is to cause considerable distress and concern to the small communities and their police forces at the ultimate destination of the run, and at the various stops along the way. I was told that hotel stops along a run were prominent features of a run, and at such stops alcohol and probably drugs of some sort were consumed. I heard extensive evidence regarding the events at Kadina, once members of the Gypsy Jokers had reached that town on the run in May 1993. They apparently all attended at the Royal Exchange Hotel (except for the plaintiff who was at the Kadina Hospital) and what occurred there was described by one police officer as mob rule. I heard evidence of a fight within the hotel between members of the Gypsy Jokers and Kadina locals where the doors to the bar where the fight occurred were barred to police by members of the Gypsy Jokers. A police officer who gave evidence described his fear during that evening. The police officers who gave evidence gave quite different estimates of the number of Gypsy Jokers at the hotel at Kadina that evening. It was suggested to me in submissions that those various estimates was an example of how people’s memories can differ as to detail after several years. Another possible explanation is that the estimates of the police officers at Kadina that night might be affected by their respective levels of apprehension during the night’s activities. It is probably the case that at least forty members or persons associated with the Gypsy Jokers were at the hotel at Kadina that night. Such was the concern of the outnumbered police force that evening that I heard evidence of a deal that was brokered between the police and the club to the effect that the club members would camp outside the township at a place selected by the police in return for which the police would not test any member of the club for alcohol-related driving offences.
But like the general character of the plaintiff, neither the general behaviour of members of the Gypsy Jokers on the occasion of the run on the Adelaide Cup long weekend in May 1993, nor the stated reputation of the Gypsy Jokers and its members, have influenced me in determining the one factual issue I have to decide on liability in this case. That is, whether it was Mr Atherton or the plaintiff who was riding the plaintiff’s motorcycle when it crashed at the railway crossing just before Kadina. As I have earlier indicated there are some aspects of the culture of the club and its expectations of its members that may be relevant to that issue. I shall consider those matters when I consider the evidence of the run to Kadina and of the accident involving the plaintiff.
Before dealing with the circumstances of the day of the accident, I say something more about the Gypsy Jokers and membership of it.
Amongst the Association’s objects and purposes are those to inspire, foster and promote the art of enjoyment of motorcycling pursuits, and to promote a bond of camaraderie between all motorcycle enthusiasts. Any person who owns an American or English motorcycle in excess of 500cc capacity in a good state of repair, which complies with the standards of road worthiness as laid out in the Motor Vehicles Act, 1959 and any other Act for the time being in force in the State of South Australia, may be an ordinary member of the Association. This is subject to being nominated and being accepted as a “nominee” by resolution of members present at any weekly meeting, and being a nominee for a continuous period of six calendar months. A nominee then must be accepted as a member by an extraordinary resolution of members present at any weekly meeting and, upon being accepted, must purchase some item containing the Association’s motif which may from time to time be a requirement of members. I do not know whether it is a constitutional requirement of members to purchase “colours”, but the evidence is that members of the club wear the “colours” of the club attached to the back of a sleeveless leather or denim vest when on a club run, and presumably at other times. The “colours” comprised the club’s motif. I was told that a member’s “colours” are highly prized by the member. Members’ “colours” took some significance in the evidence of the events of the day of the accident. There was evidence that members of the club attended at the Kadina Hospital in order to retrieve the plaintiff’s “colours”. There had earlier been some altercation with an ambulance officer at the scene of the accident when club members sought to remove the plaintiff’s “colours” before he was placed in an ambulance. The fact that Mr Atherton’s “colours” were undamaged was said to be relevant in light of Mr Atherton’s evidence that he had slid on his back-side after coming off the plaintiff’s motorcycle.
The constitution of the club requires all members to conduct themselves in a matter consistent with the aims and objects of the club and to abide by the decisions of the club relating to the conduct of members. All members are required to attend all weekly meetings provided that an apology from any member shall exempt that member from attendance at a meeting if it is accepted by a resolution of the members present at the meeting. The rules provide that an alleged breach of conduct must come before a weekly meeting occurring after the alleged breach, and shall be inquired into by the members present at that meeting, who may, by special resolution, direct the Chairperson (president) to caution, suspend or expel from the Association the member found in breach. There was much evidence at trial as to whether the plaintiff had, at about the time of the accident, been cautioned by the then president for misconduct arising out of excessive use of alcohol.
The rules also provide for officers of the club including a Chairperson (the President), a Treasurer, a Secretary, a Public Officer and a Sergeant at Arms. The club’s rules and the evidence establishes that there is a certain degree of order and discipline required of members which can be enforced within the club. It is difficult to say on the evidence how strictly certain rules are enforced, or even to say what rules and procedures are commonly understood amongst all members. For example, some members of the club gave evidence that the ultimate destination of a run was kept secret from club members. It was said that one reason for that was to ensure that the police did not find out the destination and the route to be taken. An ex-president of the club gave evidence that that information was certainly kept secret until just before the run started “so it is more or less a surprise”, but that at the start any member who asked would be told. Another member indicated that members of the club would be told during a run just where the next stop was before heading off from the place at which they were stopped.
More importantly, members of the Gypsy Jokers gave divergent evidence on what was said in the plaintiff’s opening to be a rule within the club that members don’t say too much about what has happened until the president has cleared it. The plaintiff himself denied that that was the rule, and said that a Gypsy Joker does not speak to the police until he speaks with his lawyer. Another member of the club gave evidence that an office-holder of the club can speak to police if an office-holder is present and, if an office-holder is not present and a life member of the club is, then the life member is able to speak to the police. The alleged rule that no member is to speak to the police until cleared by the president is important in this case because it is relevant to the circumstances of the day of the plaintiff’s accident.

The evidence does establish that there are strong bonds of camaraderie, friendship and trust between members of the Gypsy Jokers. Those that were asked denied that such bonds would cause them to lie to the police or the courts in order to protect or to assist fellow members.

The plaintiff’s witnesses

The plaintiff gave evidence that on the day of the accident about thirty or forty men gathered at the club premises of the Gypsy Jokers at Wingfield for a run. He said they did so about 9 am to 9.30 am. He had commenced an association with the Adelaide Chapter of the Gypsy Jokers about fourteen years prior to the day of the accident; had become a nominee about six years before the accident; and had become a member after about one year as a nominee. By May 1993, he had been a full member of the Gypsy Jokers for about four to five years. Of the thirty or forty men who gathered for the run, only a few were nominees, and there were also some few more who were allowed to go along for the ride who were neither members nor nominees. No women or children were present. The plaintiff said he could recall riding his motorcycle solo from Wingfield to Port Wakefield. He said he recalled stopping at Port Wakefield and his last memory of that day was sitting on a footpath at Port Wakefield with one of his mates. He said that he did not drink alcohol along the way. He said that he has no recollection of what he did after leaving Port Wakefield and indeed cannot remember leaving Port Wakefield. The next thing he remembers is waking up or being in the Royal Adelaide Hospital at which time he had a bit of a turn. He thought that was a day or two after the accident. That turn was probably associated with his epileptic condition to which I shall return later. He awoke in the Royal Adelaide Hospital with the injuries for which he claims damages in this action. He said that whilst his injuries included some facial injuries he denied that he suffered a head injury other than some cuts to his face. The medical evidence was to the same effect. That is, that the plaintiff suffered no head injury other than some cuts to his face.
Evidence of Dr Ross James was tendered by the defendant which proved that the likely blood alcohol concentration of the plaintiff at the time of the accident was approximately 0.165gm per cent. Dr James described that as a high level, being at least twice the level at which there would be significant impairment of faculties relevant to motorcycle riding. Such faculties included speed and distance judgment, co-ordination, balance and eye function.
In his evidence-in-chief Mr Atherton (who had only become a full member of the Gypsy Jokers two weeks before the day of the accident) said that just as the group arrived into Paskeville his clutch cable snapped. He managed to get into Paskeville where he loaded his motorcycle onto a trailer which was being towed by a support vehicle. This was a vehicle which normally followed a run for such eventualities as breakdowns. He went to the hotel at Paskeville and socialised with others on the run. The group was there for a couple of hours, maybe longer. When leaving, he was getting on the back of one of the other bikes and one of the other members came up to him and asked him to ride the plaintiff’s bike because the plaintiff had been drinking a fair bit and was in no capable position to ride it. Mr Atherton said he rode the plaintiff’s bike from Paskeville with the plaintiff as his pillion passenger. At the site of the accident he said that it was pretty dark and he overshot the corner a bit. “I was going a little bit too quick for it. Dirt and crap on the road caused me to lose control of the bike.” This was on the right-hand sweeping corner. He said he lost control of the bike approximately in the middle of the road and when he lost control he dropped the bike on its right-hand side. He could not recall what happened to it after that. When he came off and when the bike left him, he was sliding on his back-side sort of following the bike down the road. He thought the bike hit a guardrail on the corner. At Paskeville he had put on some waxed cotton pants and a jacket, and the back-side of the waxed cotton pants was torn out fairly well, and also on the forearms of the waxed cotton jacket. He said he suffered minor grazing to his back-side and forearm or forearms. He found the plaintiff a little further down the road than he was when he finished sliding. He said he spoke to police at the scene but could not recall what he said. He said he and other members loaded the plaintiff’s motorcycle onto the trailer of the back-up vehicle and went into Kadina. He said that he did not explain to the police what had happened. He said he wasn’t asked. He said no enquiries had been made of him at the scene. In Kadina he approached the then president, Mr Simon Brown, to let him know about the accident. He was asked:
“Q. Why did you speak to Simon Brown.
A...... He’s the club president. Just I went up to speak to him because he’s - well, I can’t say. He’s the club president, he knows. Rather than speak to one of the other members, it is better off going straight to the head, isn’t it?”

After speaking to Mr Brown he went to see if he could do something about fixing his motorcycle. At some later stage he thought that the police had approached Mr Brown and Mr Brown had called him over to speak to the police. The police officer was with Mr Brown at the time and Mr Atherton gave the police a brief statement of the incident. He said that he was later charged with “undue care” through a summons in the mail. He signed the back of it pleading guilty and was fined $280 or $300. He did not appear in court.

Messrs Stuart Uren, Robert Wenke and Peter Williams were at the time of the accident all members of the Gypsy Jokers. Each gave evidence on behalf of the plaintiff that they had seen the plaintiff and Mr Atherton leave the hotel at Paskeville together on the plaintiff’s motorcycle. The plaintiff was pillion passenger and Mr Atherton was rider. Each gave evidence that the reason the plaintiff was pillion on his own motorcycle related to the fact that the plaintiff was thought to be affected by the alcohol he had consumed during the run. I return to the evidence of these witnesses later.
The other member of the Gypsy Jokers called by the plaintiff was the president at the time of the accident, Mr Simon Brown. He had been president for about a year and had been a member of the Gypsy Jokers for about three or four years. Mr Brown said that the ultimate destination on any run was kept secret as a surprise to other members. It is announced at the beginning of the run when he says “Right, we’re going to such and such”. He said that the usual format on runs was for the group to head off in a group together, led by the president with the nominees towards the back and hangers-on at the back of the pack. There were normally frequent hotel stops. He did not particularly remember the route taken on the day of the plaintiff’s accident, “having drunk a lot of booze”. He said that he heard about the accident when he was at a hotel in Kadina where they had drunk “for some time that afternoon”. He said he spoke to the police several times but had no recollection of what incidents in particular he spoke to the police about. “With a bunch of guys like that drinking heavily, you know, the police are always concerned about this or that”. He said that Mr Atherton spoke to him at Kadina about the accident and he knew that Mr Atherton had spoken to the police because he had to ask him if he was allowed to. He said it was club procedure that no-one speaks to the police unless they got permission from the president. He said he could recall speaking to the police but he said he was not “100% on memory that day”. He said it was not necessary under club procedure for him as president to be present when a club member speaks to the police. In cross-examination Mr Brown was asked:
“Q.... Do you recall whether he (Mr Atherton) told you about whether John Atherton had been injured.
A.No. John was visibly alright.
Q...... I understand that. My question of you is whether Mr Atherton had said to you in the course of this conversation that he had been injured.
A.No.”

He said that he had taken it for granted that Mr Atherton was not injured because he was apparently uninjured and was moving perfectly naturally or normally.

The defendant’s witnesses

In its case, the defendant called the doctor from Kadina Hospital who attended at the scene of the accident, one of the two ambulance officers in the ambulance that attended at the scene of the accident, the four police officers who attended at the accident scene, and another police officer who was the crime scene examiner at the Kadina Police Station who attended and took photographs at the scene. I was told that the other ambulance officer in attendance is no longer in the ambulance service. The Director of Nursing at the Kadina Hospital also gave evidence.
The doctor and the ambulance officer said that when they reached the scene the plaintiff was conscious, was oriented in time and place, and was able to answer the questions they asked of him. Those questions were regarding his injuries. He appeared to be in considerable pain. The doctor recorded no loss of consciousness in the plaintiff and no neurological deficits. At the scene both the doctor and the ambulance officer proceeded as if the accident involved a solo motorcycle rider, being the plaintiff. The ambulance officer said that it was important for her to ascertain whether anyone else had been involved because there might be some other person who might have been thrown away from the accident scene or even wandered away in a concussed state. She said she asked those who were present at the scene whether anyone else was involved and whether anyone else was injured. She said that no-one came forward and said they had been hurt or injured in any way. The ambulance officer continued to believe the plaintiff was the only person involved in the accident even after she had escorted the plaintiff in an ambulance to the Royal Adelaide Hospital later on the evening of the day of the accident.
The ambulance officer spent over 11/2 hours in the back of the ambulance with the plaintiff on the journey from Kadina to Adelaide during which time they conversed together. She recalled the plaintiff expressing his worry that he may not be out of hospital in time to attend a court case on the following Tuesday, and she recalled him saying to her, “Here I am blubbering” and she saying “I thought bikies were supposed to be big, tough guys”. He appeared to her to be in pain. She said that during this journey the plaintiff was conscious and lucid, was oriented in time and place, did not appear confused, and did not appear drunk. She did not record, as she normally would if it was the case, that she smelt alcohol on him. At no time did he say to her that he was the pillion passenger on the motorcycle. The ambulance officer was a most impressive witness and I have no hesitation in accepting the accuracy and reliability of her recollections of the night of the accident.
Three of the four police officers who attended at the scene said that on that evening they proceeded on the basis that only one person was involved in the accident, and that was the injured plaintiff as rider of the motorcycle. The other police officer was not questioned on this issue. Each of the three police officers referred to asked those members of the Gypsy Jokers who were present at the scene whether there were any witnesses to the accident, or whether any person could give them information as to what had happened. Each said that the members of the Gypsy Jokers at the scene remained mute when these enquiries were made. I accept this evidence. If Mr Atherton’s evidence that he was at the scene is correct, then it follows that he was one of the group who remained mute. Mr Atherton’s evidence was that no enquiry was made of him at the scene by the police, although he did say that he spoke to the police at the scene but could not recall what he said to them. I consider Mr Atherton’s evidence in more detail later in these reasons.
Each of the three police officers just referred to were officers of considerable experience in the police force, with 30 years, 23 years, and 27 years service. All were based at Kadina at the time of the accident. The officer with 30 years’ experience said that at the accident scene he noticed some marks on the guardrail which were black marks either made by paint or a tyre. He also noted some scratches along the guardrail and marks on the black and white sign adjacent to the guardrail. He formed the view that all these marks were very fresh. He said that he did not observe any markings on the roadway itself. At the scene he saw no other member of the Gypsy Jokers who appeared like the plaintiff did to be dirty and dusty, nor did he see anyone else at the scene who appeared to be injured in any way. He said that he had a conversation with Mr Atherton outside the hotel at Kadina at 8.05pm on the evening of the accident. He said that the president, Mr Simon Brown, was not present when he spoke to Atherton. Mr Atherton appeared to him to have no obvious injuries and he appeared to be clean and did not have any marks on him. Mr Atherton did not suggest to the police officer that he, Mr Atherton, had changed his clothing between the accident and the time of the conversation. Mr Atherton had come up to the police officer and said, “I believe you are looking for me” or words to that effect. He said, “I’m the rider of the bike”. The police officer said that he was shocked by that statement and said, “What do you mean?”. Mr Atherton said, “I am the rider of the bike”. As a result of that the police officer made notes of the conversation that he then had with Mr Atherton. He gave evidence from those notes that, Mr Atherton having said that the plaintiff was his pillion passenger, the police officer asked, “What speed were you doing?”.
“He said, ‘Don’t know’.
I said, ‘What happened?’
He said, ‘I just came into the corner and realised I could not take it. It just laid over’.
I said, ‘Why couldn’t you take the corner?’
He said, ‘I don’t know’.
I said, ‘Were you travelling too fast for the corner?’
He said, ‘I suppose’.
I said, ‘Did you see the warning signs of the corner?’
He said, ‘I must have’.
I said, ‘Anything further you wish to say?’
He said, ‘No’.
I said, “You will be reported for due care do you understand?’
He said, ‘Yes’.
I said, ‘Why no marks or injuries?’
He said, ‘I rolled off when I could see it was going’.”
The police officer was asked why he asked the last question and the officer said that he believed it was asked after he had started to walk away and he felt he should ask it because Mr Atherton had no obvious injuries. He was clean, he didn’t have any marks on him, and there was nothing to lead the police officer to feel that he was actually involved in an accident.
The police officer said that he did not accept the explanation which Mr Atherton had given him concerning why his clothing was not marked and why he had sustained no injury, although he did not challenge Mr Atherton about that. He did not do so, he said, because he was intimidated at the time. “There were four bikies standing alongside of me as well as Mr Atherton and I really just wanted to get the interview over and done with, complete my paper work and get back to normal life.” The police officer gave evidence of completing a vehicle collision information document. Adjacent to the word injury he left a blank area. He said that he would have asked Mr Atherton whether he had suffered an injury and the blank area adjacent to the word “injury” on the form indicated to him that Mr Atherton had replied that he had not suffered any injury. That was, he said, consistent with his observation of Mr Atherton on that evening.
One of the other police officers who attended at the scene of the accident observed the guardrail and said that he believed it had black rubber marks on it which appeared to be fresh. The area of the marks appeared to him to be the point of impact where the motorcycle had gone over the guardrail into the gully beyond. That officer said that he didn’t see anyone at the scene who appeared to be dusty or dirty other than the plaintiff. The third police officer similarly could not recall seeing any person at the scene of the accident who was soiled in any way.
The police officer who attended as crime scene examiner to take photographs, described fresh marks on the guardrail which he assumed to have been caused by the motorcycle involved in the accident. The marks appeared to him to be paint.
All police officers who gave evidence were impressive witnesses. All were prepared to allow that all the detail of the night’s activities was not clear in their minds when they came to give evidence some years later. In particular, each was prepared to concede that the area of the accident was insufficiently well lit for them to have clear and precise recollections of the manner in which members of the Gypsy Jokers at the scene were dressed. Each was asked about the number of members of the Gypsy Jokers who were at the scene, and whether or not any of them were wearing waxed cotton garments as described by Mr Atherton in his evidence. I am not able to find, on the evidence of the police officers, whether or not there was a member of the Gypsy Jokers at the scene wearing such a garment, although I am prepared to find, relying on the evidence of the police officers, that no police officer saw any member of the Gypsy Jokers who obviously appeared to have been involved in the accident other than the plaintiff. The police officer who gave evidence of his conversation with Mr Atherton outside the hotel at Kadina gave his evidence clearly, and I thought objectively. I accept his evidence as truthful and reliable. In particular, I find that he asked Mr Atherton whether he suffered any injury in the accident, to which Mr Atherton answered no.
The doctor from the Kadina Hospital who attended at the scene of the accident attended the plaintiff again when the ambulance returned to the Kadina Hospital. He said that a lot of the plaintiff’s friends arrived at the hospital and proved somewhat obstructive, possibly unwittingly. Although the plaintiff smelt of alcohol he was certainly alert enough to answer all his questions. A blood test was taken. He said his conduct at the accident scene and in taking blood was on the assumption that the plaintiff was the only one involved in the accident. He conceded that it commonly occurred that persons who may be passengers in vehicles involved in accidents, have blood samples taken if there is uncertainty as to who is the driver.
The plaintiff left the Kadina Hospital by ambulance to the Royal Adelaide Hospital at about 8.25pm on the night of the accident. That was about 21/2 hours after the accident itself. In the doctor’s letter to the Royal Adelaide Hospital which was to accompany the plaintiff for admission to that hospital there is reference to the plaintiff being the pillion passenger on the motorcycle concerned. The doctor who wrote that letter said he wrote it just before the ambulance left for Adelaide but could not recall where he obtained the information which lead him to make that note. The potential sources of information were the plaintiff himself, the ambulance staff, and the friends or associates of the plaintiff who attended at the hospital. The plaintiff, in submissions, asked me to find that that information must have come from the plaintiff himself. The defendant asked me to find that that information likely came from the friends or associates of the plaintiff who attended at the hospital at Kadina.

One other witness called by the defendant was Mr Chris Hall. Mr Hall obtained an honours degree in mechanical engineering from the University of Adelaide in 1974. He has researched causes and effects of motor vehicle accidents including motorcycle accidents. Since 1987 he has been technical consultant to motor racing circuit design and conducting of events. He has since that time conducted a general consultancy in vehicle and industrial accidents for the legal profession, involving appearance in court as an expert witness. He has prepared many reports and given evidence in Australia and overseas courts in a number of areas relating to motorcycle accidents including detailed accident reconstruction, collision geometry, rider/pillion seating and movements in collision, injury patterns, and rider reaction times and effects. He was an active competitor in motorcycle sport from 1968 to 1994 competing in speedway and road-racing. He has lectured in accident reconstruction at various universities in the United States of America.
Mr Hall’s evidence was that the damage to the plaintiff’s motorcycle and the injuries suffered by the plaintiff were consistent with a fall by the plaintiff from the motorcycle at a reasonable speed and impact with a solid object. The solid object was most likely the guardrail at the side of the road just before the railway crossing. The damage pattern to the motorcycle indicated that impact with the guardrail probably occurred. Simply sliding across the bitumen surface would not have been sufficient to cause the damage to the motorcycle. He said that the absence of significant injuries to Mr Atherton was not consistent with hitting a guardrail at a speed close to 100 kilometres per hour on a motorcycle. At least abrasions and grazes consistent with those suffered by the plaintiff would be expected. Rolling across the road or gravel surface would not prevent significant injuries. In addition, it could be expected that clothing would be obviously abraded.
The above evidence appears in a report from Mr Hall to the defendant’s solicitors dated 12 April 1998. It appears to have been prepared on the assumption that the plaintiff, Mr Atherton, and the motorcycle hit the guardrail on the side of the road, and that Mr Atherton had rolled off the motorcycle. After Mr Atherton had given evidence at trial, a further written report was prepared by Mr Hall. It was tendered when Mr Hall gave evidence. In that report Mr Hall said that when the front wheel of a motorcycle slides out, the motorcycle falls quite rapidly onto its side, causing the rider and pillion to similarly fall quickly onto their sides or backs. The subsequent motion of the fallen bike and rider/pillion is tangential or near to tangential from the original path prior to falling. The three objects (motorcycle, rider and pillion) are projected in generally the same direction, with some small variation in direction due to seating locations. Over a relatively short sliding distance it can be expected that the rider and pillion would move on reasonably similar paths. He said that if the motorcycle fell at the apex of the corner while positioned at about the centre of the road, the fallen bodies would have travelled towards the Armco barrier (the guardrail) positioned on the outside of the bend. A motorcycle such as the Harley Davidson concerned would take about 100 metres to come to rest and hence it would be expected that the motorcycle would have struck the Armco barrier. A person sliding across a bitumen surface would also be expected to impact with the Armco barrier. If neither the motorcycle or the rider or pillion struck any fixed object, the motorcycle would slide the furthest, a sliding person the next furthest, and a tumbling or rolling person the least furthest. If the motorcycle or either the rider or pillion struck a solid object, the motorcycle or the person would not travel as far as a sliding person that does not strike a solid object.
Mr Hall reported that at a speed of 100 kilometres per hour, significant abrasions to clothing can be expected, especially at the common contact points. A person sliding on his back would generally be in contact at the buttock area and shoulder area, with lighter contacts along the elbows/lower arms and feet. The heaviest abrasions generally occur at the buttocks, followed by the shoulder or thoracic region. Mr Hall said that if Mr Atherton fell at the location he said he did, and if, in some way, he did not strike the Armco barrier, then he decelerated much more rapidly than could normally be expected. The consequences of such a high rate of deceleration would be very heavy abrasions to clothing and contact points. He said that if Mr Atherton did not strike an object and slid along his back on the surface of the roadway, he would slide further than the plaintiff, if the plaintiff had struck the Armco barrier. He said that Mr Atherton’s apparent position at which he came to rest is inconsistent with the decelerations to which he, the plaintiff, and the motorcycle would have been exposed assuming the motorcycle and the plaintiff struck the Armco barrier.
In his evidence, Mr Hall said that he had inspected the scene of the accident. He said that if the rider of the motorcycle had lost control of the front wheel at the apex of the right-hand bend at 100 kilometres per hour, then it would have impacted with the guardrail at a speed in the region of 60 kilometres per hour to 80 kilometres per hour, and the potential for injury of anyone on the motorcycle was very high. He said that the plaintiff’s injuries were consistent with the motorcycle impacting with the guardrail at that speed with the plaintiff on, or with, the motorcycle. An impact at that speed was not consistent with anyone on the motorcycle having no apparent injuries. He said that anyone who tumbles down a roadway after coming off a motorcycle at 100 kilometres an hour would certainly suffer injuries which might not necessarily be broken limbs, but would be bruising and soreness which would exist over some days. If the plaintiff and Mr Atherton were on the same motorcycle, then he would not expect the rider and pillion to go in different directions, and he would expect them both, and the motorcycle, to hit the guardrail. He said that it is extremely difficult for a rider to bring a motorcycle down and then slide without the upper back of the person sliding touching the ground. He said it was almost impossible on dry bitumen. He said that even if a rider is able to push away from a motorcycle after it comes down, the rider is not able to achieve a large deviation in direction from that of the motorcycle. He thought it was likely, even if some deviation was achieved, that the rider would still make contact with the guardrail when riding a Harley Davidson.
He said that if the motorcycle had been laid over at the apex of the bend and it had struck the barrier at about where the marks appear in the photographs, he estimated that the speed of the motorcycle when it hit the barrier in that area would have been about 80 kilometres an hour to 85 kilometres per hour. He said that the damage to the left-hand side of the motorcycle that he saw in the photographs suggested to him that the motorcycle was not upright when it struck the barrier. He said that he has never seen the right-hand side of the motorcycle. There is no evidence before me as to damage to the right-hand side of the plaintiff’s motorcycle.
Mr Hall’s evidence was compelling and largely unchallenged. I accept, and rely on, Mr Hall’s evidence. Much of it was consistent with Mr Atherton’s evidence. Mr Atherton described having considerable experience himself in riding motorcycles, and having accidents whilst doing so. He described considerable experience in competitive motorcycle riding and speedways. The effect of his evidence was that he could not have walked away from the accident with insignificant injuries had he been on or in contact with the motorcycle when it hit the guardrail. He also said that had he rolled after coming off the motorcycle, he would have suffered more significant injuries than he did.

Mr Atherton’s evidence

Mr Atherton was a most unimpressive and unsatisfactory witness. He gave his evidence in an unconvincing, deadpan manner. His was the only direct evidence of the circumstances of the accident given at trial. Having accepted that it was not possible for him to have suffered the minor injuries he described if he, the plaintiff and the motorcycle had struck the barrier, or if he had rolled off the motorcycle, he gave evidence that the accident occurred such that he was able to leave the bike and slide along on his back-side without his upper body making contacting with the surface of the roadway, whilst the plaintiff and the motorcycle apparently went in a different direction and struck the guardrail on the side of the road. That was the only possible scenario consistent with the damage to the motorcycle, the injuries suffered by the plaintiff, and Mr Atherton’s injuries as described by him in evidence. I find that Mr Atherton approached a police officer outside the hotel at Kadina. Mr Atherton informed the police officer that he was the rider of the motorcycle involved in the accident earlier that evening. I find that the conversation was as related by that police officer and set out earlier in these reasons. I find that Mr Atherton was asked, “Why no marks or injuries?” and that he replied, “I rolled off when I could see it was going”. I find that Mr Atherton had no injuries that were obvious. He was clean, he didn’t have any marks on him, and there was nothing that might have indicated to anyone that he had been involved in an accident. I find that Mr Atherton was asked whether he had suffered any injuries and that he replied that he had not.
I find that at some time between the accident on 15 May 1993 and 27 July 1993, Mr Atherton signed a statement regarding the accident. He said that he did not write that statement and there is no evidence as to who did. He accepted that he signed the statement, and I find that he knew and understood its contents when he signed it. In the statement he stated that he was doing about 100 kilometres per hour with the plaintiff on the back of the motorcycle when he realised he couldn’t make the corner because it was such a bad corner and a slippery surface. He stated - “We his (sic) the gard (sic) rail and I went one way, bike and Garry went another. I only suffered bits of Gravel rash, as over the past 20 years with motor racing (speedway) I have had to learn how to roll with an accident.” This statement makes no reference to him laying the motorcycle down and states that he, the plaintiff, and the motorcycle hit the guardrail. It further states that he suffered bits of gravel rash as he had learned how to roll with an accident. Mr Atherton accepted that the statement was to this effect.
On 28 August 1993, Mr Atherton signed an accident report form for SGIC in which he stated that he was “travelling on the road to Kadina after leaving Paskerville. I was doing approximately 110kph about 2klm from Kadina. There was an S bend in the road. The surface was light gravelly and not realising how tight the corner would be before I could do anything the front wheel was sliding from under us.” That was the extent of the description of the accident. In that part of the form referring to accident particulars, this question is asked: “In your opinion was accident your fault?”. This question was answered “No”. The report form then asks “If no, give reason”. The answer which appears is “because I was passenger”. That part of the accident report form is obviously referring to the rider and not the passenger. The answer is quite inconsistent with answers on other parts of the form where the plaintiff is referred to as the passenger. That part of the form to which I have referred where it is suggested that Mr Atherton was the passenger is not filled in in Mr Atherton’s handwriting. Mr Atherton could give no explanation for that answer appearing on the form. One possibility he conceded was that he and the plaintiff together filled out the form. Also in the accident report form Mr Atherton denied the consumption of any alcohol by him in the 24 hours prior to the accident. He admitted in evidence that that was untrue. His evidence was that he had probably consumed alcohol at hotels at both Port Wakefield and Paskeville. He could not explain why he had filled in the form incorrectly regarding his consumption of alcohol.
On 13 May 1994, Mr Atherton was interviewed by an insurance loss adjuster about the accident. He told the loss adjuster that “the front wheel slipped out coming into the corner. When I realised I was going a bit too quick I applied the front brakes and possibly over-applied them. That caused the front wheel, together with the gravel, to slide out from under me. The bike slid out and landed on its right side. On the low side it slid away into the scrub area ... I came off the bike and headed in a completely different direction from Garry. I did not get hurt badly, apart from some slight cuts and grazes to my legs.” He said that he did not see what happened to the motorcycle and the plaintiff. He said: “I lost the bike on the approximate apex of the right bend, then I slid on the roadway near to the left edge of the roadway. The bike was on its side, I am not sure which side but I think it was its right side. The bike was off the bitumen approximately three to four metres into the scrub on the left-hand side of the road ... Garry, when I found him, was on the roadway near the railway line approximately less than 10 metres away, although I am not exactly sure of the distance.” He said in evidence that the plaintiff was further on from the bike and him.
Mr Atherton could not explain why he had signed a statement on 27 July 1993 which said that he, the plaintiff and the motorcycle had hit the guardrail. Nor could he explain why he had signed a statement which implied that he had rolled after the accident. He denied in evidence that either of those events occurred. He conceded that had either of those things happened his injuries would have been far more severe than they actually were.
Mr Atherton was also unable to explain why he told a loss adjuster in May 1994 that his only injuries were slight cuts and grazes to his legs. In his evidence he made no mention of any injuries, however slight, to his legs or to either of them. Furthermore, his evidence as to how he could have gone in a completely different direction from the plaintiff after coming off the motorcycle was unconvincing.
If both Mr Atherton and the plaintiff were on the plaintiff’s motorcycle when it crashed on the day of the accident, then the only way that that could have happened, consistent with Mr Atherton’s minimal injuries, is if Mr Atherton came off the motorcycle and slid along the roadway on his backside. Such a scenario strains commonsense and is contrary, or at least is not consistent with, the expert evidence of Mr Hall. Mr Hall’s evidence, which I accept, was that Mr Atherton was likely to have struck the guardrail, and, if he didn’t, it was almost impossible for him to slide along dry bitumen without his upper back touching the ground.
I consider it very significant that Mr Atherton did not come close to describe the dynamics of the accident in the way that he described them in evidence at trial, on any earlier occasion when the circumstances of the accident appeared in a statement signed by him or were described by him to an investigator. He accepted in evidence that his memory of events was more likely to be better closer to the time of the accident than at trial. I think that it is highly significant that, when describing the accident in the several months following it, he gave a description that was, in material respects, different from that which he gave in evidence. In addition, he gave quite different accounts of the injuries suffered by him.
I was asked by the defendant to find that Mr Atherton changed his version of the accident at trial because he had been advised of the thrust of what Mr Hall had said in his report to the defendant’s solicitors in April 1998. I do not think there is sufficient evidence before me to justify such a finding, although I have no doubt that the plaintiff and Mr Atherton have discussed the events of Saturday 15 May 1993 on a number of occasions since that time. But I do find that Mr Atherton has given evidence of the incident at trial in the manner which he has because he realised (regardless of whether or not he was told what was in Mr Hall’s report) that his earlier versions were inconsistent with the minimal injuries he sustained. I find that he knew that no-one had seen any injuries on his body or any indication that he had suffered any injuries. He could not change that lack of evidence, but he could change his account of how the accident had occurred to make it as consistent as it possibly could be with his suffering minimal injury.
I do not believe Mr Atherton when he said that he was riding the plaintiff’s motorcycle on the evening of the accident with the plaintiff as his pillion passenger. I find that he was not. I find that after the accident he “volunteered” to say to the police that he was riding the plaintiff’s motor cycle with the plaintiff as his passenger. I make further findings as to this later in these reasons. Before doing so, however, I turn to consider the evidence of the plaintiff.

The plaintiff’s evidence

In view of my finding that Mr Atherton was not riding the plaintiff’s motorcycle when it crashed, it is not strictly necessary for me to consider whether the plaintiff has been truthful in saying that he has no memory of the accident and the circumstances preceding and following it. But I consider that I should deal with this issue in these reasons.
I had the opportunity of seeing the plaintiff give his evidence over some days. Although he appeared to struggle at times with recounting the detail of the wide variety of matters about which he was questioned, and although he said on a number of occasions that he had trouble in recalling which doctors he had seen about what problems and in recalling exactly in what years certain events occurred, he was able to give a reasonable account of himself, his pre-injury work history, his associates (including those women with whom he had had relationships over the years), his children, the events concerning a number of his criminal offences and road traffic offences, and a number of other incidents in his life, of great, or of lesser, significance.
Whilst I conclude that the plaintiff’s evidence about, for example, his epileptic episodes, his criminal offending, his road traffic offending, his alcohol and drug habits, and several other road traffic accidents, was unreliable as to detail, I was satisfied that he had a recollection of the happening of most of the major, and many of the minor events, of his life. The one notable exception was the accident just outside Kadina on Saturday 15 May 1993. The plaintiff had only just been released from a period of over 3 years’ imprisonment a couple of months before the run of the Gypsy Jokers to Kadina. He knew that on the Tuesday immediately after the run his murder re-trial was due to commence. He said as much to the ambulance officer in the trip from Kadina to Adelaide, although the fact that he said anything to the ambulance officer, if he was telling me the truth, has been lost from his memory.
He said in evidence that he recalls sitting on the footpath at Port Wakefield and waking up at the Royal Adelaide Hospital a day or two after the accident and having what was apparently an epileptic seizure. He has no memory of anything in between. His sitting on the footpath was probably not less than 21/2 hours before the accident and was possibly up to 4 hours before the accident. The Gypsy Jokers witnesses spoke of being at both Port Wakefield and Paskeville for hours. Dr Sandow’s report indicates that the seizure at Royal Adelaide Hospital was at about 11.00pm on Monday 17 May 1993. The plaintiff has not said that he can recall snippets of the period referred to but cannot recall the detail of all of what happened in the period. There is a good deal of evidence from those who attended the plaintiff after the accident that he had not lost consciousness and was able to, and did, answer questions as to his injuries. He was able to converse with the ambulance officer who attended him during the journey from Kadina to Adelaide. It was submitted that I should find that the plaintiff told the doctor who attended him at the Kadina Hospital that he was the pillion passenger but that the plaintiff cannot now recall that he did. The plaintiff’s evidence is that he cannot recall anything between the time he sat on the footpath at Port Wakefield and the time that he awoke in the Royal Adelaide Hospital. The time between him sitting on the footpath at Port Wakefield and the accident could be as much as four hours, and the time between the accident and him waking up in the Royal Adelaide Hospital was 53 hours. He told me that he could recall having no alcohol to drink before or at Port Wakefield.

A number of explanations for the plaintiff’s loss of memory were explored in evidence. The plaintiff’s epileptic condition cannot explain it. I heard much evidence about his dreams and seizures and times during which he might lose consciousness or not have a memory of what occurs during such dreams or seizures. It was never suggested that any loss of memory during an epileptic episode was for any time greater than minutes, certainly not hours.
A head injury suffered by the plaintiff in the accident was perhaps the obvious possibility to explain the plaintiff’s amnesia. However, no-one said that the plaintiff lost consciousness, and no-one said that he suffered any head injury other than some cuts and abrasions on his face. The neurological evidence was that amnesia for the periods before and after the accident to the extent described by the plaintiff could only be possible neurologically had the plaintiff suffered a very severe closed head injury which included a fracture of the skull. None of that occurred. Indeed, the plaintiff’s evidence was that he did not suffer a head injury of that type.
The plaintiff’s alcohol ingestion was another possibility. But there was evidence from a neurologist that whilst alcohol can affect memory, it does not affect memory of events prior to the commencement of drinking, nor does it affect memory of events that occur after the alcohol that has been drunk has been fully absorbed by the body. In the plaintiff’s case both of those circumstances have occurred. The plaintiff cannot recall events which preceded the time that he started to drink, and he cannot recall events after the time at which his body would have fully absorbed the alcohol that he did drink.
Other explanations were put forward to explain the plaintiff’s loss of memory. Perhaps he had had illicit drugs which had affected his memory. Perhaps the medication he received at Kadina Hospital might also have done so. Perhaps he had suffered some sort of psychiatric or psychological reaction to the accident itself which erased the accident and periods of time before and after it from his memory. There was no expert evidence produced by the plaintiff to support this last possibility and it is to be noted that this accident was by no means the only significant accident or event in the plaintiff’s life. The final possibility suggested was that the plaintiff was preoccupied with his murder trial which was due to commence shortly after the accident. In fact the murder trial was due to commence on the Tuesday after the Adelaide Cup long weekend during which the accident occurred. The plaintiff had chosen to go on a run with his club members for the whole of that long weekend.
None of the suggested explanations, either singly or in any combination, are convincing. I am left with an unexplained complete loss of memory from a time which is several hours before the accident to many hours after it.
I find that the plaintiff does have a memory of the events preceding, during, and after the accident and has told me, untruthfully, that he does not. I find that soon after the accident he determined to say nothing about the accident to anyone who was not a member of the Gypsy Jokers in the knowledge that Mr Atherton was prepared to say to the police that he, Mr Atherton, was riding the motorcycle instead of Mr Collie. I find that Mr Collie was riding his motorcycle and not Mr Atherton.
The file of the Registrar of Motor Vehicles was tendered, from which it appears that the plaintiff was disqualified from holding or obtaining a driver’s licence from 19 July 1990 until further order of the Magistrates Court. It appears that this disqualification eventually was made to operate from 19 July 1990 until 29 January1996, but that did not occur until late 1995 at the earliest. In evidence, the plaintiff acceded to the proposition that he was disqualified from holding or obtaining a licence to drive a car or ride a motorcycle from about 1990 until April 1997. Later in his evidence, he sought to resile from that concession, but he agreed that at some stage after coming out of prison he knew that he did not have a South Australian driver’s licence and he had obtained a Western Australian one because he could not get one in South Australia. Still later in his evidence he said that he didn’t know whether, on the day of his accident, he held a then current driver’s licence to drive on public roads on South Australia. The criminal history of the plaintiff compiled by the South Australian Police Department was also tendered. That shows that the plaintiff had, before he went to prison in 1991, being convicted of two drink-driving offences and two offences of driving whilst under disqualification. In respect of each of the last two offences he was imprisoned for approximately one month. I find that on the day of his accident near Kadina the plaintiff knew he did not hold a then current driver’s licence entitling him to ride his motorcycle lawfully from Adelaide to Kadina. I find that he also knew that he had drunk sufficient alcohol during the run to Kadina, such that his blood alcohol concentration would have exceeded the legal limit. I find that he also knew that a further conviction for a drink-driving offence or for an offence of driving whilst disqualified would likely to result in a further term of imprisonment.

The other Gypsy Joker witnesses

I have not yet dealt with the evidence of the three members of the Gypsy Jokers who said that they saw the plaintiff as pillion passenger to Mr Atherton’s riding the plaintiff’s motorcycle when the pair left Paskeville just before the accident.
Mr Stuart Uren was an ex-president of the Gypsy Jokers. Mr Uren said that the group had stopped at Paskeville for a few drinks. A few of the group had had a few drinks at Port Wakefield before stopping at Paskeville. He said that the plaintiff was pretty inebriated at Paskeville, “just drunken behaviour”. He said in evidence-in-chief that he made the plaintiff get on the back of his own bike with Mr Atherton. He said that he made the plaintiff do that because he, the plaintiff, was too full. He was asked “Who did you tell not to ride their bike?”, and he answered “Garry” (the plaintiff). A few moments later in evidence he was asked:
“Q.... Who did you speak to about Mr Collie riding on the back of the bike, do you remember.
A.No. I don’t think there was too many left there. As I said, I waited for everybody to go and made sure they all got off.”

He said that he could recall that the plaintiff left Paskeville on the back of the bike that Mr Atherton was riding. Mr Uren said that shortly after leaving Paskeville he came upon the scene of the accident. He didn’t know what had happened until he got there. He saw the plaintiff lying on the tracks, ranting and raving, with a fair bit of blood on him. He said that he asked someone where the bike was and it was a long way away from where the plaintiff was. He remembers that Mr Atherton was at the scene. He was asked:

“Q.... Did you speak at all with Mr Atherton at the scene. I just want to know whether you spoke to him or not.
A.Not that I recall.”

He was later asked in cross-examination:

“Q.... Did you speak to Mr Atherton at the scene of what appeared to you to be an accident on the S-bend.
A.Not that I can recall. I was more concerned about Garry.”

He was also asked:

“Q. Did you speak with Mr Atherton when you got to Kadina.
A. Not that I can recall.”

In cross-examination, Mr Uren’s evidence was that he spoke to Mr Atherton (not the plaintiff) at Paskeville about the plaintiff not riding his own bike. Later he said that it was the plaintiff he spoke to, and later still he gave evidence that it was Mr Atherton that he spoke to.

Whilst it might be unfair to criticise Mr Uren unduly for his confused evidence as to whom he spoke at Paskeville, what I find difficult to believe is why, when he came upon the scene and found the plaintiff ranting and raving with what he described as a fair bit of blood on him with the motorcycle some distance away, and when his assessment was that the motorcycle had gone through a fence, he did not speak to Mr Atherton either to find out whether he was alright, or to find out what had happened. He apparently did not speak to Mr Atherton later at Kadina about either of those two matters. Even if there was a code amongst members of the Gypsy Jokers not to speak to police before clearance by the president, the code of camaraderie and friendship might have moved Mr Uren to speak to another club member about an accident if that person believed that other club member had been riding the motorcycle involved in what must have appeared to be a serious accident. This would be particularly so if the circumstances of the two club members being on the one bike were as Mr Uren deposed to as occurring only one-half an hour before the accident. I understood Mr Uren’s evidence at trial to be that he did not speak to Mr Atherton either at the scene or at Kadina regarding the accident. I did not understand his evidence to be that he did not recall whether or not he spoke to Mr Atherton at the scene of the accident or at the hotel at Kadina. His answer that he was more concerned about the plaintiff was consistent with my understanding of his evidence that he did not speak to Mr Atherton at the scene of the accident. His evidence as to whether or not he spoke to Mr Atherton at the hotel at Kadina was to like effect.
Mr Uren said that there were other occasions when the plaintiff rode pillion on another member’s bike when he had had too much to drink. It may be that Mr Uren has a recollection of seeing both the plaintiff and Mr Atherton together on one bike on another occasion and has convinced himself that the same had occurred when leaving Paskeville on the evening of the accident. In any event, I do not accept as reliable Mr Uren’s evidence as to what he said occurred on the evening of the accident. His evidence is not consistent with his not speaking with Mr Atherton later.
I also do not accept the evidence of Messrs Wenke and Williams where both said they saw the plaintiff on the back of his own bike with Mr Atherton riding when leaving Paskeville. Both gave evidence of seeing the plaintiff on the back of a motorcycle in circumstances where he had had too much to drink. I find that both men have confused those other occasions with the day of the accident, and have convinced themselves that they saw him on the back of a motorcycle on the day of the plaintiff’s accident on his run to Kadina. Both men had been on numerous runs with the Gypsy Jokers and I find that those included runs in the area that this accident occurred. Mr Williams accepted that it was difficult for him to remember the detail of all incidents that happen on all the runs that he has made with the Gypsy Jokers. I do not find that either of these witnesses sought to mislead me in giving their evidence, but I find that they are mistaken in their evidence as to whom was riding the plaintiff’s motorcycle on the evening in question.

Findings

I find that the plaintiff left Paskeville riding his own motorcycle. He had been drinking, probably at both Port Wakefield and Paskeville, such that at the time of the accident, some twenty to thirty minutes after leaving Paskeville, his blood alcohol concentration was 0.165mg per cent. I find that his ability to judge speed and distance, and his co-ordination, balance and eye function were significantly impaired. I find that the plaintiff lost control of his motorcycle on the roadway before the railway crossing and that he and the motorcycle crashed into the guardrail and the diagonal black and white sign adjacent to it. The motorcycle was probably not upright when it hit the guardrail. I find that on impact he and his motorcycle were catapulted over the guardrail. His motorcycle came to rest in the scrub beyond the guardrail and the plaintiff landed on his left shoulder, and thereafter rolled to the point near the railway line where he was when the ambulance officers and the police attended.
I find that a number of members of the Gypsy Jokers came upon the scene before the ambulance officers and the police, and that one of them rode into Kadina and telephoned the police who attended shortly thereafter with the ambulance.
I find that at some time after the accident, either at the accident scene or at the Kadina Hospital, it was decided (with the knowledge or at the instigation of the plaintiff) that the police would be told that Mr Atherton was riding the motorcycle when it crashed and that the plaintiff was pillion passenger. I find that it was known to the plaintiff and to Mr Atherton (and probably to other members of the club, including the then president Mr Brown), that the plaintiff had just finished several years of imprisonment for a serious criminal offence; that at the time of the run and the accident the plaintiff was disqualified from holding or obtaining a driver’s licence, including a licence to ride motorcycles; and that the plaintiff had previously served periods of imprisonment for driving whilst under disqualification and had two previous drink-driving offences. I find that in knowledge of these matters it was decided that Mr Atherton would claim that he was the rider of the motorcycle to avoid the serious consequences which would flow to the plaintiff if it was known by police that he was the rider of the motorcycle. Those consequences would have likely included a further term of imprisonment.
I do not find that this decision was made with a then intention to bring this claim. Probably it was not, and, because it was not, it was unnecessary for Mr Atherton to craft a careful description of what had happened to him had he been riding the motorcycle when it crashed. He surmised (as the police witnesses did) that the plaintiff had struck the guardrail and that he and his motorcycle had then been catapulted over it. For the purpose for which the lie was conceived and first told, it was sufficient for Mr Atherton say to police at Kadina and later to sign a statement to the effect that he was riding the motorcycle when it hit the guardrail. He sought in that statement to explain his lack of injuries by saying he rolled in the accident. When it came to the trial of this action, however, that version could not stand scrutiny, and I find Mr Atherton knew that and therefore he had to give a version inconsistent with his earlier accounts. I find that Mr Atherton knew that he could not have escaped serious injury if he had been on the motorcycle when it struck the guardrail, or if he had rolled off it at any time either before or after striking the guardrail. I find that Mr Atherton made up the version of the accident he gave at trial, and he made up the previous accounts he gave of the accident. I find he was not riding the plaintiff’s motorcycle when it crashed on 15 May 1993. I find the plaintiff was.
My finding that the plaintiff was riding his own motorcycle when he crashed is sufficient to dispose of this action but, in case I am wrong in that finding, I now consider the question of the plaintiff’s damages.

Damages

The plaintiff was born on 31 May 1959. He went to school in Victoria until third grade. He said he started driving trucks at 18 years of age. He said he started interstate truck driving at 19 years of age and drove trucks for 14 years but not continuously. That evidence cannot be correct because he later said that he stopped truck driving in 1984 when his daughter joined him in Adelaide and he commenced receiving a supporting parent’s pension. Some evidence of his taxation assessment notices for the years ended 30 June 1981 to 30 June 1987 were tendered. These show an average annual net earnings by the plaintiff in the four financial years prior to 30 June 1984 of about $8,000 per annum or approximately $150 per week. These figures are not very reliable as the evidence does not indicate how these “earnings” were comprised. The form of the exhibit makes it difficult to draw any conclusions about the other financial years referred to in it. No other documentary evidence was tendered which refers to any earnings by the plaintiff in the period either before the accident in May 1993 or before trial. A letter from the Australian Taxation Office discloses that the plaintiff did not lodge a tax return for the financial years 1987-1988 to 1994-1995, and I infer that the plaintiff has not lodged a tax return since 1994-1995 either.
Whilst he was receiving a supporting parent’s pension from 1984, the plaintiff said that every now and then he had driven a truck to Melbourne and to other places to get an extra dollar on top of the pension. He remained on a supporting parent pension, supporting his daughter, until 1990 when he went to prison. He was imprisoned for 12 years in May 1991 for the offence of wounding with intent. At that time he also received a sentence of life imprisonment for murder, with a non-parole period of 31 years. He was in prison, he said, for roughly 3 years until March 1993. Whilst in prison, an appeal against his murder conviction was allowed and a retrial was ordered. On his appeal against the sentence for wounding with intent his sentence was reduced from 12 years to 6 years, with a non-parole period of 4 years. He remained in prison on his conviction for wounding with intent until he was released in March, 1993. Prior to being charged with wounding with intent and murder, he had a number of convictions which included driving under the influence of alcohol (two offences), damaging property, possessing a firearm without a licence, driving whilst disqualified (two offences), possessing cannabis and giving a false name and address. These were between July 1989 and September 1990.
By about 1988 he was a member of the Gypsy Jokers. He said he hoped in the future to become a life member of the Gypsy Jokers and to be a member for another twenty years.
Between March 1993, when the plaintiff was released from prison, and May 1993, when the accident occurred, his daughter returned to Adelaide from Perth. She had stayed with her aunt in Perth during the time the plaintiff was in prison. When she returned the plaintiff went back on to the supporting parent’s pension. He remained on that pension looking after his daughter until she turned 16, which was some time in 1995. He was asked whether he had, since the injury, pursued work in the area of truck driving or other work. He answered “No - the young fella came over from Perth and I ended up back on the pension. I am still looking after him - he is 18 this month.” He later said that his son turned 16 in May of 1997 at which time he tried to get work and was trying to get his licence back. He gave evidence that he went to some depots looking for work but was unsuccessful. He commenced receiving a disability pension from a time about four months after May 1997. Apparently such a pension was granted to him on the basis of a combination of his epilepsy and the disability in his left shoulder which was the result of the accident in May 1993. He has remained on that pension since, and has not worked, subject to some matters to which I now refer.
He said that since 1992 he has driven interstate trucks on the side. He must be referring to times after the accident in May 1993 because he was in prison until March 1993. He said he wanted his commercial licence back because he thought he could find work driving trucks, and he said that he went to Perth with one of his mates “the other week” and “had to sneak in and drive while making sure no-one was around”. He said also that these days you are not allowed to change tyres and you are not allowed to tarp your trucks so you can do that (and I infer “that” to be all activities associated with loading, unloading and driving trucks) with one arm.

He said that since the accident he had purchased a 1996 Heritage Special Harley Davidson for $26,000. $17,000 was obtained from the sale of his own motorcycle and he raised the rest by making someone sell a car in order to give him money that he was owed by that person. He also said that other moneys were raised by “what you would call debt collecting”. He said that he would just ring up companies that owed other companies money and would ask them how come they haven’t paid. These amounts of money were from about $2,000, for which he would get $800 commission, and sometimes more than $2,000. The most he collected at one time was from a company in Melbourne when he collected $12,000. His commission was $6,000. That was in about 1997. He said that he had never had a hard debt to collect - he only ever had a few confused debtors. He explained that they seemed to him to be confused because they would say they are going to pay and they don’t. But when he got to their premises to find out how come they haven’t paid, the money is sitting there. He conceded that some of this debt collecting at times was risky, and sometimes he might have to be a bit stronger with the debtor on the follow-up telephone calls. He said that so far he has been lucky in his debt collecting activities. He was asked:
“Q.... Do you sometimes let people think that you might use violence on them to get the money.
A.What they think is up to them, you know.”
I also heard evidence of a time, which was suggested to be in late 1994, when the plaintiff was stopped by police. He apparently produced a driver’s licence with his photograph on it with an assumed name on the licence. He was charged with an offence. He agreed that that was at a time when he believed he was not legally able to hold or obtain a South Australian driver’s licence. At some time just after he was released from prison, he obtained a driver’s licence in Western Australia which was in his name but with a Western Australian address. He carried that with him when he drove in South Australia. He said that he obtained this licence “probably because I couldn’t get one here”. It was put to him that about two weeks after he was stopped by police, the police came to the house in which he was living and obtained two pay slips bearing the name “Harold J Collins” and a Harley Davidson owner’s card bearing the same name. That was the name which appeared on the driver’s licence issued in Western Australia which bore the plaintiff’s photograph. The plaintiff agreed that he “must have” had in his house in November 1994, pay slips bearing the name “Harold John Collins”. He agreed that Harold J Collins was an alias he used at that time. He thought he might have used other aliases at that time. The pay slips referred to were not further explored in evidence, but I infer that the plaintiff had earned some money in Western Australia by working under an alias.
The plaintiff also said in evidence that for some time now (I think years) he has had the use of a room at the clubrooms of the Gypsy Jokers at Wingfield. He also said that he has done work at the Gypsy Jokers clubrooms which also includes serving behind the bar and keeping the clubrooms clean and tidy. He told me he has not been paid for that work but he added that he didn’t pay for any of his drinks. By that I infer that he obtained free drinks in return for the work that he did at the clubrooms.
I am satisfied on the evidence that the plaintiff’s association with the Gypsy Jokers has been and is a very strong one and will continue to be so in the future. He does work for the club and receives certain preferential treatment by virtue of that work, including use of accommodation at the club. He has also engaged in activities for which he has received money which has not been declared either to the Department of Social Security or the Australian Taxation Office.

The plaintiff’s injuries in the accident of 15 May 1993

In the accident for which he claims damages, the plaintiff suffered dislocation in his left shoulder, significant pain in the mid-thoracic back region, chest pain, right arm pain and abdominal tenderness. He had multiple lacerations and abrasions. X-rays demonstrated a fracture dislocation of the left shoulder but no other major injury or significant neurological injury was found. The fracture of his greater tuberosity with a dislocation of the left shoulder was reduced. He was admitted to the Royal Adelaide Hospital for close observation. Further x-rays showed a displacement of the greater tuberosity and further treatment of his left shoulder was considered.
Dr Sandow has reported that on 17 May 1993 at approximately 11pm the plaintiff was noted to have a “funny turn” which was associated with a past history of epilepsy.
On 20 May 1993 there was a further operation to the plaintiff’s left shoulder under general anaesthetic. He made satisfactory progress and was discharged on the 24 May 1993. On 16 July 1993 it was noted on review at the Royal Adelaide Hospital that there was significant sensory loss in the distribution of the axillary nerve with possibly some minor posterior deltoid contracture. In November 1993 it was noted that the fracture was healing well, but there was no sign of muscle or sensory function of the axillary nerve and he was sent for neurological testing, which demonstrated (on 18 November 1993) complete left axillary nerve palsy. His shoulder was further explored on 21 March 1994 when he had the area of scarred and damaged nerve root excised and replaced with a nerve graft from his left calf.
When he was seen on 14 September 1994, Dr Sandow noted that there had been virtually no change in his left shoulder function and the axillary nerve and deltoid muscles did not appear to be working at all. Dr Sandow recorded that he had minimal pain. In May 1995, Dr Sandow thought that the chances that any substantial further nerve recovery would occur were very small, and he thought at that time there would be permanent residual impairment to a significant degree. He thought he would still have some use of his arm, although it would be well short of normal. In January 1996 Dr Sandow believed that the plaintiff had permanent residual medical impairment as a result of a nerve injury to his left shoulder, and he believed that to be in the order of 60% of the function of his shoulder. He considered that he was then fit for a range of duties, although he would be completely precluded from any which involved forward reaching or any overhead work. He expressed the opinion that he could possibly be able to carry out a range of bench-top type activities but because of the decreased muscle function he had virtually no forward reach.
In a report dated 29 September 1998 Dr Sandow expressed the opinion that there had been no substantial change in the function of the plaintiff’s left shoulder. His deltoid continued to be paralysed, and he had a significantly reduced range of active motion of the shoulder. He retained a good passive motion of the shoulder. Dr Sandow expressed the view that recent x-rays demonstrated a substantial deformity of the humeral head consistent with vascular necrosis of the humeral head. He thought that was a substantial change from x-rays performed in 1995, and “may hold a deterioration in longer term in relation to his shoulder function”. The plaintiff at that time told Dr Sandow that he found the mobility of his shoulder to be reasonably useful, and Dr Sandow did not believe that the plaintiff was interested in any further procedures, particularly one which would involve a fusion. Dr Sandow said that there was a chance that in the longer term his shoulder may progressively deteriorate where he has severe pain and may require some further procedure such as a shoulder fusion. His impairment was of the order of 60% of shoulder function. He said that if there is further deterioration a shoulder fusion is really the only option and his report states a cost of $7,200 for such an operation. He believed that a fusion was not indicated as at September 1998. He said that the plaintiff finds the available motion to be quite useful, and the pain was not particularly disabling. He said if the pain deteriorates, a fusion will be required, and he thought that was probably quite likely in the longer term. A satisfactory fusion in the first instance is not guaranteed. Its chance of success at the first operation was 80%. As at September 1998 he said that the plaintiff’s condition was relatively stable and his pain was at a level that does not require any further intervention.
The plaintiff said in evidence that he has refused further surgery on his left shoulder and he said that if he was told that he could have an operation to fuse the shoulder in position and that might relieve pain, he would not consider having such an operation in the future.
The evidence the plaintiff gave at trial regarding his disabilities were probably understated, particularly when he was asked to describe pain in the months immediately after the accident. He said in evidence-in-chief that he couldn’t really recall what pain he experienced whilst in hospital and during the early months after the accident. I think that that understatement was in part due to his personality which did not allow him to admit to suffering pain.
In more recent times I find that he has not suffered unduly as a result of his quite severely disabled left shoulder and arm, and that is consistent with what he has apparently told Dr Sandow. But I find that the pain that his left shoulder and arm causes him is likely to increase in the future, and that it is possible that at some time in the future it will become necessary for him to contemplate the fusion operation referred to by Dr Sandow and possibly to agree to have it. I make some allowance for that in an assessment for pain and suffering and for future medical expenses.
Had the plaintiff’s quite severe shoulder and left arm disability stood alone, then, theoretically at least, he has suffered a significant loss of earning capacity. I have already referred to some aspects of his pre-accident work history and lifestyle, and also to his post-accident work history and lifestyle. I turn now to consider the considerable body of evidence which was largely adduced by the defendant for the purpose of ultimately submitting that the plaintiff has in fact suffered little or no loss of earning capacity as a result of the injuries he suffered on 15 May 1993.

The plaintiff’s epilepsy

In his evidence-in-chief the plaintiff gave me relatively little information about the history of his epilepsy, and the episodes he has experienced over the years as a result of his epilepsy. He described the first “episode” as having occurred whilst he was in prison, another at the Royal Adelaide Hospital shortly after the motorcycle accident, and a third when he was riding his motorcycle at Gepps Cross about five years prior to trial (probably in April 1994). He said that as a result of that last episode his licence was withdrawn or cancelled. I return later to the question of the status of his licence because that answer was misleading. A similar history was given to at least one doctor he has seen for the purposes of this case (Dr Fewings), and it seems that he told Dr Marshall that he had become an epileptic following the motorcycle accident in 1993. These histories were clearly wrong.
I was asked by the defendant to find that the plaintiff’s evidence about his epilepsy and the histories he gave to doctors in particular, reflect adversely on the plaintiff’s credit. I think that it would be unfair to the plaintiff if I so found. There seemed to be considerable confusion in the plaintiff’s mind as to what constituted an epileptic episode. Such confusion was justifiable because of the evidence the neurologists Drs Waddy and Fewings gave regarding epilepsy. They said that there might be three stages to an epileptic episode and a patient may proceed from one stage to each of the stages beyond, but a patient need not necessarily do so, and each occasion may be different. The first stage was described as a simple partial seizure which presented itself by way of what was described by the plaintiff as a dream, and what was described by the neurologists as a feeling of deja vu or an aura. The next stage was a complex partial seizure in which the patient might lose consciousness briefly, or at least have a period where there was a loss of memory or recall as to what had occurred during the “loss of consciousness”. The final stage was a secondary general seizure, which I understand used to be described as a grand mal seizure, where fitting and unconsciousness was likely to occur. Each stage, together or separately, could properly be called an epileptic “episode”.
It was probably the last stage which the plaintiff was describing as having occurred only three times. I find that he probably significantly understated the number of such episodes. I do not find that he intended to deceive me in this regard. In the end his evidence was that the records were probably correct, but he could not confirm that they were because he could not accurately recall all those details.
As to what he told the doctors, the plaintiff conceded in cross-examination that he had given Drs Waddy, Fewings and Cormie an incomplete history as to his epileptic “episodes” and that he consciously did so in order to try and get his driver’s licence back.
Finally, I am satisfied that when he gave evidence, the plaintiff did believe that his epileptic condition had been far better in recent times than in the past. The evidence suggests that his epilepsy was very poorly controlled in the past, but that since 1994 it has been far better controlled by medication and probably some reduction by the plaintiff in his use of alcohol and drugs. I am not satisfied, however, that he has been as compliant with his medication, nor with abstinence from alcohol and drugs as he told Dr Waddy.

100 I am satisfied that the plaintiff’s own evidence is an unreliable source for any findings as to his epileptic condition. The information contained in the plaintiff’s medical records is much more reliable.

101 The plaintiff was seen in 1989 at the Modbury Hospital and was thoroughly investigated by a neurologist, Dr Norton, in respect of his epileptic episodes. Dr Norton thought the plaintiff had temporal lobe epilepsy.

102 He was seen again at the Modbury Hospital in late 1991 by Dr Helen Waddy, neurologist. He was referred to Dr Waddy by the Medical Officer at Yatala Labour Prison for assessment of “funny turns”. The plaintiff told Dr Waddy that he had started to have dreaming episodes when he was only 8 years old and, whilst they had gone away for a while, they had come back nine years previously and continued ever since. They tended to occur when he was bored or overtired. He started off feeling sweaty and his mouth filled with water. He then went numb down his right arm, was unable to walk properly, and did not remember what had happened when it was finished. The episodes lasted anything from ten seconds to two or three minutes and he had the feeling of deja vu which related to a place in Victoria. He could have five episodes a day or go several weeks without any episode, and he often got a headache afterwards. Dr Waddy thought then that it was likely that he had temporal lobe seizures. Dr Waddy recommended he start on Carbamazepine, and although she expressed a wish to review him after he had been on medication for a while, that did not occur. She did not see the plaintiff again until 16 March 1994.

103 The plaintiff said in evidence that he took a tablet each day whilst in prison, although he said that he did not take any medication for some time after he was released from prison. It seems that he was put on some medication by the Royal Adelaide Hospital after what was apparently a seizure a couple of days after the accident. It is likely that the time at which he was not taking any medication was in the approximately three months between his release from prison in March 1993 and his motorcycle accident in May 1993.

104 In January 1994, the plaintiff was referred by his general practitioner Dr Cormie to Professor Thompson, a neurologist at the Royal Adelaide Hospital. In his letter of referral, Dr Cormie told Professor Thompson that his patient had been having grand mal attacks. He was concerned that the plaintiff was still driving and that he was not a good medication taker. He was seen by Professor Thompson on 8 March 1994, at which time the plaintiff described a long history of epilepsy where the attacks consisted of minor and major seizures. His first warning of an impending attack was excessive perspiration and salivation which was then followed by “dreams” consisting of recollections of things from the past and memories so vivid that he felt that he was there. He then developed speech arrest and the attack may stop at that stage or progress to a major seizure. The major seizures began with shaking of the right hand followed by extension and stiffening of the whole body, gritting of the teeth and then generalised limb jerking. He may lose consciousness for up to twenty minutes afterwards. He has no recollection of the later events. The major seizures had occurred irregularly over the years but the minor seizures had been present most of the time. He told Professor Thompson that the frequency of those minor attacks had lessened since he had stopped taking amphetamines. He had said that he had started Phenytoin four months previously. He had said that he drank alcohol episodically (in binges) and occasionally used other recreational drugs.

105 The plaintiff was reviewed by Professor Thompson in August 1994 and he described two major seizures since March 1994, both occurring in the setting of extreme fatigue and after an alcoholic binge. He said he continued to experience frequent minor seizures. Professor Thompson thought it was likely that most of his major seizures had occurred at times of alcohol excess, fatigue and possibly drug non-compliance. It seems that the plaintiff was not seen further by Professor Thompson.

He had, however, on 16 March 1994, been back to see Dr Helen Waddy. On that date she has noted episodes of complex partial and generalised seizures had occurred in the past. In January 1995 Dr Waddy reported to a general practitioner Dr Brogan that she had had quite a long conversation with the plaintiff about epilepsy, its origin, triggering factors and preventive factors. She thought the plaintiff had a better understanding of the condition, and he was going to make an effort to reduce his alcohol consumption further. She had suggested a change of drugs from Dilantin to Carbamazepine. She started the dosage at 300mg per day. That dosage was gradually increased by Dr Cormie until at trial Dr Cormie was prescribing 1200mg of Carbamazepine daily, although the plaintiff said that he had chosen not to take that full dosage and was only taking 800mg per day. Dr Cormie’s evidence was that the dosage was increased gradually to ensure that the plaintiff’s blood levels were within the therapeutic range. The dosage currently taken by the plaintiff was described by Dr Fewings as high.
By letter dated 19 September 1995, solicitors acting for the plaintiff wrote to the Registrar of Motor Vehicles regarding a court order made on 19 July 1990 by which the plaintiff’s licence was purported to be disqualified until further order. That related to an ordinary licence to drive a motor vehicle. There had been, earlier in 1995, an application on behalf of the plaintiff to remove that licence disqualification. It is not necessary to trace the rather tortuous path of this application but the ultimate effect of what happened was that the plaintiff is now recorded in the register of licences as having been disqualified from 19 July 1990 until 29 January 1996 pursuant to s47B of the Road Traffic Act (PCA offence), and as having been disqualified from 7 September 1990 to 6 September 1994 pursuant to s47 of the Road Traffic Act (driving under the influence). As at the time of the motorcycle accident the register stated that the plaintiff was disqualified from holding or obtaining a driver’s licence indefinitely from 19 July 1990.

108 Before the plaintiff could drive after 29 January 1996, it was necessary for him to make an application for a licence. He probably did so in January 1996. In his application he answered a question whether he suffered from any type of epilepsy with the answer - “No”. That was an unusual answer because his application was either accompanied by, or was supported by, a certificate from Dr Cormie which stated that he was a known epileptic although he had not had an epileptic fit since May 1995. Dr Cormie expressed the opinion that he felt that the plaintiff was then able to resume driving of a motorcycle or car. The application was also accompanied by a handwritten letter to which was attached the medical certificate of Dr Cormie just referred to. This letter was signed by Bob Mogg of Prospect. It was not explained who Bob Mogg was, but Mr Mogg told the Registrar of Motor Vehicles that the plaintiff had always been under the care of Dr Cormie and had never consulted a specialist about his condition. That information was clearly wrong because the plaintiff had consulted a number of neurologists regarding his condition.

By letter dated 19 February 1996 the Registrar of Motor Vehicles wrote to the plaintiff saying that a report from a neurologist was required before a licence could be issued. Dr Waddy wrote to the Registrar on 18 March 1996 referring to the plaintiff as a patient of hers who suffered from temporal lobe and secondary generalised seizures which in the past had been triggered by alcohol and poor drug compliance. She said that in the last year the plaintiff had moderated his habits considerably, and had given up alcohol for over 13 months, during which time he had had no seizures whatsoever, either generalised, simple or complex partial. She informed the Registrar that although strictly he would not be due to have his licence reinstated until February 1997 (that is two years after his last seizure which was minor), she thought his chances of having further seizures now his compliance was regular and alcohol had been removed were quite low. She indicated that the Registrar might consider restitution of his licence perhaps in the middle of the year (that is 1996).

110 The plaintiff was issued with a licence to drive a car and motorcycle in April 1996 based on the report of Dr Waddy. It was subject to a further report from Dr Waddy in 12 months’ time.

Dr Waddy wrote again to the Registrar of Motor Vehicles on 4 April 1997 indicating that the plaintiff had refrained completely from drinking and that it was then two years since he had had a seizure. She informed the Registrar that she had told him that she had given him his licence back on the condition that he continues his Carbamazepine and completely abstains from alcohol.

112 Dr Waddy gave evidence about restrictions on drivers who are epileptics. The effect of her evidence was that an epileptic may obtain a licence to drive an ordinary motor vehicle if that person is free of any seizures for two years. A commercial driver’s licence, however, has different regulations. A conditional commercial licence may be obtained if a patient is seizure-free for five years whilst not on any anti-convulsant medication, or had a past single seizure or cluster of seizures due to exceptional and non-repeatable circumstances. She said in the plaintiff’s case it could only be that he had a cluster of seizures due to exceptional and non-repeatable circumstances, and that those circumstances were alcohol consumption. She said in evidence that, on the history that she had, the plaintiff’s prospects of getting a commercial driver’s licence was poor but not strictly impossible. That was based upon a history she had of him not taking any drugs or alcohol since February 1995. In addition, it was based upon a history of possibly some simple partial seizures but nothing more serious than that. It was also based upon compliance with medication. In his evidence the plaintiff told me about an episode in Perth which he described as a dream and about which he apparently told Dr Waddy. However, he told her of that episode in terms which caused her to categorise it as a simple partial seizure based upon an episode of drinking. The plaintiff’s evidence was put to Dr Waddy and she then stated that it was probably a complex partial seizure and may not have been alcohol-related. Had she gained that impression when she reviewed the plaintiff in March 1999, she may well have restricted him from driving even a motor car or motorcycle. She could not say for what time she might have restricted him, but if she had been given a history of him taking “speed” in late 1997 (which the plaintiff had given evidence of) then it may have been a longer rather than a shorter period for which he could not drive. She said that if she could not be satisfied that she had a full and correct history she would restrict his driving for two years. She said that there would be no prospect of Mr Collie getting a commercial licence if she could not rely on the history given to her. She said that a patient can be more susceptible to an epileptic episode even if the patient missed a single dose of medication. She said that over-tiredness could bring on an episode.

113 The plaintiff said that much driving could make him tired. He also said that he sometimes missed taking his medication and, more importantly, he said that he has told people like Dr Waddy, Dr Fewings and Dr Cormie that he hadn’t had dreams for a long time, even though he had, in order to get his licence back. Dr Waddy was not asked, but I am prepared to infer that if she was informed of that evidence she would form the view that she is unable to rely on the plaintiff’s history to her.

114 On the basis of this evidence, I find that it is probably unlikely that the plaintiff will ever obtain a licence to drive commercial motor vehicles. I also find that it is likely that he will be unable to maintain an ordinary driver’s licence for extended periods. In this finding I take particular account of Dr Waddy’s evidence as to what restrictions she would place on his ordinary driver’s licence in the event that she obtained an unreliable history, or in the event that she was not satisfied that she had obtained a reliable history.

115 There are other factors, unrelated to the plaintiff’s epilepsy which will, in the future, impact upon his consistently retaining an ordinary driver’s licence. In February 1999, the plaintiff was disqualified from holding or obtaining a driver’s licence because he exceeded a certain number of demerit points for traffic offences. The evidence is that between June 1997 and January 1999 the plaintiff committed four speeding offences, two disobey traffic lights offences, one fail to keep left offence, and one fail to wear a motorcycle helmet offence. He appealed against the disqualification. His appeal was allowed on 18 March 1999 by a Magistrate, who ordered that the disqualification be removed and the aggregate number of demerit points recorded against the plaintiff be reduced to 10.

By letter dated 22 March 1999, the plaintiff was informed that a consultative committee in the office of the Registrar of Motor Vehicles was, on 22 April 1999, to consider the plaintiff’s recent driving record which showed an accumulation of 18 demerit points in a period of ten months. The plaintiff was invited to make written representations. He was informed by letter dated 28 April 1999 that the consultative committee had noted that he had not provided written representations and that the committee had, on 22 April 1999, recommended that he be issued with a driver’s licence subject to provisional conditions for a period of 12 months. His then current driver’s licence was cancelled from the date of the Provisional licence.

117 I find on this evidence, coupled with the evidence regarding his epileptic condition, that it is highly unlikely that the plaintiff will maintain his ordinary driver’s licence at all times in the future.

Injuries to the plaintiff’s knees

118 The plaintiff said in evidence that he has had trouble with both of his knees for as long as he can remember. His problems stem from playing football in his youth and are also the result of at least two quite serious motor vehicle accidents in the late 1980s. The first occurred on 7 August 1988 when he not only damaged his right knee but fractured his pelvis and suffered other fairly severe injuries. The second occurred on 28 April 1989 when further damage was caused to his left knee. Just prior to the later accident in 1989, the plaintiff was admitted to Modbury Hospital where a tear of his anterior cruciate ligament in his right knee was diagnosed and treated with arthroscopy and menisectomy.

119 There were surgical procedures also performed on his left knee and these were done in the Modbury Hospital in December 1990. They included removal of a loose body from the left knee when some osteo-arthritis of the patella was also noted.

The plaintiff saw orthopaedic surgeon, Dr Pohl, on 27 October 1992, at which consultation he stated he had been involved in a motor vehicle accident on 28 April 1989 when his left knee had been injured. He told Dr Pohl that after a procedure on his left knee at Modbury Hospital (which he thought was in 1989, but was probably in 1990) he reported to Dr Pohl that he had been trouble by continued symptoms ever since, which included pain, aching at night, swelling, clicking, instability and “giving way” of the knee. He told Dr Pohl that he wore a calliper at home. He said he could not run because his knee felt as if it would give way even if he jogged on it. It swelled with excessive walking. He told Dr Pohl that he did not think he would be fully up to returning to work as an interstate truck driver and stated that his left leg was most important for clutch control. He said he could not kneel on his left knee and his left knee interfered with his sexual ability. Dr Pohl concluded that clinically the plaintiff had degenerative osteo-arthritis of the left knee predominantly affecting the lateral patello-femoral joint. There was also osteo-arthritis in the medial compartment. Dr Pohl then thought him unfit for his previous work as an interstate truck driver and that he would only be fit for work of a light physical nature not involving kneeling or heavy lifting.

121 Orthopaedic surgeon Dr Brown gave evidence that he has had contact with the plaintiff since the late 1980s and has treated both of the plaintiff’s knees. He said he believed that both the plaintiff’s knees have been getting worse gradually since the late 1980s. Dr Brown gave evidence of a review of the plaintiff that he had conducted in January 1990. He found then that his left knee significantly interfered with his activities of daily living, particularly with use of steps and lifting. He then had the view that the plaintiff would have difficulty driving trucks, particularly associated with the use of the clutch. He would have difficulty walking other than short intermittent bursts of walking. He thought he would need to sit from time to time and would have difficulty traversing uneven ground. He would not recommend that he jump in and out of big transport vehicles.

Both the plaintiff’s knees were arthroscoped at the Modbury Hospital on the 21 March 1997 and they showed that the plaintiff had severe degenerative changes in his right knee and significant changes to his left knee. His left knee was not quite as bad as his right. The changes were so advanced that neither knee was amenable to reconstructive surgery, although Dr Brown referred to some new techniques which might be worth trying in the future. The plaintiff was referred in April 1997 for assessment by orthopaedic surgeon Dr Atkinson for significant knee problems, although there appears to be no further record of him attending Modbury Hospital before trial.

123 Dr Brown said that both the plaintiff’s knees were going to degenerate further with the passage of time and probably both would eventually require knee replacement when his pain became so severe and his function became so poor. He did not say when knee replacements might occur although he did say that within five or ten years of replacements he may require further replacements.

124 He said that when he last reviewed the plaintiff in 1997 he thought that he was capable only of medium to light processing work where that work involved an ability to sit. He was not able to work on uneven or irregular surfaces and was not fit to drive vehicles in the transport industry. He thought that he might be able to do light driving if that did not mean that he had to get in and out of the vehicle too much. He said that with knee replacements he could do more work but he could not do heavy manual or physical work involving heavy lifting, jumping or pounding of the joints. Such activities would loosen the prostheses.

125 Dr Brown expressed the opinion that the plaintiff is currently suited for the sort of work that he was told that he was doing at the clubrooms of the Gypsy Jokers. He thought that he needed a sympathetic employer. He thought that depending upon the plaintiff’s personality he would need a mild to strong oral analgesic on a daily or bi-daily basis depending upon his activities.

126 Based on this evidence, I find that the plaintiff has suffered quite severe limitations in his daily activities as a result of his knee problems at least since 1990. These problems have continued to worsen over the years since that time such that he is likely to require knee replacements at some time in the future. I find that his earning capacity has been seriously compromised by his knee conditions at least since 1990 and probably before. His knees will continue to compromise his ability to earn income to a significant degree.

Conclusion on damages

127 I was asked to assess the plaintiff’s damages for economic losses on the basis that he had chosen a lifestyle which comprised doing no paid employment, living off social security of some sort, and pursuing the activities associated with his membership of the Gypsy Jokers. I was asked not to accept the plaintiff’s evidence that he chose the supporting parent benefit only so long as he was required to support his two children until they turned 16 years of age. I was asked to reject that evidence because there were many times, and sometimes extended times, when the plaintiff was not there to support and care for his children as he was either in hospital, in prison, or on club activities. I was also asked to find that the plaintiff has only made an attempt to obtain a commercial driver’s licence for the purposes of the trial of this action.

128 Although I am not prepared to find that the plaintiff would have chosen never to work in his lifetime, I do find that he has chosen not to exercise any earning capacity he had before trial, and he would have so chosen even had the accident in May 1993 not occurred. The plaintiff did not suggest that he would have sought work after May 1993 had the accident not occurred before his son turned 16 years of age in mid-1997. Shortly after that time he commenced on an invalid pension, apparently as a result of a combination of his epilepsy and his left shoulder injury. Dr Cornie’s evidence was that he did not have a significant involvement in treating, or even being consulted about, the plaintiff’s knees. I find that, had the accident in May 1993 not occurred, the plaintiff would have sought and been granted an invalid pension in about mid-1997 based on his epilepsy and the disabilities in both of his knees. I find that the plaintiff would not have exercised any earning capacity he had pre-trial even if the accident of May 1993 had not occurred.

Accordingly, the plaintiff has suffered no economic loss pre-trial as a result of the injuries he received in the motorcycle accident of 15 May 1993.

130 I also note the plaintiff’s evidence that he has received monies from debt collecting, from driving transports, from the Gypsy Jokers (at least in kind), and under an alias. I find that his pension has been supplemented to his satisfaction by these moneys.

131 As to the future, I do not find that the plaintiff would never have exercised such capacity to earn as he may have had if he had not suffered the injury to his left shoulder and arm in the accident in May 1993. As indicated earlier in these reasons, that injury was quite a serious one with significant consequences to the plaintiff’s use of his arm. He has, however, been able to ride his motorcycle and drive other vehicles (apparently including heavy vehicles) with that severe disability.

132 I consider that the plaintiff has lost some earning capacity as a result of the disability of his shoulder and arm which he might have exercised in the future. The prospect that he would have exercised that capacity, and the prospect that he would have been able to find work consistent with his disabilities other than those of his left shoulder and arm, are such that any allowance for future lost earning capacity must, I think, be very modest indeed. I would allow $15,000 for future loss of earning capacity.

133 I was provided with copies of a number of awards and some actuarial tables regarding superannuation. I do not find it possible or appropriate to have regard to that material in assessing a future lost earning capacity. I only allow a very modest lump sum for what I find is a very small chance that the plaintiff would have exercised after trial any limited capacity to earn that he might have had in view of all those matters affecting his capacity to earn that I have referred to earlier, had the accident in May 1993 not occurred.

134 The serious nature of the shoulder injury he did suffer in the accident of May 1993 cannot be denied. He is left with a significant disability in his left arm, although apparently that does not currently cause him significant pain. I have indicated earlier that I think that the plaintiff understated the pain he suffered in the months immediately after the accident and I have regard to the medical evidence that he might suffer increased pain in future years. He has said that he does not intend to have further operative treatment on his left shoulder but that view may change. I make some allowance for the cost of that treatment. I also make some allowance for some analgesics that he may require as a result of pain in his left shoulder, noting however that such analgesics may be necessary anyway as a result of his deteriorating knees.

135 For non-economic losses I assign the number 20 on the scale referred to in s35a of the Wrongs Act, 1936, which, when multiplied by the appropriate multiplier of $1,390, gives a sum of $27,800 for non-economic detriments.

136 I award the sum of $2,500 for the possibility of future surgery on the plaintiff’s shoulder, and a lump sum of $500 for future medication and for possible future attendances on general practitioners and physiotherapists for treatment of his left shoulder.

137 Special damages were agreed.

[1999] SADC 77

8 July 1999