Con Condopoulos v Insurance Australia Limited trading as NRMA Insurance

[2017] NSWDC 218

District Court

New South Wales

Medium Neutral Citation:	Con Condopoulos v Insurance Australia Limited trading as NRMA Insurance [2017] NSWDC 218
Hearing dates:	24 July 2017
Decision date:	28 July 2017
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	Ex tempore
Catchwords:	Procedural and other rulings
Category:	Principal judgment
Parties:	Con Condopoulos (Plantiff)   Insurance Australia t/as NRMA Insurance (Defendant)
Representation:	Counsel: Mr Rohan de Meyrick (Plantiff) Mr Anthony Renshaw (Defendant)   Solicitors: Mr B Cortese (Plantiff) Ms B Casado (Defendant)
File Number(s):	2014/00051544

Judgment

1. HIS HONOUR: The Court in this case, having observed the relatively young adult plaintiff showing restriction of rotation of neck and a clawed left hand, and hearing of his other significant mental as well as physical challenges, cannot but feel sympathy for him. Weighing heavily within that moral and compassionate grasp of his claim is that the subject motor vehicle accident involved the death of one of his best friends, Mr Hez Soran. They rode together upon the plaintiff's large and powerful motorcycle at a speed of 120 kilometres per hour, along River Road, Greenwich. The incident occurred at about 1am on 19 February 2011. They were both 21 years of age. The section of River Road was a 50 kilometre per hour speed zone, suburban secondary road. There is no direct evidence of the mechanism of the collision.

2. In addition to the above factors, the agreed facts are that River Road was winding and hilly and that shortly before the crash police radar detected the motorcycle pass at 120 kilometres per hour in the opposite direction to that then attended by police at a random breath testing station. At a crest of River Road, at the intersection with Greenwich Road, the motorcycle became airborne for 25.9 metres, before crashing explosively on landing beyond the intersection.

3. The sole liability issue in the case was whether the evidence proved on

4. The balance of probabilities that the plaintiff was the pillion passenger.

5. In these reasons I use "driver" to mean the person in control of the motorcycle. There is no dispute that the collision resulted from the negligence of the driver. Obviously, either Mr Soran or the plaintiff was the driver. The defendant pleads contributory negligence of the plaintiff in the event that the Court finds that he was the pillion passenger.

6. The plaintiff claimed to have no recollection of events between some hours before the collision and a time in hospital after the collision, which he understood to be, but was uncertain as to its timing, about a week later. The plaintiff claimed to last recall his friend, Mr Denaro, picking him up from his parent's home, at which he lived, to take him to a party for Mr Denaro's god-sister. The evidence of Mr Denaro placed that time at about 8pm on 18 February 2011.

7. Each party tendered expert crash analysis evidence. There was no objection to the reports, and neither expert was required for cross examination. In opening, counsel for the plaintiff, after introducing the expert engineers as Mr Jamieson for the plaintiff and Mr Anderson for the defendant, candidly described the reports as not determinative of the question of driver and pillion and passenger. He said at transcript p 4:

"Yes that is, and the geography or the geometry of that intersection is such that it appears at that speed an accident was inevitable."

8. Both agree that there was some observations by the police when they arrived at the scene as to where each of, if I can use the rather callous description but it is practical, the three objects involved in the one vehicle accident were the two passengers and the vehicle itself, and both experts looked at the photos and read the police statements, et cetera, and they have observed that the furthest away from the intersection was the bike, followed by Mr Soran, and then the closest to the intersection was Mr Condopoulos. Both experts agree that you really could not read a huge amount into that. They observe that sometimes when a bike hits a stationary object like a car one expects the pillion to be thrown further because they are flipped over the back as it were. They both agreed that this was not that kind of accident. It was more of an explosive event where the bike became airborne.

9. The one minor difference between the two reports, I suppose, is that Mr Jamieson seems, I anticipate you will observe, to think that even if it was not one of those kinds of accidents where the bike flips, that perhaps prima facie the fact that Mr Soran ended up closer to the bike or further away from the take off point might say something about the fact that he was more likely the rider. I am not going to suggest he states that point with the greatest of confidence, and ultimately both experts are very much unsure as to what one can read, I think, into the circumstances of the scene.

THE INCIDENT

10. The plaintiff relied upon the expert report of Mr Jamieson dated 2 September 2016 Exhibit F. Having reviewed police technical analysis Mr Jamieson observed that the likely launch speed of the motorcycle was 121 kilometres per hour. I note that this is approximately the same speed as the motorcycle was detected on lidar when noticed by police.

11. At this point I choose to deal with the submission made by the plaintiff at the close of the case. The plaintiff submitted that the Court would observe a persuasive difference in the motor traffic records of the plaintiff and of Mr Soran such that the Court would determine Mr Soran to be in the habit of more reckless driving than the plaintiff. I deal with that submission in more detail and more specifically later.

12. The ancillary submission made by the plaintiff was that because of those characteristics of traffic record Mr Soran would more likely have sought to avoid apprehension by police and therefore to have ridden more recklessly if one assumes that Mr Soran noticed police on the opposite side of River Road had detected his speed. That conjecture is not obvious, but common experience may suggest it to be realistic and acceptable.

13. There is simply no evidence that the motorcycle driver was aware of pursuit. But in any event these considerations do not amount to anything more than speculation, particularly in circumstances where the expert evidence is, as I have just referred, that the launch speed of the motorcycle at the time of the accident was about the same speed as when the motorcycle passed the police. There is simply nothing to indicate that the motorcycle was being ridden evasively of police.

14. Returning to Mr Jamieson's opinion, Mr Jamieson concluded:

"In summary it is considered quite possible (if not probable) that Mr Condopoulos was the pillion in this instance, although it would be ultimately subject to balancing the evidence in total."

15. The plaintiff points to this conclusion as weighing in favour, with other evidence, of finding as a fact that the plaintiff was the pillion passenger, even though Mr Jamieson was unable to opine that to be probable.

16. The defendant relies on the report of Associate Prof Anderson dated 7 June 2017, exhibit 5. The only difference in reasoning between Mr Jamieson and Mr Anderson of significance is that whereas Mr Jamieson appeared to have conceded diminished value in application of the model observation that the pillion passenger is thrown further by the lever action of the motorcycle in the different bike into car scenario, yet he weighed the possibilities toward approaching a probability that the plaintiff was the pillion passenger; Mr Anderson points to what is, in my respectful view, the illogicality of Mr Jamieson's reasoning. I prefer the opinion of Mr Anderson that given the circumstances were not of that model or typical motorcycle impact into something such as a car, the position of the bodies could not be interpreted by reference to that other and different scenario.

17. In addition I note that Mr Jamieson's report discounts this hypothesis to a point of no persuasive value, and provides no reasoned factual basis supporting his above quoted conclusion.

18. Indeed Mr Jamieson's report properly exposed the following facts which weigh against other than an equivocal finding by the engineers. As reasoned by Mr Jamieson:

1. in the model bike into car collision the pillion is catapulted such that the rest positions by distance from the impact are in the order the motorcycle, the rider, and the pillion. That is, the pillion is the furthest from the point of impact. In this instance, the rest positions were: the plaintiff; Mr Soran; and then the motorcycle furthest from the impact, exhibit F, p 17.

2. After coming to ground and skidding and scraping, the motorcycle and the occupants traversed the northern curb of River Road, across grass and concrete of the footpath towards a bush rock wall, upon which there were scrape marks, and a signpost was knocked over. Then the two bodies and the motorcycle continued to rotate and tumble along the footpath at Anglo Lane, where the plaintiff came to stop, approximately 20 metres beyond the rock wall. Then Mr Soran came to rest, deceased, on the grassed area of the footpath, a further seven metres east, and finally the motorcycle came to rest on the grass and concrete of the footpath, a further five metres from Mr Soran, exhibit F, p17-18.

3. Mr Jamieson indeed conceded that, "There did not appear to be any action of the motorcycle which emulated (model scenario)." Instead, he observed that the high impact would be analogous to an explosive event with multiple rolling and tumbling actions, combined with exploding debris and road furniture such that, "The modelling or prediction of the rest positions of the involved objects [would be] extremely difficult," (words within brackets inserted). Even the computer simulation systems available within Mr Jamieson's firm, he said, would not make it reasonably possible to simulate the events of this incident, "given the multiple impacts," exhibit F, p 18.

19. Having made these concessions, in his summary and conclusions, Mr Jamieson offered no factually based rationale for his conclusion that it was quite possible, if not probable, that the plaintiff was the pillion passenger. That Mr Soran's body went a few metres further than did the plaintiff, is not explained by him to be of identifiable significance in the explosive scenario, followed by multiple impacts. In my opinion, the expert engineering motor vehicle reconstruction opinion evidence does not of itself provide evidence positive of an inference that the plaintiff was the pillion passenger. The evidence was equivocal.

20. The plaintiff points to other evidence in support of his submission that the evidence viewed cumulatively is positive of a reasonable and definite inference that the plaintiff was the pillion passenger: Jones v Dunkel (1959) 101 CLR 298; Bradshaw v McEwans Pty Limited (1951) 217 ALR 1.

21. The plaintiff said in oral evidence that he travelled River Road most days, for approximately two years prior to the incident, and was very aware of the danger presented by its winding and hilly nature, and in particular, the danger of the crest of the road at its intersection with Greenwich Road, the site of the incident.

22. The plaintiff pointed to the very recklessness of the driving which caused the crash, in particular the plaintiff's submission is that: to drive the motorcycle at 121 kilometres per hour over the crest of River Road and through the intersection with Greenwich Road at the crest, was so reckless as to be not in keeping with the plaintiff's awareness of the danger.

23. He said that he would not have so driven. The plaintiff points to circumstantial evidence of the plaintiff's motorcycle driving record, which when compared to the motor traffic record of Mr Soran, it was submitted, suggested it be more likely that Mr Soran was the driver. Simply put, the plaintiff says Mr Soran's traffic record is proof that he was more reckless and more likely to flout road rules.

24. As I have said, it was further put that Mr Soran would have been more likely to drive in a manner so as to avoid apprehension by the police. This submission I do not find persuasive, but rather, pure speculation on the evidence of the case.

25. At this point I mention that River Road did not continue in an immediately straight direction over the crest at Greenwich Road, but on the other side of the crest, River Road diverted some degrees of direction. This is also a factor pointing to the dangerousness of driving as this motorcycle was driven, and is therefore relevant to this part of the consideration of the plaintiff's case.

26. Plaintiff counsel properly described as inevitable the consequence of the crash, given that the speed at which the driver of the motorcycle engaged the crest.

27. The other circumstantial evidence said to be consistent with the plaintiff being the pillion passenger, and to which his counsel pointed is as follows:

1. The plaintiff evidence amounted to him saying that because of his familiarity with the road and his awareness of the danger, he would not have driven a motorcycle in that manner;

2. The plaintiff had been licensed, firstly as a provisional motorcycle rider since 19 May 2009, and said that he had never driven a motorcycle with a pillion passenger because he was aware of the dangers;

3. the plaintiff gave evidence that he had previously permitted Mr Soran to drive the plaintiff's motorcycle with the plaintiff as a pillion passenger on at least two occasions, and had permitted Mr Soran to ride the plaintiff's motorcycle alone at least once.

4. The plaintiff said he believed Mr Soran was a licensed motorcycle driver;

5. The evidence of Mr Denaro was that when driving the plaintiff and Mr Soran home from the party, he overheard the plaintiff and Mr Soran discussing continuing their night by travelling to the Oaks Hotel, Neutral Bay, in order to meet some female work colleagues of the plaintiff, and that in that conversation Mr Soran was the promoter of taking the motorcycle for a "cruise".

28. Plaintiff counsel put in summary the inference the plaintiff submits arises from this circumstantial evidence, as follows:

"I just wish to emphasise that point about the plaintiff's evidence, which, if your Honour accepts, and I will address your Honour on credit issues in a minute, but if your Honour accepts the plaintiff, he had never ridden with a pillion before. Therefore, the scenario here is that, on his very first venture with a pillion, he not only chooses to drive at 120 kilometres an hour, when we know he'd had a few drinks but was far from profoundly inebriated, he chose to drive at an incredibly high speed, even though he tells you that he didn't drive with pillions before and didn't feel comfortable with that concept. Also, he chose to drive through at what I describe as a suicidal speed through this very dangerous intersection, when he knew it intimately, at a speed not just that possible to lose control, but inevitable, because the bike took off. It seems highly implausible.

29. That, on its own, may not be enough, but when you put into the mix some of the other pieces of information, like the enthusiasm with which Mr Soran wanted to take the bike out that night, and it seems that he raised the idea of taking the bike for what he described as a 'cruise'. So, for Mr Soran, according to Mr Denaro's evidence, it wasn't just about going to the Oaks to meet some girls, but part of the attraction was the means of getting there, or the manner of getting there, and that was, he wanted the enjoyment of being on the bike. You know what the previous experience of Mr Soran was of being on that bike, and that was, namely, as the rider of it. Putting that together with what we know about the respective records, and we can see a penchant in Mr Soran not just for minor traffic infringements, but for infringements that reflect a disregard, a conscious disregard, for the road rules.

30. One is left in a situation where there is a compelling inference that favours one conclusion over the other.

31. I deal with the qualitative impression of the motor traffic records and, in particular, with Mr Denaro's oral evidence (at transcript p 130, line 26) where he recounted the conversation between the plaintiff and Mr Soran about going for a "cruise" below.

MEDICAL EVIDENCE RELEVANT TO LIABILITY AND EVIDENCE OF ADMISSION

32. The ambulance report, exhibit I, records that the plaintiff was conscious and alert when found. The ambulance officer author recorded: "? Confusion (does not know if he was the rider or pillion)". The ambulance officers were not called in evidence. Counsel agreed that the entry is most sensibly to be read not as a recording of a finding or observation of confusion but as raising a query as to whether or not the plaintiff was confused, in consequence of the ambulance officers having found the plaintiff to be conscious and alert but to state that he did not know if he was the rider or the pillion passenger.

33. The plaintiff was given high flow oxygen and morphine, along with other treatment, at the scene. The plaintiff was found wearing a helmet. The ambulance report recorded his Glasgow Coma Scale ("GCS") score was 14/15.

34. After arrival at Royal North Shore Hospital at about 01.30 hours, 19 February 2011, the plaintiff was assessed as drowsy, but rousable to voice and pain, (exhibit J). Royal North Shore Hospital (RNSH) clinical notes record a query as to whether he had suffered loss of consciousness but assessed him as pupils equal and reactive to light ("PEARL") and GCS 15/15. It is recorded in the secondary triage survey that the plaintiff "can't recall events". Counsel agreed that this is a reference in secondary survey of the plaintiff as a patient to "events" of the crash in terms of mechanism of injury. It cannot be known whether or not the referred to "events" were the riding upon the motorcycle leading to the injury. By an arrow to a margin note, the clinical note refers to information of the motorcycle accident and collision with a pole which would be consistent with "events", meaning the mechanism of impact causing injury.

35. It is recorded, "Believed to be passenger". It was not put in the hearing, and would be opposite to the record contained in the document, that the entry referred to a statement by the plaintiff that he was the passenger. The document contains reference to what might be an ambulance officer's opinion. Whilst that entry may have serviced treatment in some way, it is not admissible evidence as to whether or not the plaintiff was the pillion passenger: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] 8 CA 36. The RNSH clinical notes on admission include among the injuries that the plaintiff suffered bilateral small subdural haematomas, and from that it was agreed between the parties that the plaintiff suffered some degree of brain trauma.

36. Senior Constable Svenson attended the scene with Senior Constable Landon and subsequently upon the plaintiff at RNSH at around 02.30 to 02.40 hours (2.30am). Senior Constable Svenson's statement became exhibit 8. She was cross examined. She was present and recalled the plaintiff answering questions asked by Senior Constable Landon. She recalled the plaintiff to have said that he had consumed a few drinks. She recalled that the plaintiff answered "Yes" to the question of whether he had been the driver. Senior Constable Svenson observed that the plaintiff was in obvious pain and vomited. Senior Constable Svenson said the plaintiff appeared to her to understand the conversation because "He answered it easily and quickly" - transcript day two p 155 line 34.

37. In cross examination Senior Constable Svenson said that she believed the plaintiff appeared intoxicated because she could smell alcohol on him. Senior Constable Svenson was unshaken in her testimony during cross examination. I accept her to be a truthful and accurate witness. The admission clinical notes (exhibit E) referred to above record that the plaintiff was intoxicated by alcohol.

32. Two separate clinical notes of RNSH record the plaintiff's GSC at 0500 hours as 15 over 15. One note is by Dr M Baba, orthopaedic registrar, exhibit 4, and the other by Dr Henschke, Intensive Care Unit registrar, exhibit E.

33. Dr Baba also recorded that the plaintiff was "alert and oriented". He recorded that the plaintiff was able to give verbal consent to treatment and able to instruct hospital staff that he did not want any family members informed of his condition. Importantly Dr Baba recorded the plaintiff's recollection that he had been at a party that night and that his last drink was at 23.00 hours (18 February 2011).

34. RNSH clinical notes by a neurosurgeon at 12.00 hours on 21 February 2011 record that the plaintiff suffered no loss of consciousness and to have a "good recollection". The neurosurgeon again recorded that the plaintiff was PEARL and GCS 15 over 15. The plaintiff's blood alcohol assessed from a sample taken at 0145 hours (1.45am) was 0.036 grams/100 millilitres. His morphine (free) was 0.06 milligrams per litre. The s 177 certificate by Dr Perl, pharmacologist (exhibit W) confirmed that the morphine detected was in the therapeutic administration range.

35. I note that the report of Moorong Spinal Unit ("Moorong") (undated) (exhibit L) is consistent with this. The plaintiff attended Moorong between 4 April 2011 and 18 May 2011 for rehabilitation following his discharge from RNSH. The Moorong report records at p 4, under the subheading “Cognition”, the following:

"Mr Condopoulos did not report any changes in cognitive skills following his accident. He had sustained bilateral subdural haemorrhages and a post traumatic amnesia, duration of approximately one week. A cognitive screen (Neuropsychiatry Unit Cognitive Assessment Tool) was completed, with the view of determining whether a full neuropsychology assessment was required.

42. Results indicated that there were no significant cognitive difficulties that would be likely to impact on him in the community. A full neuropsychology assessment was not deemed necessary."

43. The notes of Moorong are peppered with references to the plaintiff's concern regarding the legal process investigating for determination the question of whether or not he was the driver of the motorcycle in the motor vehicle accident which killed Mr Soran.

44. I have considered the report of Associate Prof Kennedy dated 7 June 2013 (exhibit Y). It is a medicolegal report prepared for Sydney Criminal Lawyers. Associate Prof Kennedy is a specialist physician and a clinical pharmacologist. Sydney Criminal Lawyers were the plaintiff's solicitors at the time. He was briefed with the police facts sheet, Dr Perl's report, and clinical notes of RNSH, including the ambulance incident report.

45. He was briefed to comment upon whether events and medications may have affected the plaintiff's ability to recall events. He concluded that whilst the plaintiff's alcohol consumption would not have adversely affected his memory, and there being no objective evidence that the plaintiff lost consciousness, the presence of subdural haematomas indicating considerable head trauma would have most likely caused the plaintiff to have experienced a period of unconsciousness, and the degree of trauma would definitely have altered his recollection of events.

46. This would have been worsened by morphine. Further, that GCS is a scale of triage assessment and not a measure of any higher functional status, and clinical note references "alert" and "oriented" relate to ability to respond to relatively basic questions relevant to medical management at the time. I interpret the clinical notes accordingly.

47. Whilst Associate Prof Kennedy's opinion described what one would readily accept as a compromised ability to recall events to some degree, it does not describe an inability of recall. The measure of diminished capacity is not assessed. The importance of the observations of likely compromised capacity opined of by Associate Prof Kennedy is obviously relevant to the question of whether or not the plaintiff competently made the admissions of which Senior Constable Svenson gave evidence.

48. The plaintiff properly pointed to Senior Constable Svenson having conceded that her recollection at the time of making her statement nine days after the incident was better than at the time of her giving oral evidence in court in 2017 in this hearing. Obviously it was an appropriate concession for Senior Constable Svenson to make. At para 12 of her statement (exhibit 8) the very short passage of her evidence of what was said between the plaintiff and Senior Constable Landon was as follows:

"[12] I heard Senior Constable Landon say, 'Have you had anything to drink tonight?" Condopoulos replied, 'Yes, I've had a few.' Senior Constable Landon said, 'Where (sic) you driving the bike?' I heard Condopoulos say, 'Yes.'"

49. There is no issue in the case between the accuracy of that recount and Senior Constable Svenson's entry in her official police notebook.

50. The statement that the plaintiff had consumed a few drinks is consistent with the evidence of his alcohol consumption at the party preceding the motorcycle riding giving by his friend, Mr Denaro.

51. Counsel for the plaintiff in closing submissions submitted that the question and answer concerning identification of the driver was "a bit thin". As I understood it, the submission was that the questions were asked and the answers given whilst the plaintiff was observed by Senior Constable Svenson to be in significant pain, having vomited, and having received morphine. Further, the submissions was that the single-word answer, "yes", was not of sufficient length of expression as for the Court to confidently find that the answer displayed understanding and therefore should not be easily accepted as a competent answer to the question.

52. Counsel for the plaintiff stressed that the ambulance note,( exhibit I), recorded that the plaintiff said at the accident scene that he did not know if he was the driver or the pillion passenger. It was also put that Senior Constable Svenson may have overlooked the plaintiff's confused state was caused by his intoxication.

53. In cross-examination she denied this, as above, observing the plaintiff to have answered quickly and clearly. As I have said, the first answer in relation to consumption of alcohol was correct.

54. Significantly, in my view, Associate Professor Kennedy, and Dr Arnold, an expert pharmacologist, whose report was tendered by the defendant (exhibit 7), agree that the degree of head trauma suffered by the plaintiff carried a substantial risk of altering his recollection of events.

55. Unfortunately I did not have the opportunity of considering the oral evidence of either of these experts. They were not called. Their opinions on this significant point were unidentical. Associate Professor Kennedy wrote:

"It is most likely that he would have experienced a period of unconsciousness and the degree of trauma would definitely alter his recollection of events. This would be worsened by morphine."

56. Dr Arnold wrote:

"I agree with Dr Kennedy that the severe head injuries, Mr Condopoulos suffered likely gave rise to his amnesia of the few minutes prior to the accident, and that the amnesia might be permanent. However, as a pharmacologist my expertise I this area is limited and I suggest that the opinion of a neurologist would be more accurate to assess this effect more specifically."

57. And further:

"I do not agree with Dr Kennedy that there is sufficient evidence to conclude morphine would have worsened the impaired recollection of events caused by the head trauma caused to Mr Condopoulos."

58. Plainly recollection beyond "a few minutes prior to the accident" would have permitted the plaintiff to recall if he was pillion passenger or driver. Neither Associate Professor Kennedy nor Dr Arnold were specialists in the field of neurology or neurosurgery, being the relevant field of medical specialist knowledge for evaluation of the question, whether the plaintiff in this case was competent to answer the police questions at 02.30 hours on 19 November 2011.

59. I received no objection from counsel when I informed them that in the absence of appropriately qualified medical evidence providing expert opinion and interpretation of the clinical notes, I was left, subject to what Associate Professor Kennedy said concerning "alert" and "GCS" above, to take those entries and the ambulance incident report at plain English meaning.

60. Further, counsel agreed that it was not stepping into the field of specialist medical opinion to observe that as counsel and the Court are aware from experience of reading hospital clinical notes, in a case involving brain trauma such as this, a lawyer would commonly expect to find clinical note entries of neurological assessment, including the record of a finding of amnesia if that had been a symptom of the plaintiff's presentation. There is none in the evidence.

61. Summarising the medical evidence in regard to the plaintiff's ability to recall, I observed the following:

1. at the scene he informed the ambulance officers that he did not know who was driving and who was the pillion passenger.

2. at all times the plaintiff was recorded as being alert and oriented.

3. the plaintiff was mildly intoxicated.

4. the plaintiff informed surgeon Dr Howsen at 01.30 hours that he could not recall the events of impact and trauma.

5. at 0500 hours when he was alert and oriented, the plaintiff was able to give Orthopedic Registrar Baba his verbal consent to medical procedures and was able to instruct that he did not want any family members informed, exhibit E. The plaintiff was able to recall that he had been at a party that night and that his last drink was at 2300 hours. Both of those items of recollection are proved by the evidence of Mr Denaro to be correct. Likewise, the plaintiff's description of drinking, given to police at 0230 hours, is consistent with the independent evidence of Mr Denaro.

6. the plaintiff was not attended by a specialist neurosurgeon or neurologist on 19 or 20 February 2011. Given that he was at RNSH, I infer from that, that those responsible for his medical treatment did not consider that review a priority as (agreed by counsel) is the normal course of treatment seen in clinical notes in instances of brain trauma causing amnesia; and

7. at 1200 hours on 21 February 2011 when assessed by a neurosurgeon the finding was that the plaintiff had suffered no loss of consciousness and possessed a "good recollection".

62. On the whole of this evidence I find that the plaintiff's recollection was to some undefined degree impaired, and therefore his ability to accurately answer the questions of Senior Constable Landon at 0230 hours on 19 February 2011 was to some undefined degree compromised. The information which the plaintiff informed Dr Baba of at 0500 hours on 19 February 2011 concerning his having attended a party and having his last drink at 23.00 hours is consistent with the evidence of Mr Denaro with whom he attended the party. His answer to police of having consumed a few drinks is also consistent with Mr Denaro's evidence of the plaintiff's drinking at the party.

63. That the plaintiff was able to accurately answer questions including admitting that he was the driver of the motorcycle is consistent with the neurosurgeon's assessment made two days later that the plaintiff retained a good recollection.

64. I find that the plaintiff's admission of being the driver given to Senior Constable Landon in the presence of Senior Constable Svenson at 02.30 hours 19 February 2011 was competently given, albeit in a state of some mental functional impairment of recollection.

65. As I put to counsel during closing submissions, this is not a case where if the plaintiff was at the time of hearing unable to recall whether or not he was the pillion passenger or driver of his motorcycle, and at the scene to the observation of ambulance officers when he said that he did not know if he was the pillion passenger or driver of the motorcycle; that the evidence infers a continuum up to the present of inability to recall events from hours before until a week after the motorcycle accident. The direct evidence contained in the clinical notes is consistent with Senior Constable Svenson's observation that the clear answer given by the plaintiff was competently given.

STRENGTH OF INFERENCE SAID TO ARISE ON OTHER EVIDENCE AGAINST THE PLAINTIFF’S ADMISSION MADE WITH COMPROMISED RELIABILITY

66. Whilst on the evidence of Senior Constable Svenson and the medical literature, I have concluded that the plaintiff's admission was competently made, that conclusion must survive the challenge of other evidence in the plaintiff's case which the plaintiff submits infers that he was the pillion passenger. This is because I have concluded the admission was competently made, but in the absence of expert medical assessment of competence and where I have been permitted to only rely on the face value of treating medical literature and the lay observation of Senior Constable Svenson. As noted, there is incongruous expert physical and pharmacological evidence referring to the probability that persons suffering a traumatic assault of the brain, as did the plaintiff, will suffer alteration of recollection of some degree.

67. The plaintiff's submission in reply was that it would have been easy for the plaintiff rather than come to Court saying that he had no recollection of events between some hours before the motor vehicle accident until about a week later in hospital, to have said that he recalled being the pillion passenger. It was put that to think otherwise one would have to be concerned that the plaintiff had contrived his information to the ambulance officers that he did not know if he was the rider or pillion passenger.

68. The observation contained within this submission is inviting. However, acceptance of it faces the following problems in my opinion:

1. As stated above there is no expert psychiatric or neurological opinion evidence explaining that the plaintiff's amnesia now and reported as claimed by him in the evidence dating from his admission to Moorong in April 2011 means that he was not possessed of a recollection at 02.30 hours on 19 February 2011 when speaking to police. I have dealt with this above.

2. The plaintiff was interviewed by ambulance officers in the shock and turmoil immediate and present of the environment of the accident scene. That scene involved the death of Mr Soran. The ambulance recorded history did not include a clear finding of confusion or of other high functioning or communicative deficit. The ambulance report is not, in the absence of expert medical opinion to the effect, evidence on the basis of which the Court is required to reason that the plaintiff's later recorded recollections were incomplete of rhe fact of driver or pillion passenger.

INFERENCES LISTED IN PLAINTIFF WRITTEN SUBMISSIONS ON CLOSING

69. The plaintiff submitted it is unlikely that the plaintiff chose this evening to be the first occasion upon which to carry a pillion. He was travelling with a fellow motorcyclist who was happy to ride with a pillion and was apparently keen to do so on the night.

CONSIDERATION

70. As the defendant properly submits, this evidence, whilst strongly expressed by the plaintiff in oral evidence, is not supported by other evidence and is entirely in his own interest. It is said in a vacuum of the opportunity of the defendant to reply.

71. The plaintiff did not call any other evidence nor ask the plaintiff's good friend, Mr Denaro, or the plaintiff's mother, who gave evidence, whether or not he did carry pillion passengers when driving his motorcycle. They were not asked about his motorcycle driving manner, that is, whether he drove safely or not.

72. That Mr Denaro overheard the conversation in his car in which Mr Soran said to the plaintiff that their passage to the Oaks Hotel, Neutral Bay should include taking the bike out for a cruise is, likewise, evidence in a void. The surrounding circumstances which are known include that the motorcycle belonged to the plaintiff, that Mr Denaro drove Mr Soran firstly to his home, so that Mr Soran could retrieve his motorcycle helmet, is not indicative of anything. Pillion passengers wear helmets. Mr Denaro's recollection was that the plaintiff brought his motorcycle out to the driveway of his mother's home, not Mr Soran, then the plaintiff went to retrieve his helmet. Mr Denaro left before Mr Soran and the plaintiff and therefore did not see them on the motorcycle. There is no evidence, for instance, of what alternative means of transport were available to Mr Soran and to the plaintiff.

73. In my view, the conversation is close to equivocal evidence. Albeit purely because Mr Soran first mentioned the bike in the context of "cruise", there might be some slightly positive inference of his enthusiasm; it is difficult to assess why that statement would portray his enthusiasm as greater than that of the plaintiff. One would not expect, in that scenario, for the plaintiff to have replied, "What a great idea, because we know I love driving the motorcycle more than you," or, "What a great idea, because you know I enjoy being your pillion passenger."

74. The fact that one person makes a suggestion with which another agrees is not indicative that the speaker has a greater preference for the suggestion than does the listener.

75. The plaintiff was affected by alcohol approaching the bottom scale for low-range PCA. There is no evidence of the blood-alcohol level of the deceased, Mr Soran. As I understand the evidence of Mr Denaro, Mr Soran had also had a few drinks at the party, but that is beside the point. What is sad is that commonsense causes one to observe that the incident resulted from two 21 year old males, each of whom, on the evidence of their traffic record, which is discussed in more detail below, during their short driving history had been breached by the police for exceeding the speed limit. They agreed to take the very powerful motorcycle for a "cruise".

76. That the event occurred at 1am, following a party, is, unfortunately for young men of their age, not unheard-of behaviour. Whilst there is no evidence as to how the plaintiff, if the pillion on the motorbike, might have argued or have had difficulty communicating his displeasure, if he felt it, to Mr Soran, driving the motorcycle recklessly, commonsense would suggest that, in the absence of evidence to the contrary, there is a substantial possibility that the high speed riding was a joint venture. At least, in my view, that observation is not out of the question. It is, however, speculation, the evidence of driving and behaviour of pillion leading to the motor vehicle accident being non-existent.

SHORT ADJOURNMENT

77. The Plaintiff submitted: It seems highly improbably in the circumstances that had the plaintiff been riding, we (but I am sure it is intended "he") would traverse the intersection at a speed so high that the bike became airborne.

78. The Plaintiff submitted: The far more probably scenario is that Mr Soran who was keen to go out on the bike and had said in the presence of Mr Denaro, "Should take the bike out for a cruise," with the plaintiff, and collected his own helmet for that purpose, elected or agreed to be the rider as he had done several times before on the plaintiff's motorbike.

CONSIDERATION

79. The matters I have gone to in relation to plaintiff's closing submission on inferences number 1 apply also to these two submissions. Further, allowing for what I accept is the deeply felt emotion and stress of the plaintiff in relation to the subject matter of this hearing; my observation of him was unfortunately that he prevaricated in evidence. On occasion I had to direct him to answer the questions asked in cross-examination. On occasion I asked a question myself in the form of that which had been directed to him by counsel.

79. His evidence was, to my observation, defensive and prevaricating. He was a witness who displayed a reluctance to make admissions against his own interest. I did not find him to be an open witness. These observations of the manner in which he gave evidence cause me to exercise caution in the acceptance of his oral evidence given in self-interest when not corroborated by other evidence. I point to examples of his oral evidence in relation to material matter which, in my opinion, displayed the need for caution in accepting him as a witness.

80. First Example; concerned the plaintiff's evidence that he would not drive a motorcycle with a pillion, and that he would be a pillion with Mr Soran driving.

81. Despite Mr Soran being the plaintiff's close friend, known to Mr Denaro, and I assume the plaintiff's mother, the plaintiff elected not to ask either witness for evidence corroborating this part of the plaintiff's case.

82. Absent them saying that they had not seen the plaintiff ride his motorcycle or did not have the opportunity of the required observation, it is a matter, in my view, worthy of some caution that they were not asked to corroborate this part of the plaintiff's case.

83. The plaintiff's evidence was that Mr Soran had twice driven the plaintiff's motorcycle with the plaintiff as a pillion passenger on Victoria Road, Gladesville.

84. No measure of time or distance of the pillion passenger riding was given. I can only assume that on each occasion the distance was at least several kilometres otherwise the only evidence given by the plaintiff on this topic was that once in a standing position, he observed Mr Soran take off on the plaintiff's 1000cc motorcycle and turn a corner. There is, in this case, no evidence that Mr Soran owned a motorcycle. The plaintiff says that Mr Soran informed him that he held a motorcycle driver's licence. The motor traffic records show that Mr Soran had never held a motorcycle rider's licence.

85. At transcript pp 75 to 78, cross examination of the plaintiff revealed him to give defensive if not prevaricating answers. I found his evidence unconvincing, that he was so concerned about the danger of travelling as a pillion passenger, as he would not himself drive with a pillion passenger, but that he would permit himself to be a pillion passenger on his powerful motorcycle when it was driven by Mr Soran. Defendant counsel, in my view not unfairly, put that this evidence was paradoxical. Specifically, I found his answer reasoning for the above paradoxical proposition to give even more concern for its accuracy.

86. At transcript p 78 lines 12 to 20, the plaintiff described himself as relatively inexperienced on a motorcycle. However, when being asked questions about this topic of election to be driver or pillion passenger, he did not refer to any better experience of Mr Soran. As above, he said that he had seen Mr Soran take off and drive around the corner. In relation to that piece of evidence, the plaintiff said that on such a powerful motorcycle, taking off is not something "a novice" would be able to do. He did not give any evidence describing Mr Soran otherwise. He did not, as one might reasonably expect, take the opportunity of describing Mr Soran as in some way experienced or expert. The plaintiff himself was not a novice; he had held a motorcycle licence since 2009.

87. On another level, my concern is that, given the earlier evidence that the plaintiff had been a pillion passenger to Mr Soran's driving of the motorcycle on Victoria Road, Gladesville, on more than one occasion, I would have expected the plaintiff to have described the capacity of Mr Soran to drive a motorcycle in the context of the focus of the questions of the plaintiff being a willing passenger, with reference to what it felt like during that experience. He might, for instance, have referred to the security which he experienced during being Mr Soran's pillion passenger. It seems to me that that would be a more likely and obvious choice of answer, rather than saying he had seen Mr Soran take off and be able to turn a corner.

88. Second Example; Obviously, the plaintiff's recuperated capacity and diminished capacity are in the central focus of this case. There is little dispute between the parties as to the seriousness of his injuries. The plaintiff relied upon treating medical reports. Except for a vocational assessment, the defendant did not rely on reports of a medicolegal nature. Within that, the plaintiff described himself before injury as an active young man playing sports, including kickboxing, but with a real love of soccer. The uncontested treating medical literature records him to have been a member of a local club training twice per week and playing once per week.

89. At transcript p 56 line 34, the plaintiff gave the answer, "Never," to questions concerning whether he had been able to return to soccer and kickboxing after the motor vehicle accident. At transcript p 64 line 30 to p 65 line 6, the following further answers were given in cross examination:

"Q. Am I right in thinking that you told your learned counsel that you haven't engaged in any sport since the accident?

A. I haven't engaged sports? He asked me if I have engaged in soccer or kickboxing again.

Q. Have you ever engaged in kickboxing?

A. No.

Q. Have you ever engaged in soccer?

A. I have never registered for another soccer team, no.

Q. I didn't ask you that. Have you engaged in soccer?

A. Could you elaborate on 'engaged'?

Q. I think, sir,"

His Honour question,

"Q. Have you ever played soccer since you were injured?

A. Yes."

Renshaw,

"Q. So the impression you are conveying to his Honour in response to your own counsel was dishonest. Was it not?

A. Not exactly, no."

91. Further, at transcript p 65 line 16 to transcript 66 line 01, the plaintiff, unsuccessfully as it turned out, attempted to deny that he had been injured playing soccer since the accident.

"Q. Have you ever been injured playing soccer since the accident?

A. No.

Q. Do you not assume that I'm asking you these questions for a purpose?

A. What was that question, sorry?

Q. Because in the same document in front of me, 'Con fell at soccer approximately 2.5 weeks ago'."

HIS HONOUR: What's the date of the document and who is it from?

RENSHAW

Q. The date of the document is 29/09/11.

HIS HONOUR: From who or by whom?

RENSHAW

Q. From Judy Trickett, your case Manager..(not transcribable)..rehabilitation?

A. Sure.

"Q. 'Fell at soccer and suffered a large haematoma', that's a bruise on your right hip/thigh, 'which is only resolving in the past few days.' So you were injured playing soccer.

A. That was quite some time ago, so it very difficult to recall that.

Q. The answer is yes. Isn't it?

A. Yes.

Q. You were lying, yes?

A. The intention was not to lie, no.

Q. But you did.

A. It was bad recollection."

At transcript 139 line 8 to 14, the plaintiff's mother gave the following answer in evidence in chief.

"Q. activities back then? Does he do any sports any more?

A. Yes.

Q. What does he do?

A. Well, just before his problem with his knee, he was trying to be active in having playing soccer, activities with soccer. That's as far as I know with what activities."

92. I understand the plaintiff's problem to do with his knee to be his right knee, in regard to which he has undergone four surgeries between December 2016 and the middle of this year.

93. Given the plaintiff's level of frustration with his disabilities, being a young man and injured as he has been, given the plaintiff's left knee impaired his ability of sports because of its neurologically reduced flexion, speed and control, and given the plaintiff's love of soccer; I found it difficult and as I observed the plaintiff give his answers I did not accept that he had forgotten that he had injured his hip playing soccer. It must have been a matter of great frustration causing him significant despondency. Otherwise, his answers are seen, in my opinion, as an attempt to minimise his achievements of recuperation.

94. Third Example: In relation to his pre injury employment with the leading advertising firm Clemenger, with whom the plaintiff was performing information technology work, as a technician ("IT"). The plaintiff displayed a reluctance to openly concede that his employment record with the firm was, in the view of his superiors, less than satisfactory.

95. It is an example of defensive evidence because had he been open in his answers, his employment performance would have been readily acceptable as not damming of him, to a Court taking a reasonable view that he was only 21 years of age at the time he fell to some degree, foul with his employer. At transcript pp 66 line 18 to 68 line 19 and in exhibit 1 the relevant passages of evidence can be found. In exhibit 1 the plaintiff's then solicitors, LawPartners, by letter 16 December 2014 at number 8 asked Ms Judy Elliott of Clemenger Group Ltd to give her opinion on the plaintiff's career progression. Ms Elliott as national IT manager for Clemenger Group Ltd answered as follows:

"Con was quite a skilled junior technician. Unfortunately his ability was not matched by his attitude. His approach to work was poor, he was lazy and unreliable. His attitude towards his peers and managers rude and disrespectful.

At the time of his accident he was on a final warning (attached). It was highly likely his position with Clemenger Group Ltd would have been terminated before the end of the month."

96. The attachment is a written document dated 4 January 2011, about six weeks before the motor vehicle accident. It is countersigned by the plaintiff on 4 February 2011, two weeks before the motor vehicle accident. The attachment required the plaintiff to consider it as a Final Warning for poor performance. It referred to his on 24 January 2010 having left work without notification or permission and that when asked to give an account of his whereabouts he was evasive and untruthful.

97. Again one can allow for immaturity and as a 21 year old perhaps even the plaintiff feeling a willingness to sign a document with which he did not wholeheartedly agree in order to maintain his employment position. That said, I found his evidence in Court, and by that I mean how he gave it, to be less than open and to again to show a reluctance to give evidence against self interest. In the transcript at the place I have mentioned his evidence was as follows:

"Q. Were you ever given a warning?

A. In fact, I think I was given a warning with Clemenger. I can't remember what is was for, though.

Q. You see these documents actually come from your solicitor, so I would be absolutely amazed that you've never seen them.

A. I have a lot of documents.

Q. Among other things, and let me just quote

HIS HONOUR

Q. Sorry, what was that answer?

A. There are a lot of documents that have been given to me, so it's just hard to remember them all.

RENSHAW

Q. Just let me quote from a document that's addressed to your solicitor, "Career Progression". This is before the accident:

"Con was quite a skilled junior technician.""

[Thereafter the passage which I have read from, the officer of Clemenger's response to the plaintiff's solicitor, was read to him]

"Q. Are you saying that your solicitors never showed you this document?

A. No, I have seen that document.

Q. The warning dated January 2011?"

[The question then continued to read from the warning letter which I have set out above]

"Q. Do you dispute that?

A. I don't dispute what was said on there, no.

Q. So before this accused, you were untruthful. Was that right?

A. I don't believe that I am untruthful.

Q. Is that correct or not?

A. I don't think that the wording that has been put there by the person that wrote it was totally true, no.

Q. 'Totally true'?

A. I don't believe it to be true."

98. The plaintiff continued to say that he did in fact tell them where he was. But what is apparent is that the plaintiff did not, in his evidence, willingly come forward about having been given such a warning, but rather gave an answer which was defensive, until, the document having been read to him, he conceded that he had seen that document. One would expect that there have not been too many, if any, other occasions on which the plaintiff was asked to countersign an employer's final warning. One would not expect a young person to have forgotten having done so.

99. Fourth Example: In the plaintiff's claim for economic loss, he does not claim for a substantial period on the basis, as I understand it, of the plaintiff's concession that he chose not to work during a period through which, in addition to his ongoing medical treatment, the legal process concerning charges arising from the subject motor vehicle accident were to be faced by him. The proposition put to him in cross examination was that, having already paid $30,000 toward his legal costs, he stopped work to take the opportunity of received legally aided funding from the same solicitors.

100. Again, on its face it was a cross examination challenge which might cause the plaintiff or any other witness some embarrassment, but it was not to the level of challenge to his integrity that it ought have caused him to be reluctant to give open answers. Unfortunately, again I found him to be reluctant. Bearing in mind what was said by the New South Wales Court of Appeal, particularly Basten JA in Mason v Demasi [2009] NSWCA 227 at [2], I am cautious for the records of third parties being put to the plaintiff to be not regarded as an accurate record of what the plaintiff said in the absence of that party or those parties being called. That said, the cross examination was fairly put on the basis that the questions were directed to observations and opinions of authors in clinical notes, as opposed to verballing the plaintiff.

101. The plaintiff was cross examined upon summary information recorded in exhibit X, being records of his treating psychologist Dr Groves. As best as I can glean it, the record was made on 2 May 2016. Dr Groves is a treating medical provider under the Lifetime Care and Support scheme, of which the plaintiff has the benefit. At p 415 of the plaintiff court bundle, which appears as the second page of exhibit X (exhibit X is not paginated), Dr Groves recorded that due to the legal costs involved in his Court case in 2014 the plaintiff left the job to which he had returned "to access Legal Aid" and was subsequently out of work for 18 months.

102. In exhibit 6, which is a report of Vocational Capacity Centre dated 1 April 2015 by Mr John Raue, vocational psychologist, at p 4 there is reference to at that time the plaintiff having put in energy to defend himself against serious charges which was understandable and that the author understood the plaintiff's account to be that "he specifically resigned from a position in order to cease having an income for that period of time to be eligible for Legal Aid". I repeat this, as it is written, was the author's impression.

103. At transcript p 69 when the plaintiff was read the above referred to passage from the report of Dr Groves and asked whether it was correct, his answers was at transcript 69 line 30 "Partly." He then conceded that he had told Dr Groves that he left his job so that he would be eligible for Legal Aid and went on Centrelink. Then at transcript p 72 lines 6 to 24 when the plaintiff was taken to the fact that he had paid $30,000 to Sydney Criminal Lawyers before going on Legal Aid he gave the following evidence:

"Q. You must have known that it was going to cost a hell of a lot more for the trial.

A. Is that a question? Like, are you asking me if I must have known?

Q. Yes. You must have known, must you not?

A. I had no idea how much a trial costed. I'm sorry."

104. In my view the open answer, given the plaintiff's admissions of fact preceding, was that he was aware that the trial which was to follow was going to cost a great deal of money. His answers and the manner in which he gave them was defensive rather than open.

105. Fifth Example: The final and perhaps the most telling part of this review of evidence upon which I have formed the above expressed view of the plaintiff's credit as a witness was evidence given in relation to his embezzlement of funds when employed by Rexel between 30 May 2014 and his dismissal consequent of the embezzlement in March 2016. I will resume at 2 o'clock.

LUNCHEON ADJOURNMENT

106. The plaintiff's evidence in relation to his embezzlement of moneys from Rexel during his employment there, and there is no dispute as to the fact that he took $20,000 without permission of his employer, caused me concern as to his candour in that again he was not open and cooperative in his evidence as the Court is entitled to expect a witness to be. There is no doubt that at the time of the embezzlement in early 2016 the plaintiff was, as he had been, living a life quality depreciated by the stress and frustration of his disabilities.

107. Plaintiff's counsel submits that the embezzlement was out of character and occurred in the tough environment of the plaintiff's adjustment and recuperation. As I said, that may be correct but I would add it is not the truth of the fact of the embezzlement in that environment and evidence as to the event itself which cause me the concern which I have identified as to his giving of evidence. What caused me concern as to his openness as a witness is easily seen on transcript p 90. At lines 30 to 33 the plaintiff gave the following evidence:

"Q. You got caught red handed stealing money, didn't you?

A. The intention was not to steal money. I had in fact had the intention of borrowing money.

At transcript p 90 lines 43 to 45 counsel for the defendant fairly put in cross examination:

"Q. Do you come from some background where 'borrowing money' means stealing it?

A. No."

108. The plaintiff gave evidence that he intended to pay money back. His mother gave evidence to the effect that she was upset that he had not turned to his family if he was in need of money. In my view the problem with this evidence and the reason why it is another example indicating why I should accept the plaintiff's evidence with some caution, is that it fails to frankly and simply accept the wrongfulness of the action. It fails to simply and accurately concede that his action was theft. I say this without needing to challenge his evidence that he had some view at the time, the detail of it is not formulated in his evidence, that he would pay the money back.

109. Further, in relation to the plaintiff's evidence concerning the period of his employment with Rexel; his dismissal meant that he was left without an employer reference for that substantial period of nearly two years in his relatively short working life. That is a disadvantage not of the defendant's making which should be taken into account on assessment of damages.

110. Again in relation to this feature of his evidence the plaintiff to my observation was not open but gave evidence during cross examination which was defensive. In particular, and without going to the detail of it, I was concerned with that part of his evidence when he denied a recollection of what was said by him in his consultation with his treating psychologist, Stephanie Groves, on 13 June 2017. That was only one month before the hearing. He did not deny having spoken with her about it, but his answers were of the fashion, in my opinion, of hiding behind a claim of not being able to recall exactly what was said.

111. My determination is that the plaintiff's oral evidence, given in self interest, which is not corroborated by other evidence, is to be received with caution. I wish to emphasise that I do not make a finding that he was a wholly untruthful witness. It may be that the manner in which he gave his evidence is a measure of the conditioning of him living through six years of a painful and frustrating partial recuperation from injuries which nearly took his life and involving an event in which his very close friend died. Be that as it may, the test is not a moral one. The question which I have and these reasons answered is whether or not the plaintiff's oral testimony on matters of advantage to himself and his case should be readily and completely accepted. I have determined in the negative, and that some caution is required.

108. The Plaintiff Submitted: "Being a documented reckless driver, Hez Soran was more likely to be riding at an inappropriately high speed."

109. The Plaintiff Submitted: "Hez Soran lived at West Ryde (as stated by Denaro and confirmed by his traffic record). He was not licensed to ride or drive at the time of the accident. He was very unlikely to have been as familiar with the dangers and peculiarities of the intersection as the plaintiff. Unlike the plaintiff, Hez Soran did not realise that there was a blind crest and a subsequent kink to the left at the intersection in question. The bike was travelling at a speed where it was not just inevitable that it crashed, but also it became airborne. It could not remain in control and it could not manage the right hand kink in the road, instead leaving the road and hitting a rock-wall on the left hand side of the street beyond the footpath."

CONSIDERATION:

114. Part of this submitted inference requires dismissal out of hand as there is no evidence in regard to it. That is the part concerning Hez Soran's knowledge of River Road and in particular, the site of the collision. Hez Soran had held a driver's licence for some years. As a driver of a motor car, he would be able to observe a road if he travelled upon it.

115. There is no evidence as to whether or not Mr Soran travelled River Road. His experience with River Road and familiarity with it might be greater than, equal to or less than the plaintiff's. The evidence does not approach it.

116. The balance of the submission relies on the motor traffic records of the plaintiff and of Mr Soran, exhibit D. This evidence is relied on for that part of the plaintiff's submission that the inference is that Mr Soran was more often a high speed driver and more often in breach of the road rules such that the Court would infer that he was more reckless or likely to be reckless when driving, and more likely to flout the road rules than the plaintiff.

117. The road traffic records say nothing of which of Mr Soran and the plaintiff drove the greater kilometres. Indeed, there is not even evidence of Mr Soran's employment. He may have been a courier driver. The Court simply does not know.

118. The submission of the plaintiff is based upon calculating that Mr Soran was shown to have recorded four speeding offences between 2007 and 2008, and another in 2009. He was also breached on three occasions between 2009 and 2010 for driving whilst suspended.

119. However, the submission is entirely contrary to the available argument that, given he was on 13 April 2010 declared an Habitual Offender, for which he was disqualified for five years, to run after the two year suspension for the offences then before the Court, making a total of seven years, he might have learned a lesson. In the nine months following that court attendance and consequence, Mr Soran was not breached as a road user at all.

120. It also seems to me that, without knowing more about the individuals, one might be more cautious or more reckless on a motorcycle than he or she was when driving a motorcar. Mr Soran had never been a licensed motorcycle rider. He had a car license. The records are not in that way “like for like”.

121. Significantly, none of the offences for which Mr Soran was breached approached the degree of recklessness of driving at 120 kilometres per hour on River Road at night. Even on a comparison basis, if I were minded to accept motor traffic record as a description of driving habit of the plaintiff and of Mr Soran, there is thin if any basis for the plaintiff's submission. Prior to the motor vehicle accident, the plaintiff had been breached for speeding, and the plaintiff was breached for speeding again after the motor vehicle accident and for driving with the prescribed content of alcohol.

122. One might take a view, without more, that an individual who had experienced this serious motor vehicle accident consequent of reckless driving, and who nevertheless afterward still drove in breach of the motor traffic rules by speeding and by driving whilst with an legal concentration of alcohol in their blood, was a person of some serious degree of disregard for their responsibilities as a road user and for the road rules. One would wonder what might it take to teach them a lesson.

123. In my view, the whole of this evidence is speculative. The evidence, like any other fact, is something which can be looked at and parties can speculate a meaning for. In my view, the evidence of the motor traffic record of each of Mr Soran and the plaintiff and in comparison is not sufficient to support a positive inference that the plaintiff was the pillion passenger. I repeat that I am reluctant to draw such an inference when, as observed, it was readily available for the plaintiff to have called evidence of witnesses, including to have asked questions of Mr Denato and the plaintiff's mother of the driving habits and regard for safety of the plaintiff and of Mr Soran. That was not done.

CONCLUSION – PLAINTIFF SUBMISSION OF INFERENCE

124. Whilst the plaintiff's oral evidence is to some degree of a positive persuasion that he was the pillion passenger, it is not sufficiently persuasive of that finding, in my opinion, to infer that fact more probably than not. I do not find that the plaintiff's evidence is of equal persuasion on the question of who was the pillion passenger as was his admission made at 0230 hours on 19 February 2011 to Senior Constable Landon in the presence of Senior Constable Svenson. I say that considering the whole of the evidence and understanding the submission of inference which the plaintiff presses. The surrounding evidence upon which the plaintiff relies is not successfully contradicting of that admission which I have found to have been competently made.

125. The plaintiff's last submission of inference was that Mr Soran as a person of worse traffic record and therefore more likely to have panicked when seeing the police at their breath analysis station, and to have sped away. I have dealt with that submission in the earlier consideration of factual evidence. There is no evidence that the motorcycle driver believed they were escaping pursuit. There is no evidence that the motorcycle was being driven at a speed different to that at which it was detected by lidar by those police officers.

CONTRIBUTORY NEGLIGENCE

126. The defendant has pleaded contributory negligence under s 138 of the Motor Accidents Compensation Act. During the hearing, including closing submissions, counsel for the defendant was silent on the point. The plaintiff submitted that there is simply no evidence. I agree that there is no evidence upon which a finding of contributory negligence can be made. There is no evidence as to what, if any, communication was available between the pillion passenger and the driver of the motorbike. I make no finding in relation to contributory negligence.

RESULT AND ORDERS:

127. Judgment for the defendant and, subject to any special application, I order the plaintiff pay the defendant's costs.

DAMAGES

128. It is incumbent upon me to say something about damages. As this judgment opened, the plaintiff is a person whose life has been seriously affected by these events, and in that regard he has the sympathy of the Court. Dr Weber, medical director, spinal and rehabilitation medicine, spinal injury unit, Royal Rehabilitation Centre, Sydney, on 5 July 2011 summarised the plaintiff's serious spinal injuries as follows. The plaintiff:

"sustained a burst fracture C6 with associated C5 incomplete ASIA D spinal cord injury. He underwent C4 to T1 posterior decompression and fixation on 19 February 2011. He has progressed extremely well and is currently independently mobile and independent with all ADL's. He has residual left distal upper limb weakness and mild distal right upper limb weakness."

(Exhibit N.)

129. On 9 December 2016 Dr Weber reported to the plaintiff's Lifetime Care and Support case manager that the plaintiff reported worsening neuropathic pain. He continued:

"His pain is mainly felt on the right side from chest wall radiating down to the foot. He also complains of ongoing right sided abdominal pain. He gives a pain score of 4 5/10. Pain in the abdomen is a bruising type of pain and in the legs is a burning type of pain."

130. Dr Weber continued that the plaintiff feels that recent right knee symptoms have aggravated neuropathic pain. It is not contested that between December 2016 and the middle of 2017 the plaintiff underwent four surgeries to his right knee. Dr Weber included in his summing up:

"From a neurological point of view he remains stable. I noted distal left upper limb motor deficits in C8 and T1 (grade 1/5) with reduced sensation on the right side of T2 and below. These findings are more consistent with a C7 incomplete spinal cord injury. In comparison with previous assessments he reported normal sensation involving his lower cervical dermatomes."

131. As earlier stated, the defendant does not rely on medico legal evidence, nor does the defendant tender treating medical evidence. In this hearing there is not much dispute as to the basis for assessment of damages. The defendant concedes the obvious physical and psychological loss. The reports of Dr Groves speak of the plaintiff's frustration and psychological stresses.

132. The question for the Court to answer is only in regard to quantum. As the plaintiff receives the benefit of the Lifetime Care and Support scheme, damages are only to be assessed for non economic loss pursuant to s 134 MACA, and for economic loss in the form of past and future loss of earnings.

133. The plaintiff chronology, exhibit A, was tendered without objection, the plaintiff having given evidence on oath that he read it and found it to be accurate. I do not propose to set out the history of his six years of treatment and recuperation, as it is not necessary to do so as the case was run, and given the positions taken by the parties.

134. It is, however, relevant to observe that he spent substantial time in the Moorong Rehabilitation Unit, and that his recuperation from such serious injuries was not smooth sailing. One must, in this case, have regard to the significant pain, suffering, frustration and anguish which he as a young person went through in that course. Some of those things included him experiencing deep vein thrombosis of his left leg. He underwent substantial skin grafts to both arms, his lower front torso, both thighs, his upper back. He has experienced spasticity, mostly affecting his hands, improved somewhat by the drug gabapentin.

135. He has suffered substantial neuropathic pain in his left hand, which I have described earlier as a clawed left hand. His index finger is in a position approaching his thumb. Other fingers of his hand are bent in the clawed position. He cannot open his palm. He finds it humiliating that in order to use a fork to eat his meal, he has to grip the fork with the shaft through the hole of his palm. He cannot hold it between his fingers.

136. In the witness box he was observed to be able to turn his head for the degree of looking from his counsel to counsel for the defendant, which is not an extensive rotation; when he spoke to me, he swivelled on his chair to turn in my direction to do so.

137. He suffered left knee cartilage disruption and bone oedema. He has suffered mood swings, frustration, and grief. On occasion he has not been a willing participant in his rehabilitation. Given its course, this does not seem wholly unreasonable. In exhibit L, Moorong recorded that the plaintiff refused to participate in fabrication of a splint designed to assist with the function of his left hand. Moorong recorded that the plaintiff did not wish to pursue use of assisting aids. For a young man, the compulsion to use them must have been embarrassing and dispiriting, particularly for this plaintiff, who was an active sportsman before the motor vehicle accident.

138. With walking, he used a stick to travel any substantive distance. That may not be the case now, but from the records I glean that it has been the case substantially in the past. As of discharge from Moorong, he was able to mobilise independently outdoors and indoors without aids. His main limiting factor at that stage was a tendency to hyperextend his left knee when fatigued, but he was able to control it when concentrating. In his left knee he has suffered a neurological loss diminishing the control of extension. Although he was keen to return to his beloved soccer and attempted to attend training and did perform some light jogging, he fell and bruised his thigh significantly.

139. The right knee, the course of treatment to which I have briefly referred, involved surgical removal of a painful cyst that seriously interrupted his recuperation and his opportunity to remain in employment. The plaintiff is able to negotiate stairs, but he is troubled by them. He finds more difficulty going down. He has been certified unfit to drive a motorcycle. He is fit only for driving an automatic car.

140. I am mindful of that evidence to which I have referred concerning his poor work performance pre injury but I am also mindful that he was only a 20 year old young adult man at the time. I am mindful of his embezzlement at Rexel and the subsequent problem of his not having an employer reference for that period. The plaintiff is now employed with the Administrative Appeals Tribunal and continues to work in the IT field. He has, except for the period when he chose not to work, in order to deal with the legal complications consequent of the motor vehicle accident, maintained continuous employment despite his disabilities. In any event, the plaintiff does not claim for past economic loss for that period.

141. The plaintiff was born in 1989. He is now 27 years of age. He completed year 11. He has been assessed as a person of upper range average intelligence (exhibit 6). After leaving school, he commenced a traineeship with Mission Australia and obtained his Certificate III in Business. He has also achieved a Certificate III in Hospitality and a Certificate III in IT Networking.

142. All of these certificates were obtained from TAFE. He was first employed as an IT support technician with Clemenger in 2009. Just before the motor vehicle accident, in January 2011, he commenced studying for a Bachelor of Technology at Royal Melbourne Institute of Technology, as a distant student.

143. At the date of the motor vehicle accident he had completed initial study units at distinction level. Mr Raue, vocational psychologist reporting for the defendant on 1 April 2015, exhibit 6, assessed the plaintiff as follows: “Mr Condopoulos said that he had developed a wide range of general computer skills in the past. He is skilled with general hardware and setting up computers and routers and other support systems. He had been a systems administrator for servers. He could do physical, hands-on work in setting up networks as well as install and use computer software. In terms of his current skills and abilities, he said he had extremely limited use of his left hand and tends not to use it and relies on his right hand for data entry. He said he is slow and awkward doing physical tasks.”

144. In the report of Ms Gosling, physiotherapist, and Mr Whiteley, registered psychologist, dated 16 July 2015, under the letterhead Occupational Health Assessment Centre, tendered by the plaintiff (exhibit A1), the plaintiff's functional limitations are listed as including lifting, carrying, push/pulling, left gripping, elevated work, forward bending in sitting and standing, repeated trunk rotations in standing, crawling, kneeling, crouching, squatting, sitting tolerance, walking tolerance, stair climbing, stepladder climbing, balancing, left manual dexterity.

145. The plaintiff is right hand dominant. He is able to type on a keyboard with his right hand. Basically, he has the use of one finger, and not much more, for typing with his left hand. I accept that he suffers chronic pain down the right side of his body. I accept that, as reported by Ms Gosling and Mr Whiteley, the plaintiff will only be able to perform jobs that have minimal manual handling and manual dexterity tasks as well as jobs that do not require travelling with equipment.

146. I accept that his concentration, on occasion, will be distracted by pain. I accept that he has diminished opportunity in the open labour market due to his limited left hand function and these other matters. The plaintiff puts his case on the basis that, but for the injury, he would have achieved his bachelor's degree and therefore be able to seek IT work at the higher level 3.

147. Gosling and Whiteley, in exhibit A1, at p 2, provide a schedule of the earnings the plaintiff was likely to have achieved between the date of accident until today, but for the motor vehicle accident. Included among them are earnings for which he would have become qualified, on a full-time basis, had he continued that study. I have taken an average of those gross wages; it comes to $70,000. The plaintiff achieves, presently, an income of $65,000. In other words, the notional difference is about $100 per week.

148. The plaintiff's capacity to work and earn is naturally not only relevant to his claim for economic loss, but it is some measure of his capacity to function in the world, and therefore it is not irrelevant to his non-economic loss. Included in that is the frustration and difficulty, which is not immediately observable in terms of earnings dollars, which he suffers in consequence of his disabilities.

149. The maximum entitlement for non-economic loss under s 134 of the Motor Accidents Compensation Act is presently $521,000. The defendant schedule of damages concedes $250,000. In my consideration, a fair and proper compensation for the plaintiff, having regard to the maximum compensation, his disabilities being very severe and, in my opinion, at or beyond the mid-range, is in the figure of $300,000.

150. The only real difference between the plaintiff's calculations of past economic loss and that of the defendant, is that the defendant did not include the period between 12 December 2016 and 18 April 2017 when the plaintiff was off work because of his right knee repeated surgery.

151. I have in this judgment referred to middle of 2017. In saying this, I have had regard to the fact that the plaintiff continues under treatment for his right knee. In my opinion, the plaintiff is entitled to compensation for loss of wages in that period. Accordingly, I accept the plaintiff's calculation of past economic loss and round it to the sum of $47,000.

152. In regard to future economic loss, the plaintiff says that fair compensation would be $500 per week for forty years at the 5% multiplier less 15% for vicissitudes. This calculates to $389,937.50.

153. The evidence before me does not establish substantial earnings difference between the plaintiff working in IT if he had obtained the bachelor's degree, and working in IT without that bachelor's degree. He has been able to maintain earnings at approximately the rate available had he not been injured. As I have said, the plaintiff will, in my opinion, suffer substantial disadvantage in the labour market. He will, unfortunately, experience unspoken discrimination because his disabilities are obvious. This is particularly so in relation to his left hand.

154. Whereas prior to his injury his IT work focused well on dexterity such as installing routers and wiring systems, he would no longer find that work readily available to him, because of the disability in his left hand. I do not find on the evidence a basis for calculation of future loss over so long a period on a weekly loss basis. The defendant proposed a buffer of $80,000 for future economic loss.

155. The plaintiff proposed a buffer of $250,000 for future economic loss. Each of those proposals included superannuation. The parties do not disagree that this is an appropriate case for compensation for future economic loss on a buffer basis. I award $175,000 for future buffer.

131. In total, had there been judgment for the plaintiff, I would have assessed damages in the sum of $522,000.

132. Any applications by anyone on anything?

133. JOSIPOVIC: No, your Honour.

134. CASADO: Yes, your Honour. The defendant makes an application under s 42.15A of the Uniform Civil Procedure Rules for indemnity costs from 19 May 2017. The defendant made an offer of compromise to the plaintiff--

135. HIS HONOUR: Just before we go there, can I say this. When I excused counsel from today, I did so expressly saying if there are any applications for costs we can set it over for a day when the parties are ready to make and contest such an application, if they chose to do so. So, that's what I would propose to do. Now, I've ordered to this point that the plaintiff pay the defendant's costs. Under the UCPR 36, 15 and 16, that would give the defendant - I don't have it in front of me - 14 or 15 days - you can check - to make an application. You have indicated orally that you wish to make an application.

136. So what I propose to do is to list the matter before myself on Friday 28 July, that's this Friday, at 10am for determination of any application in relation to costs. In that regard, I direct that the parties exchange any evidence upon which they would seek to rely in the making of that application, on or before 5pm Thursday 27 July, and to provide my associate with a copy of that evidence.

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Decision last updated: 18 August 2017