Cordin v The Nominal Defendant

[2016] NSWDC 12

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Cordin v The Nominal Defendant [2016] NSWDC 12

Hearing dates:

27 October, 3, 4, 5, 6 November, 2015, 29 January 2016

Date of orders:

26 February 2016

Decision date:

26 February 2016

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict for the plaintiff on the issue of liability without discount for alleged contributory negligence;

 

2. Judgment for the plaintiff in the agreed sum of $350,000;

 

3. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis until 10 July 2015, and on an indemnity basis from 11 July 2015;

 

4. The exhibits may be returned;

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

Catchwords:

TORTS – negligence – motor vehicles – determination of contested facts – whether plaintiff fell from his bicycle due to a collision from behind with an alleged unidentified motor vehicle or whether he simply fell from his bicycle – whether plaintiff has established negligence on the part of the driver of an unidentified motor vehicle – whether the defendant has established contributory negligence on the part of the plaintiff – evaluation of conflicting expert accident reconstruction evidence – whether expert opinions supported by found facts; PRACTICE & PROCEDURE – application by defendant to call additional expert evidence – exercise of discretion according to the dictates of justice – whether leave should be granted to enable defendant to call additional evidence from its crash reconstruction expert where a report sought to be relied upon from that expert was prepared in draft form during the trial and had not been served 28 days prior to the hearing as required by UCPR r 31.28 – whether defendant was entitled to leave to call oral evidence in chief from its crash reconstruction expert where that expert was not required for cross-examination on content of his already served reports – application of UCPR r 31.21

Legislation Cited:

Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5E, s 5R
Civil Procedure Act 2005, s 56, s 57, s 58
Motor Accidents Compensation Act 1999
Uniform Civil Procedure Rules 2005, r 31.20, r 31.21, r 31.24 - r 31.26, r 31.28, r 31.35

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Blacktown City Council v Hocking [2008] NSWCA 144
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Elayoubi v Zipser [2008] NSWCA 335
Kelly v Jowett [2009] NSWCA
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Manley v Alexander [2005] HCA 79; 223 ALR 228
Mason v Demasi [2009] NSWCA 227
McLennan v Nominal Defendant [2014] NSWCA 332
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Richards v Cornford (No 3) [2010] NSWCA 134
Sgro v Australian Associated Motor Insurers Ltd [2015] NSWCA 262
Strinic v Singh [2009] NSWCA 15

Texts Cited:

International Classification of Diseases, Version 10.R4(1.2)

Category:

Principal judgment

Parties:

Michael Timothy Cordin (Plaintiff)
The Nominal Defendant (Defendant)

Representation:

Counsel:
Mr P Doherty SC with Mr G Radburn (Plaintiff)
Mr J Poulos QC with Mr J Ryan (Defendant)

  Solicitors:
Trenches McKenzie Cox (Plaintiff)
Hall and Wilcox (Defendant)

File Number(s):

2014/150247

Publication restriction:

None

Judgment

Table of Contents

Factual background	[1] – [6]
Issues	[7] – [9]
Overview of the evidence	[10] – [15]
Credibility and reliability of testimony	[16] – [19]
Approach to assessing credibility of plaintiff’s evidence	[20] – [27]
Evidence from lay witnesses at accident scene	[28] – [102]
Mr Bessabava’s evidence	[29] – [38]
Mr Marshall’s evidence	[39] – [46]
Mrs Cordin’s evidence of events at the scene	[47] – [60]
Ambulance transport records	[61] – [80]
Mr Hartley’s evidence	[81] – [102]
Lismore Hospital records	[103] – [113]
Retrieval by air ambulance to Brisbane	[114] – [116]
Princess Alexandra Hospital records	[117] – [120]
Evidence from hospital doctors	[121] – [163]
Dr Welgama’s evidence	[126] – [154]
Dr Lando’s evidence	[155] – [163]
Lismore Council records	[164] – [166]
Police report of the incident	[167] – [170]
Evidence of Constable Antequil	[171] – [179]
Mrs Cordin’s evidence of subsequent events	[180] – [202]
Plaintiff’s evidence	[202] – [247]
Expert evidence	[248] – [345]
Opinions in the first report of Dr Carnavas	[252] – [261]
Oral evidence of Dr Carnavas	[262] – [298]
Opinions in first report by Mr Griffiths - 29 January 2015	[299] – [330]
Opinions in second report by Mr Griffiths - 2 March 2015	[331] – [336]
Dr Carnavas’ second report in response	[337] – [344]
Approach to resolution of competing expert opinions	[345]
Findings	[346] – [517]
Location of the accident scene	[348] – [353]
Condition of the road surface	[354] – [374]
Plaintiff’s retrograde recollection of events	[375] – [382]
Plaintiff’s manner of riding his bicycle	[383] – [393]
Plausibility of perception of a striking force from behind	[394] – [410]
Plaintiff’s anterograde recollection of events	[411] – [436]
Significance of statements in ambulance / hospital records	[437] – [466]
Handover of care of plaintiff	[467] – [477]
Significance of police and council records	[478] – [486]
Factual observations by Dr Carnavas	[487] – [496]
Factual observations by Mr Griffiths	[497] – [501]
Nature of plaintiff’s reconstructed account of the accident	[502] – [517]
Conclusion on credibility/reliability of evidence of the Cordins	[518] – [526]
Resolution of conflicting expert opinions	[527] – [529]
Reliability of conclusions of Mr Griffiths	[530] – [599]
Assumed location of accident scene	[531] – [535]
Assumed speed of the bicycle	[536] – [539]
Assumed contact of wheel / pothole	[540] – [542]
Assumed seated position of plaintiff	[543] – [547]
Assumed nature of road surface	[548] – [554]
Discrepant findings of damage	[555] – [567]
Lack of damage to frame / handlebars	[568] – [575]
“Lateral eccentricity” theory	[576] – [578]
Inconsistency with laws of physics	[579] – [599]
Reliability of opinions of Dr Carnavas	[600] – [607]
Conclusions on expert evidence	[608] – [611]
Involvement of an unknown motor vehicle	[612] – [644]
Alleged negligence	[645] – [659]
Causation of harm	[660] – [661]
Alleged contributory negligence	[662] – [665]
Reasons for evidence ruling during trial	[666] – [669]
Reasons for expert evidence ruling during trial	[670] – [723]
Disposition	[724]
Costs	[725]
Orders	[726]

Factual background

1. On the morning of Sunday 2 September 2012, the plaintiff, Michael Cordin, then aged 54 years was riding his sports mountain bicycle in a southerly and generally downhill direction on Minyon Falls Road, Dorroughby, NSW.

2. The plaintiff claims that whilst he was applying his brakes in the course of coasting in order to negotiate his way around a series of potholes located on a levelled out section of the road, a southbound motor vehicle struck his bicycle from behind.

3. The plaintiff claims that as a result of that collision, he was thrown forward from his bicycle and onto the roadway, thereby sustaining a head injury, which resulted in a period of unconsciousness, a contaminated laceration to the left side of his forehead, and injuries comprising compression fractures to his thoracic spine, injuries to both hands, wrists and knees, some disorientation, and resulting in some incoherence of thought and speech.

4. A more detailed diagrammatic summary of the plaintiff’s injuries has been prepared by the defendant’s accident reconstruction expert. This appears as the Appendix to these reasons. The plaintiff claims that his injuries were due to the negligence of the driver of that vehicle.

5. The plaintiff claims that due inquiry and search has failed to identify the owner or the driver of that motor vehicle, which is why these proceedings have been brought against NRMA Insurance Limited, representing the Nominal Defendant. The defendant has conceded that due inquiry and search for the alleged vehicle has been satisfactorily pursued.

6. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 and the applicable provisions of the Civil Liability Act 2002.

Issues

7. There was a fundamental dispute over whether a motor vehicle had been involved in the events that led to the plaintiff's injuries. The defendant claimed that the notion of the involvement of an unidentified motor vehicle was glaringly improbable. The principal submission of the defendant was that the plaintiff’s case was based on his own opinion that something must have happened involving a motor vehicle, and his reconstruction of events was directed to supporting that proposition: T218.26 – T218.37. The defendant's approach to that issue was one of suspicion. The defendant attacked the credibility of the plaintiff's evidence, and the evidence of the plaintiff's wife. The defendant also attacked the reliability of the evidence of the plaintiff’s accident reconstruction expert who supported the argument that a motor vehicle had struck the plaintiff’s bicycle from behind.

8. The defendant denies the negligence alleged, and in the alternative, relies upon a defence of alleged contributory negligence on the part of the plaintiff, an assertion which the plaintiff denies. As was indicated by the defendant, those issues involved a surprisingly large amount of factual material which required analysis and this is reflected in the length and detail of these reasons: T218.21.

9. The parties have agreed upon an assessment of the quantum of damages in the event the plaintiff's claim is successful: $350,000. It is therefore unnecessary to delve into further detail on matters of injury and treatment except insofar as they impact upon the assessment of the credibility and the reliability of the plaintiff's testimony on disputed factual matters that relate to the liability issues.

Overview of the evidence

10. The plaintiff gave oral evidence, and called evidence from his wife, Mrs Brenda Cordin, who had arrived at the scene after the event. Mrs Cordin had also been involved in the subsequent medical, police and council communications that were the subject of evidence in the defendant's case. The plaintiff did not call any other oral evidence from persons who had arrived at the scene and who had gone to his assistance.

11. The plaintiff also called oral evidence from an accident reconstruction engineer, Dr Paul Carnavas, to provide an expert analysis on the question of whether or not it was likely that a motor vehicle had been involved in the incident in which the plaintiff sustained his injuries.

12. On factual matters, the defendant called oral evidence from Mr Sathya Bessabava, who was first on the scene to attend to the plaintiff and give him first aid, Mr Kester Marshall, who also came onto the scene shortly afterwards, and Constable Aaron Antequil, who commenced the police investigation of the incident. The evidence of Constable Antequil concerned the nature and the content of the communications between the plaintiff, his wife, and the police after the incident.

13. The defendant also called other witnesses to explain aspects of the plaintiff's medical records in relation to his injuries, where it appears that only parts of those records were tendered. Explanatory evidence was called from Mr Terry Hartley, the ambulance paramedic who first attended upon the plaintiff at the accident scene, Dr Udeni Welgama, who was a registrar in emergency medicine, and Dr Joel Lando, who was a registrar in orthopaedics. Both of those doctors had assessed and treated the plaintiff after he was transferred by helicopter from Lismore Hospital to Princess Alexandra Hospital in Brisbane.

14. Before the matter was called on for hearing, during the course of a circuit list review, the parties were encouraged to take the opportunity for the opposing experts to meet in order to seek to narrow the scope of the matters in dispute between them, but a meeting along those lines did not eventuate: T84.6.

15. The defendant relied upon reports from an accident reconstruction expert, Mr Michael Griffiths, who was present at the hearing. The defendant did not initially intend to call him to give oral evidence as he was not required for cross-examination on his served reports.

Credibility and reliability of testimony

16. The parties did not question the credibility of the evidence of Mr Bessabava, Mr Marshall, Mr Hartley, Constable Antequil, Dr Welgama or Dr Lando.

17. I considered the evidence of Mr Bessabava and Mr Marshall to be credible, truthful and reliable in all respects. Whilst I considered Mr Hartley, Constable Antequil, Dr Welgama and Dr Lando to be credible and truthful witnesses, the reliability of aspects of their evidence required careful evaluation because their respective testimonies were understandably aided by refreshing their memories of the events from documents.

18. There were no challenges to the credibility of the evidence of the respective expert witnesses. However, there were fundamental differences within the opinions of those experts. Those differences stand to be resolved by an examination of the facts and the reliability of the analyses upon which those opinions were based: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.

19. The defendant made fundamental challenges to the credibility and the reliability of the evidence of both the plaintiff and his wife. During cross-examination, the defendant accused the plaintiff of fabricating his evidence for the purposes of monetary gain: T15.17 – T15.30; T49.38 – T50.4. The defendant also suggested to the plaintiff he was devising his answers to suit his case: T56.38 – T57.19. The defendant also submitted that parts of Mrs Cordin’s evidence should be disbelieved insofar as events and discussions about the accident occurred whilst the plaintiff was in hospital in Brisbane: T89.3; T98.44; T99.6; T106.5 – T107.50.

Approach to assessing credibility of plaintiff’s evidence

20. The focus of the defendant's attack on the credibility and the reliability of the evidence of the plaintiff and that of his wife was on the central issue of whether a motor vehicle had been involved in the circumstances of the plaintiff's injury.

21. That approach also called into question the credibility of the plaintiff’s evidence as to when he had first claimed that a motor vehicle had been involved in the incident. This therefore requires an evaluation of the available evidence from all other sources that touch upon the circumstances of the accident and its aftermath.

22. The defendant attacked the credibility of the plaintiff's testimony as to the claimed circumstances of the accident. In essence, that attack centred around the submitted proposition that the evidence given by the plaintiff concerning the circumstances of the accident was improbable, especially when evaluated against the documentary evidence of an historical nature comprising the ambulance, the medical, the police, and the council records, and the reports of the defendant’s crash reconstruction expert.

23. At the outset, a difficulty is identified with that proposition. This relates to the manner in which the plaintiff was cross-examined, in an at times insistent and pressing style, in which, with some exasperation, numerous answers sought to be given by the plaintiff in response to questions directed at him, were cut short by the cross-examiner interposing a further question. In those circumstances, a number of the plaintiff's interrupted answers were left incomplete: T14.44; T17.37; T17.42; T21.15; T21.45; T23.6; T23.14; T23.20; T26.10; T30.3; T31.2; T34.19; T35.22; T37.8; T38.16; T39.5; T39.35; T41.14; T43.37; T45.27; T47.40; T52.49; T56.20; TT62.10; T62.28.

24. Another difficulty emerged in the context of a credit analysis in assessing the proper construction to be placed upon the plaintiff's answers to multiple propositions contained within single questions that were put to him in cross-examination.

25. In my assessment, these matters made it difficult for the defendant to sustain a credit attack on the plaintiff's evidence. Nevertheless, the credibility and the reliability of the plaintiff's evidence must be evaluated on the available material.

26. The uncontroverted evidence described the plaintiff has having suffered significant pain, and for a time, disorientation and incoherence, as an aftermath of his injuries. The discharge referral note prepared at Lismore Hospital in preparation for the plaintiff’s transfer to the Princess Alexandra Hospital in Brisbane noted that apart from his head injury and his lacerated forehead, the plaintiff had symptoms of a central cord compression syndrome, crush fractures at the levels T6, T7, T8 and significant paraesthesia in both upper limbs, which was causing him distress, and for which he had been given intravenous analgesia of an unstated type and dosage at an unstated time or times: Exhibit “5”, Tab 3, p 25.

27. In view of the nature of the challenges made to the credibility and probity of the evidence of the plaintiff and his wife, as appears in the index to these reasons, I consider that it is appropriate to defer recording my findings of fact until a later stage of these reasons, and until after I have first examined the surrounding evidence from all the other sources for the purpose of undertaking an evaluation of the credibility and the reliability of the testimony of the plaintiff. The recording of those findings commences at paragraph [346] below.

Evidence from lay witnesses at the accident scene

28. The following paragraphs review the evidence of the persons who attended the plaintiff at the scene of the accident before the arrival of the ambulance. Although I have considered the evidence of Mrs Cordin as a whole, in my view, her evidence is capable of being conveniently considered in two parts, the first being her observations and actions at the accident scene, and the second relating to subsequent events. The credibility of aspects of her evidence was challenged in both respects.

Mr Bessabava’s evidence

29. The defendant called Mr Bessabava, a carpenter by trade, who is resident of the Byron Bay area, and who had been visiting friends in the district. He had been driving his vehicle in a southerly direction down Minyon Falls Road, which he described as a dirt road in poor condition, with rocks, potholes and loose gravel on the surface of the roadway: T169.40 – T170.5. He described the road as narrow, with a dry clay, loose dirt and rock surface, with potholes that had been there for some time: T171.24 – T171.38.

30. In the late morning, which he thought was about 10.30am or 11.00am, he was driving slowly, at about 40kph in a generally southerly direction. He had passed two car parks on the right side of the road before he encountered the accident scene: T170.10 – T171.2.

31. Mr Bessabava agreed that as he journeyed down that road, his visibility of the roadway ahead was very limited because of the location of bends in the roadway, with some stretches of visibility being for distances of 100 metres, or 200 metres, but generally providing low visibility: T175.26 – T175.37.

32. Initially, Mr Bessabava said he had seen no cars travelling in either direction as he drove from Dorroughby: T171.5 – T171.11. When he was asked whether he had seen any cars moving in the vicinity of the Minyon Falls car park, he was less certain, and said “I’m pretty sure they were just parked”: T171.15.

29. When Mr Bessabava arrived at the accident scene, he saw the plaintiff laying in a face down position on the road with his face partially immersed in a water filled pothole. He had first seen the plaintiff from an approximate distance of between 50 to 100 metres: T171.15 – T174.31. He immediately proceeded to assist the plaintiff by placing his own hand under the plaintiff's face in order to tilt the plaintiff’s face and head, which had been partially immersed in a water-filled pothole in the roadway. He then rolled the plaintiff over, at which time he noticed that the plaintiff was breathing heavily, and that he was semi-conscious: T172.10 – T172.50.

30. Mr Bessabava then assisted the plaintiff to his own parked vehicle, where he waited until further help and an ambulance arrived. In the meantime, he placed a towel around the plaintiff's head. Whilst doing so, he observed the plaintiff to sit up and remain there “till he got his consciousness back. But he wasn't really very coherent at all”: T173.1- T173.10.

31. Shortly afterwards, some other people arrived, including Mr Marshall, who then took over assisting the plaintiff until the arrival of other help: T173.12 – T173.20. Mr Marshall had arrived from the opposite direction of travel of the plaintiff and Mr Bessabava: T176.5. Mr Marshall had arrived after Mr Bessabava had already helped the plaintiff to his feet: T176.5. Mr Marshall stated that the plaintiff was disoriented at that time: T176.9.

32. Whilst Mr Bessabava was in the vicinity, he noticed the plaintiff's bicycle on the road in a location about a metre or two from where he had seen the plaintiff, but he was not able to indicate whether the bicycle was damaged, as that had not been his concern at that time: T173.39 – T174.8.

33. During the time that Mr Bessabava had assisted the plaintiff, he did not hear the plaintiff say anything about the involvement of a motor vehicle in the accident. Nor did he hear anyone else at the scene make a suggestion to that effect: T174.45 – T175.2. Mr Bessabava said that if he had heard such a suggestion, he might have called the police: T175.22.

34. The evidence of Mr Bessabava was not the subject of controversy in any way. It was not improbable in any respect, and I accept his evidence in its entirety.

Mr Marshall's evidence

39. The defendant called evidence from Mr Kester Marshall, a naturopath, who had been driving a van in the opposite direction to that in which the plaintiff had been travelling: T164 – T165.

40. Mr Marshall stated that he could not recall whether, during his journey to the scene of the accident, there had been any vehicles travelling towards him, that is, in a southbound direction: T165.47.

41. When Mr Marshall came upon the scene, he saw someone whom I infer to have been Mr Bessabava, to be standing next to the rear of a parked vehicle with the boot open, and with the plaintiff sitting on what he described as the bumper bar of that vehicle. He noticed Mr Bessabava, who seemed to Mr Marshall, to be very agitated, and a bit flustered: T166.1 – T166.25.

42. Mr Marshall made some observations concerning the plaintiff. He saw that the plaintiff had “a very nasty gash” to the left side of his forehead which had been attended to with the placement of a dirty towel to cover the wound: T166.29; T168.20. He attempted to converse with the plaintiff by asking him if he was okay. Mr Marshall observed the plaintiff to be “very confused”, and “didn't say anything, no, he was mainly mumbling”: T166.48.

43. Mr Marshall asked the plaintiff what had happened, and said the plaintiff replied: “I must have come off my bike”. At that time, Mr Marshall described the plaintiff as being “quite confused, obviously out of sorts”: T167.1 – T167.5.

44. Mr Marshall remained there with the plaintiff for about 30 to 40 minutes, until the arrival of the ambulance, which Mr Marshall's wife had called following their arrival at the scene: T167.10 – T167.23.

45. Mr Marshall continued to make observations of the plaintiff in that time. Mr Marshall said that the plaintiff had made no mention of a motor vehicle: T167.33. Mr Marshall expanded upon his earlier description of the plaintiff’s condition by describing the plaintiff as being “agitated, trying to get up to retrieve his bicycle, and making - I wouldn't even say conversation, but making noises alluding to the fact that he needed to get to his bicycle and get home”: T167.31 – T167.35. He added that the plaintiff was “very disoriented” at that time; T167.41.

46. The evidence of Mr Marshall was not the subject of controversy. It was not in any way improbable, and I accept his evidence in its entirety.

Mrs Cordin's evidence of events at accident scene

47. In the paragraphs that follow, I set out those aspects of the evidence of Mrs Cordin concerning her observations of the events surrounding the plaintiff’s accident that do not involve controversy.

48. Mrs Cordin travelled to the accident scene a little while after receiving a telephone call from someone who had informed her that the plaintiff had been found on the road: T86.24. She said she had received that call at 10:59am: T86.42. She said that she left home at about 11:04am to travel to the accident scene: Exhibit “E”, par 3.

49. Mrs Cordin said, without contradiction, that she had arrived at the accident scene before the arrival of the ambulance, and on her arrival, she saw her husband laying in the back of a small black four-wheel drive vehicle, with a towel on his head: T87.8.

50. At the time, Mrs Cordin had tried unsuccessfully to speak to the plaintiff, and she had observed that he was trying to sit up, that he had a towel on his head, and that he was screaming in pain, and not wanting to be touched: T87.31 – T87.42.

51. Before seeing the plaintiff, Mrs Cordin had rung triple zero emergency number several times to ask about when the ambulance was likely to arrive: T87.50; Exhibit "E", par 8. That evidence was consistent with the timed contents of the ambulance records: Exhibit "5". Tab 1, p 12.

52. After her unsuccessful attempts to speak to the plaintiff, Mrs Cordin proceeded to take a photograph of the pothole on the roadway in which she had seen blood: Exhibit “C”; T87.45 – T88.9. That photograph, which has been enhanced, is reproduced below:

[Exhibit “C”].

53. Mrs Cordin described the pothole as being about the size of a watermelon, and she observed that the pothole contained water from the last shower of rain, and that it was mixed with blood: Exhibit “E”, par 9.

54. Mrs Cordin said that she then gathered up the plaintiff's broken glasses from the roadway, she took possession of the plaintiff's bicycle and the broken pieces of his helmet, she placed them in her vehicle and drove home. Later, at about 1.00pm, she drove to Lismore hospital: T88.34 – T89.5.

55. Mrs Cordin agreed that when she saw her husband laying in the back of the vehicle, which I infer belonged to Mr Bessabava, she was trying to work out what had happened, and in the course of those events, her mental processes included the notion that a motor vehicle may have been involved in the incident in which her husband became injured: T104.8 – T104.23.

56. Mrs Cordin denied the suggestion that by the time she had arrived at the accident scene she had in her mind the notion that her husband had been struck by a motor vehicle: T103.48. Instead, she stated that she was very worried and confused at the scene of the accident as to how the accident had occurred: T103.50 – T104.2. She had also stated as much in her statement to the police dated 23 October 2012, in which she said that at the scene, she was worried and confused as to how the accident had happened, and she enquired of those at the scene of the whereabouts of the car that she thought had hit her husband. She said that in response to her enquiry, no-one there appeared to know anything about the involvement of a motor vehicle: Exhibit "E", par 9.

57. Although the evidence of Mrs Cordin as cited in the preceding paragraph may on its face suggest controversy as to her mindset on arrival at the accident scene, on a consideration of her evidence as a whole, in my view, nothing turns on this evidence concerning background matters. The question of whether or not it was Mrs Cordin who had suggested to her husband that there had been involvement of a motor vehicle in the accident when she saw him in hospital, is reserved for later consideration.

58. Mrs Cordin was asked about whether she had seen skid marks on the roadway at the accident scene, and she answered that the roadway was still wet, and that she had seen many tyre marks on the roadway: T104.40 – T104.46.

59. Whilst that evidence appeared to be at some variance to the evidence of Mr Bessabava, who described the road surface as being dry, I do not discount the possibility that the difference in their respective evidence concerning that observation may have related to wetness and tyre marks that could have been due to subsequent traffic, or rescue activity near the water-filled pothole where the plaintiff had been found.

60. In my view, the cross-examination of Mrs Cordin on this point was not sufficiently specific to reliably raise a point of contradiction on this aspect of her evidence. It appears from her evidence that generally, she had not been looking for skid marks on the roadway: T105.34. I do not consider this point to reflect adversely on Mrs Cordin’s credit as a witness.

Ambulance transport records

61. Some ambulance transport records relating to the plaintiff were tendered by the defendant: Exhibit “5”, Tab 1, pp 1 – 13. They comprised three discernible segments which are identified as follows.

62. The first segment (Exhibit “5”, Tab 1, pp 11 – 13) was a certified copy of a computerised Incident Detail Report record dated 2 September 2012. It shows timed details of when the call for an ambulance was logged, followed by the sequence of events involved in the assignment and the despatch of the ambulance, the activity log of the job until the care of the plaintiff was handed over to the staff at Lismore Hospital, as well as some related commentaries.

63. The second segment (Exhibit “5”, Tab 1, pp 1 – 6) is described as a consolidated copy of the record of attendance of the ambulance at the scene and afterwards to assist the plaintiff on 2 September 2012. The consolidation was carried out by someone other than those ambulance officers who had attended the plaintiff at the accident scene and who had made the original notes.

64. The third segment (Exhibit “5”, Tab 1, pp 7 – 10) relates to the helicopter air ambulance retrieval transportation of the plaintiff from Lismore Hospital to the Princess Alexandria Hospital in Brisbane on the evening of 2 September 2012.

65. The significance of the first segment of those records is as follows.

66. First, that first segment of the ambulance records shows that the call for an ambulance was received at 10:58:45am, and that an ambulance that was already en route was allocated the job at 11:04:26am, the allocation process apparently having taken some 22 seconds. The ambulance was stated to have arrived at the scene at 11:32:50am, a matter to which I shall shortly return: Exhibit “5”, Tab 1, p 11.

67. Secondly, the first segment of those ambulance records provides objective confirmation of the evidence given by Mrs Cordin, where she stated that she had rung the 000 number twice before the ambulance arrived: T87.50. The records show that two private calls were respectively made to the 000 number at 11:15:47am and 11:33:22am: Exhibit “5”, Tab 1, pp 12 and 13. The records show that the first call appears to have been made from the plaintiff’s home, as that was the address recorded for the call, and the second call was recorded as having been received from the scene of the accident.

68. Thirdly, the first segment of those ambulance records shows that at 11:13:54am, which was 2 minutes before Mrs Cordin had rung the 000 number, and before any ambulance officer had spoken to the plaintiff, and some 9 minutes after the ambulance had been despatched to the scene, and well before they arrived at the scene, the ambulance personnel had somehow been made aware of the fact that the plaintiff had a past history of jaw replacement surgery 10 months earlier: Exhibit “5”, Tab 1, p 12.

69. This evidence raises a question as to whether or not it was the plaintiff who provided that history to Mr Terry Hartley, the ambulance paramedic, as was stated in Mr Hartley’s evidence, or whether this information was conveyed to ambulance personnel over the telephone beforehand by someone else, and possibly later either confirmed or assumed by Mr Hartley from what he had been told: T79.41 – T80.15; T82.19.

70. As that aspect of history taking was unclear, in my view this raises a doubt about the sequence of Mr Hartley’s history taking from the plaintiff, and its content. Although there was some oral evidence that the ambulance service had a protocol for gathering information at an accident scene, Mr Hartley stated that the procedure for following such protocols was adaptable, and it varied according to the circumstances: T79.13. In my view, this therefore suggests that unreserved reliance cannot be placed on considerations of usual professional practice in order to make assumptions from which to draw positive inferences as to the sources of information about the plaintiff or about details of the accident itself: Elayoubi v Zipser [2008] NSWCA 335, at [86].

71. Fourthly, the first segment of the ambulance records shows that there appears to be a minor timing discrepancy in the record, as the front sheet shows the ambulance arrived at the scene at 11:32:50am, whereas the timed commentary log shows that at 11:33:22am, an enquiry was received about the delay in the arrival of the ambulance, and that at 11:33:37am, it was recorded that during that call, the ambulance had arrived: Exhibit “5”, Tab 1, p 12.

72. It could be that the arrival time of the ambulance was incorrectly recorded, or that there was a discrepancy in the calibration of the timing devices at the ambulance headquarters where the calls were logged, compared to the calibration of the timing device in the ambulance itself, where the arrival time was recorded. The issue was not explored in the evidence, including the issue of the manner in which such details were recorded. It therefore remains an unresolved curiosity.

73. Fifthly, the first segment of the ambulance records shows that the ambulance remained at the scene for about 5 minutes, and it then departed the scene at 11:38.40am, arriving at Lismore Hospital, some 65kms away, 33 minutes later, at 12:12:40pm, (or 12.17pm as stated by Mr Hartley at T81.6), triage having occurred at 12.25pm, and handover then appeared to have been completed about 33 minutes later, at either 12.40pm or 12:45:54pm: Exhibit “5”, Tab 1, p 12, and also at p 2.

74. The second segment of the ambulance material comprising the consolidated record, which sets out the case history portion of that record, identifies the nature and description of the case as follows:

[Exhibit "5", Tab 1, p 2]

75. That description indicates the plaintiff was orientated in place and time at some stage when Mr Hartley had attended to him, but beforehand, there had been a query over a period of what was described as decreased or lost consciousness. I infer from the content of that description, that the notes were either written well into the journey to hospital, or that they were written after the plaintiff had arrived at hospital. Otherwise the “en route” comment in the case summary notes would have had no relevance. I draw that inference from the terms of the note which describes the stability status of the plaintiff en route. In my view, it is more likely to be either an after the event summary, or a summary that was noted well into the journey to hospital.

76. A question arises as to the source for the information recorded in the ambulance case summary, which states that the plaintiff fell from his bicycle after hitting a pothole, as cited in paragraph [74] above. Mr Hartley specifically denied that the plaintiff had told him he had hit a pothole. Mr Hartley said the plaintiff had told him he had fallen from his bike: T82.47. Neither the plaintiff nor any of the witnesses gave such an account. This suggests an element of assumption or inaccuracy has been incorporated into the ambulance records. According to Mr Hartley, whom I accept on this point, at the outset of his contact with the plaintiff, he said the plaintiff was confused as to how he had fallen from his bicycle: T81.16.

77. Accordingly, the possible explanations for the note to the effect the plaintiff had struck a pothole are either that the note was based on an admission made by the plaintiff, or that the author of the summary note had made an assumption or had drawn a conclusion to that effect from the described circumstances that were evident at the accident scene, including the apparent absence of any evidence of another vehicle being involved in the incident. In view of Mr Hartley’s evidence at T82.47, I consider it unlikely that the source of the account in the ambulance records of the plaintiff striking a pothole came from the plaintiff himself at that time. In my view, given the plaintiff’s described state of incoherence, I also consider it was unlikely that it came from him, having regard to Mr Hartley’s specific evidence on that point.

78. There is little doubt that the accident caused the plaintiff to suffer significant pain. A question arises as to why there was no record made of the ambulance personnel giving the plaintiff any analgesic medications en route to the hospital. There is little doubt the ambulance paramedics would have had such medication available to give to the plaintiff if it was indicated. Whilst it is possible such medication was withheld due to the plaintiff’s head injury so as not to interfere with his consciousness before a medical assessment was undertaken, no definite conclusions can be drawn in the circumstances. The absence of any record of administration of analgesia by ambulance personnel precludes the drawing of inferences that the plaintiff's state of alertness and ability to coherently and accurately communicate was in any way affected by painkilling medication whilst he was in the care of the ambulance paramedics. However, that does not exclude the inference that the plaintiff remained significantly affected by pain: T87.31 – T87.42; Exhibit “5”, Tab 1, p 5. The nature of his injuries, the evidence of Mrs Cordin, the ambulance records and the hospital records indicate that he was in significant pain. I consider this would have been somewhat distracting for the plaintiff, and it would have very likely affected his communications.

79. The third segment of the ambulance records, which relate to the evening helicopter transfer of the plaintiff to Brisbane, throws no light on the liability issues.

80. The questions in the preceding paragraphs will be taken up after the evaluation of the evidence of Mr Hartley, and after a review of the medical records.

Mr Hartley's evidence

81. Mr Hartley was an ambulance paramedic specialist with some 28 years of experience. He had attended the accident scene to assist the plaintiff and in order to transport him to Lismore Hospital. Mr Hartley had been accompanied by another ambulance officer who was not called to give evidence: T75.6 – T75.36.

82. Mr Hartley gave his evidence some 3 years after the event, having refreshed his memory some months before the hearing, from a copy of the handwritten case slip notes which he had written at the time he attended to the plaintiff: T75.25 – T75.49. Those notes were no longer available to him when he gave his evidence: T76.4.

83. I consider that Mr Hartley’s evidence on matters that touch upon the liability issues requires careful evaluation before acceptance because that evidence was understandably based upon a refreshed memory in circumstances where, in the ordinary course of events, he would not be expected to have had a detailed recollection of the events in question by reason of the nature of his work, and because of the many professional attendances he would have experienced when tending to the needs of other patients at the scenes of various accidents and emergencies in the course of his work over the past 3 years.

81. The only notes that Mr Hartley had available to him at the hearing comprised typed ambulance records that had been transcribed into an electronic medical record, or “put into type form on some unknown date” by someone else: T76.13 – T76.23. This too was a sufficient reason to evaluate his account of events with due care, as it was based upon a memory that had been refreshed from those materials. The need for such caution also arises because those notes contained an historical account of the front wheel of the bicycle having hit a pothole, which he had in that respect, specifically disavowed: T82.47.

82. The typed ambulance documents from which Mr Hartley gave his evidence were tendered: Exhibit “5”, Tab 1, pp 1 – 6. Mr Hartley’s explanation of events based on those records, appears in the following paragraphs.

83. Mr Hartley stated that from the records, it appears that his ambulance had been despatched and was en route at 11.04am, and that it was at the scene at 11.32am: T78.3. He described having had a general practice or system when attending accidents of this nature: T78.16. I gained the impression that the implementation of that general practice or system was not a rigid or invariable practice, but instead, was adaptable as he said, and depended upon accommodating the variable circumstances that would be seen at any given accident scene: T78.21.

84. Mr Hartley made no inquiries as to who owned the vehicle that he had seen at the accident scene, nor did he recall any details of who else was at the scene, nor did he make any observations in relation to the gender of those persons: T79.31 – T79.39.

85. Mr Hartley explained this as follows:

“Q. This is an accident that occurred on the road, and when you get there, is it part of your protocol to ask how an accident might have occurred?

A. Our initial response is to the patient, see what patients we have and what has been involved, and yes, if it has been a car accident or a motor bike accident, what else has been involved, and then we organise if it is two patients or just one patient.”

[T78.23 - T78.28]

89. In my view, it appears that Mr Hartley may well have inferred from the absence of any evidence available to him of the involvement of a motor vehicle in the plaintiff’s accident, that no such vehicular involvement had occurred.

90. Mr Hartley went on to state;

“Q. When you arrived at the scene, what did you see?

A. There was a male patient, had blood all over his face, mud, covered in mud, and he was in the back of a ute if I can remember correctly, and he was the first person I went to.

Q. Did you have a conversation with him?

A. Yes I did.

Q. When you had this conversation with him, did you follow some system that you had adopted, what did you do?

A. I questioned the patient on what happened, what he remembered, trying to get details of his memory and actually it is a protocol that we -- a procedure that we follow and with experience you adapt it to what you see and what you do. It varies to different process.

Q. What injuries did he appear to have?

A. He had a head injury, he had a laceration to his face, he had his bike helmet that was already off. He was just covered in mud and the idea was to get him like so we could actually clean him up and have a look at him at the time.

Q. Did you ask him what had happened?

A. Yes I did.

Q. Do you recall what he said?

A. He said he fell off his bike.

Q. Don't answer this question by saying anything other than yes or no, was there any conversation with other persons at the scene that you had?

A. Not that I had, no.”

[T79.1 – T79.30]

91. In my view, that latter evidence would very likely have served to lead Mr Hartley to assume that there was no vehicular involvement in the plaintiff’s accident, especially as no-one else at the scene had knowledge of the involvement of a motor vehicle.

92. In giving that evidence to the effect that the plaintiff had fallen from his bicycle, Mr Hartley did not qualify it, or refer to any state of disorientation, incoherence or confusion on the part of the plaintiff, or of the plaintiff not making conversation, as was variously described by Mr Bessabava and Mr Marshall, whose evidence was unchallenged, and which I accept. This raises a question as to the accuracy or reliability of the process by which Mr Hartley obtained information from the plaintiff at the scene or en route to hospital.

93. Mr Hartley interpreted some of the abbreviations used in the ambulance records. He identified the plaintiff as the source of the information and the history he obtained, which included the plaintiff's past medical history of a previous jaw replacement 10 months earlier, and of a subsequent MRSA infection: T79.41 – T80.15. That item of evidence requires careful evaluation in light of an earlier described entry in the ambulance records as identified at paragraph [68] above, which raises a doubt as to whether it was in fact the plaintiff who provided those details of his earlier medical history.

94. Mr Hartley could not initially remember whether at the scene he had noticed anything about the plaintiff's helmet, but then, on viewing the notes, he stated that he had looked at the helmet because it was part of his examination of the plaintiff's face for the purpose of identification of his injuries: T81.16. He identified the time of arrival of the ambulance at Lismore Hospital as being 12.17pm: T81.7.

95. Mr Hartley recorded his observation of the plaintiff's vital signs, noting that the plaintiff appeared calm and quiet, and that his breath sounds were clear: T80.40. At 11.40am, he recorded the plaintiff's Glasgow Coma Score (GCS) at 15, and noted that on three occasions, the plaintiff's speech was clear and continuous: T81.10. The context, use and relative meaning of those terms requires evaluation in light of other entries in the ambulance records tendered.

96. Mr Hartley was asked some hypothetical questions as to what might have been the case if the plaintiff's speech had not been clear and continuous, and if there had been any mention of the involvement of a motor vehicle in the subject accident:

“Q. What if his speech was not clear and continuous, what would that indicate to you as an ambulance officer?

A. It would probably have had a serious head injury but, at the start, he was a little bit confused at the -- when I first spoke to him about how he did it, how he fell off, did he remember anything but he said he fell off his bike as I have stated. The rest of the reviews have been done during the car, like the constant talking, he didn't repeat questions, he didn't ask me to go over something again, it was just, it applied to anything I asked him, as I said, his eyes were spontaneous, he was aware of place and time, and he obeyed commands. If I ever asked him a question, he answered it.

Q. If, this is a hypothetical question to you, if a patient was found on the roadway injured and he said to you that he had been struck by a motor vehicle, what responses would you make to that situation?

A. That becomes a different situation for us because then we are looking at two patients, so I would treat the one patient, that patient there, and my partner would then go looking for the driver of the car.

Q. If you couldn't find the driver of the car, if there was nobody there, assuming it is a country road?

A. There was people around and, as I said, I don't recall at all, anyone saying anything about a car being involved.

Q. I am asking you about a hypothetical situation, not the actual one. If a person said, "I was struck by a car", what steps do you take, if you can't find the driver of that car at all to do an interview or talk to him?

A. The only steps that I would be taking would be that the police would be asked for -- to attend the location with us, but my treatment of the patient would remain the same.”

[T81.13 – T81.41]

97. Mr Hartley’s evidence at T81.15 as cited in the previous paragraph was of some relevance because the plaintiff did have a serious head injury, as was later confirmed at the Princess Alexandra Hospital. His evidence, at T81.16, suggests that the plaintiff’s state of confusion at the time of Mr Hartley’s first contact with him may have impeded the reliability of any information obtained from him by Mr Hartley.

98. Mr Hartley was asked to explain the GCS of 15 as referred to in the notes. He did so in the following terms:

“A. The Glasgow coma score is relating to the patient's level of consciousness. His eyes, his eyes always are spontaneous, they were open at all times he spoke to me, they were never -- I didn't have to shout, stir him up or do any painful stimuli to make him open his eyes. His verbal response, he was orientated, he was orientated to place and time, he knew where he was, told me what had happened, that he had come off his bike. He told me about his medical history, that he had had a jaw replacement in Gold Coast Hospital. He obeyed commands and when I asked him to do things, he responded in the appropriate manner.

Q. Just one question about page 2, you see past history there, you have written or it is written in this form, "Left side, a jaw replacement"?

A. Yes.

Q. Was this section of your pursuit of information one that followed the examination of the patient?

A. Yes.

Q. This is, in effect, set out in a different order to what you

A. This is my first line of treatment is to the patient, to find his injuries, sorted it out, once we get him into the car and then we are dealing with it, we then asked the past history of epilepsy, diabetes, and all that and he informed me that he had a left sided jaw replacement, he was on Sinumax and that he wasn't allergic to anything. The risk factors is basically at the bottom and that relates to diabetes, cardiac issues, hypertension and other diseases.”

[T81.47 – T82.21]

99. The impression I gained from Mr Hartley’s evidence at T81/T82 in which he said the plaintiff “had come off his bike” was that this account was a short form of explanation, which, in view of the plaintiff’s state, did not appear to involve the products of an in depth questioning as to how this had occurred. In considering Mr Hartley’s evidence at T82.14, no evidence was called to equate the plaintiff’s level of consciousness with the appropriate functioning of his mental and communication faculties. In those circumstances I consider that the evidence of Mr Hartley to the effect that the plaintiff was appropriately obeying commands does not provide a useful insight into the plaintiff’s mental functioning.

100. Mr Hartley’s last dealing with the plaintiff was when he handed over the plaintiff's care to the nursing staff at Lismore Hospital, at which time he said that he would have told those persons who were taking over the care of the plaintiff that the mechanism of the accident was that “he has fallen off his push bike”: T82.40.

101. When the version of events of the incident to the effect the plaintiff had fallen from his bicycle was further explored in cross-examination, Mr Hartley did not add any further detail of that conversation with the plaintiff other than “he told me he fell off his bike”: T82.47.

102. I accept that Mr Hartley did his best to recount the facts as he understood them based on an aided memory that had been refreshed from the transcribed and typed ambulance records in circumstances where the original notes which had based those records were no longer available.

Lismore Hospital records

103. The defendant tendered extracts from the Lismore Hospital records: Exhibit “5”, Tab 2, pp 14 – 23. I infer from the content of those materials, that what was tendered does not represent the complete record of the plaintiff's stay at Lismore Hospital. In my view, the content of the first report of Mr Griffiths confirms that conclusion. By way of further example, there is no record of any medication chart evidencing that painkilling or other medications were administered to the plaintiff, and whether any of those medications would have affected his level of consciousness, or his ability to reliably focus upon and communicate important information.

104. Such medications had undoubtedly been given to the plaintiff at Lismore Hospital, as it appears that the plaintiff was referred to the surgical team for surgical washout and debridement of his facial wound in the operating theatre (Exhibit “5”, Tab 2, pp 15 – 16) and the only record of medications having been given were the narrative descriptions of intravenous administration of analgesia, antibiotics and tetanus prophylaxis: Exhibit “5”, Tab 2, p 16. Any medication charts recording what was given, in what dosages, at what times, and with what effect, were notably absent.

105. In my view, the incomplete nature of the evidence comprising the Lismore Hospital records necessarily limits the scope for the drawing of reliable inferences from those records as to the detail of the content of conversations between the plaintiff and hospital staff concerning the details of, or the mechanism of, the accident, and the reliability of that information.

106. The triage notes of the Lismore Hospital contain the following entry:

[Exhibit “5”, Tab 2, p 17]

107. The nursing notes of the Lismore Hospital contain the following entry:

[Exhibit “5”, Tab 2, p 16]

108. At 17:30hrs on 2 September 2012, the orthopaedic consultant at Lismore Hospital made a handwritten entry in the plaintiff's progress / clinical notes stating: “Fall from pushbike dirty road struck pothole found unconscious …”: Exhibit “5”, Tab 2, p 19.

109. The sequence of that note suggests that the plaintiff had struck a pothole with his head after he had fallen from his bicycle.

110. At the same time on 17 September 2012, the senior orthopaedic resident medical officer at Lismore Hospital made a note that stated: “Pushbike trauma”: Exhibit “5”, Tab 2, p 20.

111. Subsequently, at an unstated time on the same date, following a general surgical consultation, the following note was made by the consultant at Lismore Hospital:

[Exhibit “5", Tab 2, p 21]

112. An extract of the general medical notes from Lismore Hospital, which contains some obliteration of text, apparently due to hole punching of the document, is reproduced as follows:

[Exhibit “5”, Tab 2, p 14]

113. A subsequent entry in the Lismore Hospital notes on 6 December 2013 makes reference to a previous pushbike accident in September 2012, which is an obvious reference to the subject accident: Exhibit “5”, Tab 2, p 23.

Retrieval by air ambulance to Brisbane

114. On the evening of 2 September 2012, the air ambulance retrieval team took over the plaintiff's care for inter-hospital transport at 19:57hrs and the plaintiff was noted to have arrived at Princess Alexandra Hospital at 22:10hrs on the same night. There were 4 members of the retrieval team noted on the retrieval record, one of whom was noted to be a medical officer, Dr Hazan. The qualifications or designations of the others who attended on the plaintiff were not stated.

115. The clinical information provided to the retrieval team about the plaintiff was that he was in need of spinal care following a history of spinal injury after he “came off his pushbike”. Those notes also recorded a query as to loss of consciousness, and a history of compression fractures in the region T6 – T8, and “hypersthesia (sic) to limbs large laceration to [L] forehead”: Exhibit “5”, Tab 3, p 2.

116. The retrieval notes contained no reference to any medications being administered to the plaintiff whilst he was in transit for the 2 hours and 13 minutes of the transfer flight. The retrieval record stated that the plaintiff's medical notes, which I infer to have been the Lismore Hospital notes, were sent with the patient: Exhibit “5”, Tab 3, p 2.

Princess Alexandra Hospital records

117. The defendant also tendered extracts from the records of the Princess Alexandra Hospital: Exhibit “5”, Tab 3, pp 24 – 26. As was the case with the Lismore Hospital notes, copies of the medication charts were not included in the exhibit. Furthermore, the medical notes referred to in the retrieval notes (as distinct from the discharge referral letter from Lismore Hospital at Exhibit “5”, Tab 3, p 25) were not copied into the exhibit.

118. In view of the defendant's credit attack on the plaintiff as to what histories the plaintiff had given to hospital staff as to the details of the occurrence of the accident, fairness requires that those histories be reviewed in their entirety, and not just limited to those which the defendant chose to bring into focus during cross-examination of the plaintiff. That consideration is not entirely possible due to the selective tender of portions of the notes as found in the exhibit.

119. The various summaries of the histories which followed the multiple examinations of the plaintiff at Princess Alexandra Hospital that are the subject of evidence, are logged and summarised in the chronological sequence appearing in the records, as follows:

1. At 10.15(pm) on 2 September 2012, an emergency department doctor, Dr Udeni Welgama, undertook a trauma assessment of the plaintiff. Having heard Dr Welgama’s oral evidence, in which he stated that he wrote up his notes after the event, it appears that he may have examined the plaintiff after 10.15pm. This raises the possibility that the plaintiff was seen by the triage nurse first, notwithstanding Dr Welgama’s note. This is not entirely clear: Exhibit “5”, Tab 3, pp 29 – 30. Dr Welgama’s notes of the incident state the plaintiff had a “mountain bike accident” in which the plaintiff “went over the handlebars”. His notes were concerned with surveying the plaintiff’s medical problems requiring management and treatment rather than investigating the precise means by which the injuries occurred, as would be the focus of a liability investigation. Dr Welgama’s notes stated that on his primary survey, the plaintiff was speaking full sentences. However, the notes do not state whether he was coherent in speaking those sentences, or whether the content of those sentences was appropriate to the circumstances: Exhibit “5”, Tab 3, p 30;

2. At 22:18hrs on 2 September 2012, a triage nurse noted the plaintiff's presenting problem as being a “fall off bicycle onto ground” with compression fractures to T7, T8, T9; a queried central cord compression; a queried closed head injury, facial swelling, a facial and head laceration, swelling and bruising to both wrists and forearms, and hyperparasthesia: Exhibit “5”, Tab 3, p 27. Whilst it would seem to be more logical that the plaintiff was first seen by the triage nurse, that may not have been so in this instance because the receiving hospital would have had advance notice of the nature of the plaintiff's condition, and his medical needs as a result of prior inter-hospital communications;

3. At 22:18hrs on 2 September 2012, an emergency department doctor, Dr Stephen Torbey, noted the following:

[Exhibit “5”, Tab 3, p 26]

4. At 22:30hrs on 2 September 2012, an Emergency Department resuscitation flow chart was partly completed. In that document, the accident was described as involving a “fall over handlebars of mountain bike LOC unknown period of time”. It was noted the plaintiff was being treated by laying flat, and was given cephazolin 2g, fentanyl 300mcg, 10mg morphine, ADT, 4mg ondansaton and 1g paracetamol. The commencement and the duration times of the administration of those drugs was not described in the form of a medication chart showing the prescriptions, the authorisations and the administration times of those drugs: Exhibit “5”, Tab 3, p 28;

5. At 01:22hrs on 3 September 2012, Dr Welgama made the following notes:

[Exhibit "5", Tab 3, p 26]

6. At 01:30hrs on 3 September 2012, the plaintiff underwent an examination by Dr Lando, an orthopaedics registrar. This was because of concerns held about a spinal injury. Either Dr Lando, or the spinal consultant, Dr Cheung, made the note: “mountain bike accident at 12:00 today fell over handlebars + axial loading on helmet, ? LOC …”: Exhibit “5”, Tab 3, p 31. Although at that time a spinal cord injury was thought to be unlikely, the treatment plan was to admit the plaintiff, to pursue further imaging, to continue a nil by mouth regime, presumably in anticipation of a possible need for surgery or anaesthesia, and in the meantime, to provide intravenous fluids: Exhibit “5”, Tab 3, p 32. There was no fluid balance chart included in the notes documenting that process;

6. At 02:50hrs on 3 September 2012, the plaintiff underwent a general surgical review of the injuries to his face and abdomen. At that time, the details of the accident were summarised as “mountain bike accident 12pm today … was riding mountain bike fell over handlebars & onto head [symbol for with] axial loading on helmet ? LOC” : Exhibit “5”, Tab 3, p 33.

7. At 07:30hrs on 3 September 2012, the plaintiff was examined by a registrar and some resident medical officers. The only reference to the cause of the injuries under review was the short form of note stating “- Fall from Lismore”: Exhibit “5”, Tab 3, p 34;

8. At an unstated time after 07:30hrs on 3 September 2012, the plaintiff underwent a plastic surgery review, following which it was planned to operate upon him to repair his facial laceration. At that review, the details of the accident were summarised as “mountain bike accident 2/9/12 … was riding mountain bike yesterday - → hit pothole & went over handlebars hit head, LOC …”. At that time, the plaintiff had remained “NBN” or nil by mouth in anticipation of surgery being carried out on his wound: Exhibit “5”, Tab 3, pp 34 – 36;

9. At an unstated time on 3 September 2012, Mrs Cordin signed a patient election form on behalf of the plaintiff, the purpose of which was to consent to the plaintiff being treated as a public patient by doctors assigned by the hospital. The defendant relied upon a ticked box on that form, the effect of which represented that the injury the subject of the hospital admission did not arise out of a motor vehicle accident: Exhibit “5”, Tab 3, p 37;

10. At 15:20hrs on 4 September 2012, a hospital occupational therapist saw the plaintiff and noted the history of a “fall from a mountain bike”. In the clinical setting there were apparent concerns expressed about the plaintiff's cognitive functioning. In my view, although such problems appear to have been recognised relatively late in the post-accident period, I consider it is more likely that such problems with the plaintiff’s cognitive functioning would have been present immediately following the accident. In that context, with specific reference to the plaintiff's recollection of the accident, it was noted that he had an intact anterograde memory, and some retrograde amnesia, in which his first memory after the accident was recorded as “being in passerby’s car & then QAS trip to hospital”. At that time the plan was to test the plaintiff's memory functioning at a different level of testing on the following day: Exhibit “5”, Tab 3, pp 38 – 39. I infer from the context of that reference in the notes to QAS that it referred to the Queensland Ambulance Service;

11. At 21:20hrs on 4 September 2012, the notes indicate the plaintiff was seen by nursing staff, and he was given the drug Endone for pain relief whilst awaiting surgery: Exhibit “5”, Tab 3, p 39. There was no corresponding medication chart documenting the administration of that drug;

12. At 03:30hrs on 5 September 2012, it was noted that an hour earlier, the plaintiff had expressed some agitation about when he would be going to the operating theatre for treatment of his injuries. It appears that his operation scheduled for 17:00hrs that day had been cancelled: Exhibit “5”, Tab 3, p 39;

13. At an unstated time on 6 September 2012, the plaintiff was reviewed by the plastics team, at which time it was again noted he had been involved in a “mountain bike accident”. That review was after the plaintiff's forehead wound had been repaired. At that time, a further review of the plaintiff’s condition was scheduled one week later: Exhibit “5”, Tab 3, p 40. It appears the repair was carried out in the operating theatre at 11:22hrs on 6 September 2012: Exhibit “5”, Tab 3, p 44;

14. At 18:35hrs on 6 September 2012, it was noted that the plaintiff had been reviewed by the orthopaedic resident, who scheduled a further review for the next day. At this time there were no further entries made concerning the mechanism of the accident: Exhibit “5”, Tab 3, p 40;

15. At an unstated time on 6 September 2012, an internal hospital imaging request form was prepared which simply re-iterated the clinical history “fell off mountain bike”: Exhibit “5”, Tab 3, p 41;

16. At an unstated time on 7 September 2012, the plaintiff underwent a driver assessment test by a hospital occupational therapist, at which time the indication for the process was stated to be “mountain bike accident → LOC at scene, cognitive deficits noted on screening…”. At that time, it was also noted that the plaintiff's impairments included problems with reduced mental control, memory, orientation, and reduced attention: Exhibit “5”, Tab 3, pp 42 – 43;

17. On 7 September 2012, a hospital discharge summary was prepared, stating amongst other medical details, that the plaintiff had been admitted for a “Mountain bike accident with T spine fracture”. Whilst that form referred to available information fields to be completed for medications at admission, at discharge, and when medications were ceased, those fields were ambiguously completed with the words “Nil Entered”: Exhibit “5”, Tab 3, pp 44 – 48;

18. On 7 September 2012, the plaintiff was referred to the Brain Injury Rehabilitation Service run by Queensland Health with a history of “Recent Mountain Bike Injury” and a request for review of “ongoing cognitive difficulties impacting on goals for return to driving & return to work in the future”: Exhibit “5”, Tab 3, pp 49 – 50;

19. On 16 October 2012, the plaintiff was reviewed as a hospital outpatient, at which time the context of that review was noted to be “post mountain-bike accident”: Exhibit “5”, Tab 3, pp 51 – 52;

20. On 14 November 2012, the orthopaedic unit of the hospital prepared a report at the request of the plaintiff's solicitor, in which the mechanism of the accident was stated as being: “He states that he fell from a pushbike approximately at noon on 2 September 2012”. At that time, it was stated that the plaintiff's acute pain would be expected to settle down within the first 4-6 weeks: Exhibit “5”, Tab 3, pp 53 – 54. That note is of some interest to the process of interpreting the manner in which such notes are compiled because, by 14 November 2012, the plaintiff had already given a statement to the police on 23 October 2012 indicating his belief that he had been struck by a motor vehicle: Exhibit “F”, par 14. Plainly, he had not changed his mind on that topic by 14 November 2012, which was just 3 weeks later. This tends to suggest the cited note is based on a short summary of other notes, notwithstanding the introductory words: “He states”;

21. On 4 December 2012, the plaintiff underwent an orthopaedic review, at which time the mechanics of the accident were described as “pushbike vs car from behind”: Exhibit “5”, Tab 3, pp 55 – 56.

120. The significance of the foregoing matters to the analysis of the credibility of the plaintiff's testimony requires detailed consideration that will be addressed later in these reasons after the entire range of factual evidence and the opinion evidence has been reviewed. That factual evidence comprises the evidence of the plaintiff, the evidence of Dr Welgama and Dr Lando, the evidence of Mrs Cordin that related to post-accident events and investigations, material from Lismore Council, the police records and investigations, the evidence of Constable Antequil, and a consideration of documentary evidence, including the factual observations made by the respective accident reconstruction experts.

Evidence from hospital doctors

121. No evidence was called from any of the doctors who treated the plaintiff at Lismore Hospital before he was transferred by helicopter retrieval ambulance to Princess Alexandra Hospital in Brisbane.

122. The defendant tendered what appeared to be selected and incomplete portions of the Lismore Hospital records and argued that the records suggested that it was the plaintiff himself who had provided the short history of the details of the accident as was recorded at various places in the hospital records.

123. The defendant also relied upon the content of selected tendered portions of the Princess Alexandra Hospital records to suggest that it was the plaintiff who had provided the short history of the accident as was recorded in various places in those records.

124. Those matters must therefore form part of the evaluation concerning their interactions with the plaintiff.

125. Two of the medical practitioners who treated the plaintiff at the Princess Alexandra Hospital, Dr Welgama and Dr Lando, were called by the defendant to give evidence. For their convenience those witnesses gave their evidence by telephone.

Dr Welgama’s evidence

126. Dr Welgama’s evidence was called on the third day of the hearing. Dr Welgama explained aspects of the plaintiff's admission to the Princess Alexandra Hospital. When the plaintiff was admitted to that hospital, Dr Welgama was a senior registrar on duty in the Accident and Emergency Department where the plaintiff had been “transiently parked” on his arrival at the hospital: T184.10 – T184.21. That description suggests the plaintiff was first triaged. It would have been unlikely, given the head and spinal injuries, that he would have been “parked” in that manner if he had not first been triaged to ascertain his condition on arrival.

127. At the time he gave his evidence, Dr Welgama, who is now a specialist in Emergency Medicine, had only a feint and remote memory of the plaintiff's admission. In the interim period, he has seen several hundred patients in the course of his work as an emergency doctor. Understandably, he had no independent recollection of the plaintiff's admission, and he gave his evidence based upon a portion of the notes that had been sent to him by email to aid the process of him giving evidence: T184.44 – T186.24. Dr Welgama candidly stated that on the evening of the transfer, he had only seen the plaintiff for a very brief time in order to medically assess him: T191.45.

128. When Dr Welgama gave his evidence he had before him a copy of a handwritten Trauma Assessment sheet which he had completed on the night in question: Exhibit “5”, Tab 3, pp 29 – 30.

129. Dr Welgama’s evidence was given by telephone in unusual circumstances. It appeared his premises had been burgled several days earlier, and whilst he was giving his evidence by telephone, police had arrived at his home in order to interview him. Whilst he was giving his evidence he was in the process of searching his computer for documents relating to the present case: T186.44 – T187.28. It appears that copies of those documents had been emailed to him by the hospital for that purpose.

130. On the evening in question, Dr Welgama had been assigned to work in two resuscitation bays within the emergency department under the supervision of the consultant in charge, and in the course of those events, he said he had examined the plaintiff to obtain the plaintiff's [hi]story afresh. To do so, he undertook both a primary and a secondary survey of the plaintiff's condition so as to ensure nothing of relevance had been missed at Lismore Hospital: T188.15 – T188.39. By the time he undertook his examination, he would have had before him the history from Lismore of the plaintiff having come off his bicycle.

131. In the course of those events, Dr Welgama stated that whilst he was examining him, the plaintiff would have been kept in a restrained position due to his spinal injury, and in such situations only essential questions would have been asked of him out of respect for his situation, given that most questions had already been asked by others: T188.45 – T189.6.

132. Unfortunately, some of Dr Welgama’s evidence in chief that might have clarified such matters was interrupted by senior counsel for the defendant interposing another question before the answer that Dr Welgama was in the course of articulating, could be completed: T189.6.

133. The portion of evidence was as follows:

“Q. What did that prompt you to do, and ask?

A. This patient was actually -- this patient had definite spine cord injury so therefore such patients are being restrained to bed usually to minimise their mobility in order to prevent further damage so therefore they're not in the optimal position to freely give us a story as patients who are sitting down, so therefore usually ask them very essential questions not to trouble them because I may the 20th person asking the same story of a critically ill patient who was lying on a bed restrained and restricted with movement for a number of hours with significant pain, so therefore I think we do have some respect to their emotional status, so therefore we ask only essential questions, most of the other questions are being asked by the other teams and primary care givers when they come to the centres, however --

Q. Doctor, we're going to run out of time, what I want to ask you specifically if you go to the document headed details of incident, it starts of 54 year old male, is that right?

A. Yes.

Q. Who elicited this information from the patient?

A. Yes.

Q. Did you do that?

A. Yes.

Q. What question would you have asked him?

A. So the usually routinely we ask very open questions, what happened to you?

Q. What answer did you get to that question?

A. So he answered me "I fell off my mountain bike," that's why I have written mountain bike accident.

Q. Did at any stage did he mention that he'd been struck by a motor vehicle?

A. He hasn't provided that information to me, if he had provided that information I would have definitely documented that because that is really very important information.

Q. Over the page there's a primary survey, there is a summary of injuries, does that come before the primary survey or afterwards?

A. It would -- primary survey is ..(not transcribable).. so whether you're breathing on your own, and your lungs, whether your lungs getting enough air, plus either your heart is functioning okay and your blood pressure, yeah that is of primary survey, and whether they're having massively gushing bleeding wounds, so that is our primary survey, when we finish our primary survey in a couple of minutes and then they will do a thorough secondary survey, so that is called head to toe examination. In head to toe examination we give -- after excluding life threatening injuries we examine head to toe to find out all the other small and minor injuries, so that is my secondary survey documentation is other injuries I found. However in summary we summarise everything, primary survey, secondary survey findings.”

[T188.45 - T189.44]

[Emphasis added]

134. I consider that it was plain from Dr Welgama’s evidence, including the fact of his limited recollection of the plaintiff, that he was reconstructing events from his summary notes of his initial interaction with the plaintiff, and from his understanding of the usual practice he adopted in his work surveying patients in the emergency department: T189.20 – T191.26.

135. I infer that to be so by the reference in Dr Welgama’s evidence to the effect that he had a usual “practice” (T188.12), that he had a very limited recollection of the plaintiff (T184.44), that he used terms such as “usually routinely we ask very open questions” (T189.20), the fact that his notes were “in summary” form (T189.43), and because he qualified his answer to the question of whether the plaintiff appeared to understand his questions and gave appropriate answers by the expression “according to my documentation”: T190.34.

136. Dr Welgama was asked a specific question as to where he had obtained the history that in the accident the plaintiff had gone over the handlebars and had hit his head. In answer to that question, Dr Welgama stated that he had obtained that information from the plaintiff: T191.26.

137. Dr Welgama stated that when he wrote out his notes on the hospital trauma assessment form, he did not follow (by which I infer he meant use or refer to) the discharge summary that accompanied the plaintiff from Lismore Hospital: T192.13 – T192.33. In my view, there is doubt about the correctness of that account, given the content of a passage of his evidence to which I shall shortly refer: T193.27.

138. When Dr Welgama was cross-examined, he agreed that the Princess Alexandra Hospital trauma unit was very busy on the night of the plaintiff's admission, but he also stated that the system there was robust, and that he was able to cope with the work. He also stated that “usually”, at least an hour was spent with the patient in pursuing the routine required to complete the history and the examination of the patient: T192.40 – T193.4. It is not clear whether the practice that was “usually” followed was in fact followed on that occasion.

139. In the course of the cross-examination of Dr Welgama, a question was explored as to how the handover of the care of the plaintiff was achieved. That evidence, which was plainly based on usual practice rather than an actual recollection by Dr Welgama, was as follows:

“Q. Is it fair to say that the history that you obtained from the patient was obtained very quickly?

A. No, usually when you come to the trauma assessment we do spend at least one hour with these patients in order to complete our history and examination that is our routine practice.

Q. But before you started had you been given the notes from the paramedics?

A. Look usually these -- what happen, to give the picture what happened to these transfers the transfer information is very, very important and valuable information to us. They come with the accompanying doctor and so the paramedics and accompanying doctors and then once they come to the department we offload them from the ambulance stretcher to the emergency department bed and once we offload them one of the junior doctors will take care of the patient and the senior doctor will listen to the handover. When that handover, is a verbal handover, and the documentary handover, so verbal handover they tell the story very briefly what exactly happened and what history has been taken, what examination findings are there, and what investigations there has been done, and then what need to be done. So then they will hand over all the reports and the clinical notes to us, what has been going on with this patient from the beginning up to that transfer, transport point.

Q. Is it usual for you to read those documents before you do your own assessment of the patient?

A. It depends on how critically ill the patients are. If a patient is fairly stable we do read that, if the patient is unstable we see the patient straight away.

Q. I understand that and this particular patient, Michael Cordin, was he stable enough for you to read those documents?

A. The -- according to the information I have written over there he was stable, yes.

Q. Do you think it's probable that you had an opportunity to read the paramedics and the history from Lismore hospital?

A. I may have had an opportunity but I cannot recall that perfectly because it's nearly three years ago now.

Q. Was Mr Cordin medicated at the time you saw him, was he?

A. Yes he was, he was given medications.

Q. What for?

A. He was given medications for infections, he was given medication for tetanus, and he was given medication for pain.

Q. The history that you obtained was that relevant to finding out what happened to cause his injuries?

A. Yes.

Q. What's written there are details of incident, do you say apart from the suspected central cord syndrome which you got from the Lismore notes that he told you everything else there?

A. Yes, because usually whatever I have written there must -- came from the patient because otherwise I would have written "suspected" or "assume" or "presume" or I have used some wording in order to highlight that rather than I'm just making it out.

Q. Did he say to you that he went over the handlebars and landed onto his head and face with significant axial load?

A. No. So the axial load that is how I interpret the -- when a person went onto the -- went on handlebars and landed onto the head that is what happened, so that is my interpretation of that.

645. In my view, this would have required the driver of the vehicle following behind the plaintiff to refrain from bringing the vehicle into close proximity to the plaintiff for the purpose of overtaking him, and maintaining that road position, until it was safe to overtake.

646. This could have easily been achieved by either decelerating or braking. To do otherwise, invited the risk that even a slight change in steering direction of the slow moving bicycle in order to negotiate a path around a pothole risked a collision with a vehicle being driven in close proximity to and behind the bicycle, whether overtaking or not. In those circumstances, the duty of that driver was to keep the vehicle clear of the foreseeable path of the bicycle ahead.

647. In those circumstances, given my finding that there was a collision between the unknown vehicle and the plaintiff’s bicycle, for the reasons outlined above, I find that the collision occurred due to the negligence of the driver of that vehicle because of failure to keep a proper lookout, failure to provide due warning to the plaintiff, and failure to either stop, slow down, and maintain a safe distance behind the plaintiff.

Causation of harm

660. I am satisfied that but for that negligence, the plaintiff would not have sustained the injuries that he incurred in the accident. The facts of this case provide no basis for concluding that the scope of the defendant’s liability should not extend to the harm suffered by the plaintiff in the subject accident: s 5D(1)(a) and (b) of the Civil Liability Act 2002.

661. The plaintiff was an experienced rider, he knew the condition of the roadway, and he was riding with due care. Although there was evidence that in the past the plaintiff had fallen from his bicycle and had sustained minor injuries on several occasions in the past, this was not a sound basis for finding the plaintiff has not established causation of harm in this case.

Alleged contributory negligence

662. The question of whether there was contributory negligence on the part of the plaintiff in the circumstances of his injury involves a consideration of the standard of care expected of the plaintiff according to what he either knew or ought to have known of the circumstances at the time: s 5R(2) of the Civil Liability Act 2002. The defendant carries the burden of proving the allegation of contributory negligence.

663. In circumstances where the plaintiff was riding on a potholed road with which he was familiar, knowing he had to keep a proper lookout in order to negotiate a course around those potholes, absent any awareness or any warning of the approach of a motor vehicle from behind, there was no requirement on the plaintiff to look behind him, especially where to do so, risked taking his eyes off the road ahead, thereby risking the possibility of riding into a pothole.

664. In those circumstances, the plaintiff was entitled to expect that if there was a vehicle approaching from behind, the driver of that vehicle would see him, and would adjust the road position and speed of that vehicle in order to avoid a collision with him, or if that was not possible, to then warn the plaintiff of the approach of the vehicle in order to enable the plaintiff to take avoiding action for his own safety.

665. On the facts as I have found them, I consider that there is no proper scope for a finding of contributory negligence on the part of the plaintiff. I therefore reject that claimed defence.

Reasons for evidence ruling during trial

666. In the course of Mrs Cordin's evidence in chief given on the first day of the hearing, on behalf of the defendant, objection was taken to questions directed to Mrs Cordin relating to her report of the accident to the police following her return to Lismore from Brisbane. The basis of the objection was on the ground of relevance: T90.27. After argument, the question was allowed, and the answer was given: T91.23.

667. Following that ruling, on behalf of the defendant, Mr Poulos QC asked that reasons be given for that ruling. As the debate which led to that ruling emerged at 4.15pm on the first day of the hearing, in the context of a full circuit list, where there were time constraints in an extended sittings, it was indicated to the parties that reasons for that ruling would be provided at a later time: T91.28. Those reasons now follow.

668. The question objected to, and the answer at issue, related to Mrs Cordin's conversation with the police officer at Lismore Police Station. It primarily related to the matter of due inquiry and search. Although due inquiry and search for the identity of the claimed vehicle and unknown driver was an issue that had been conceded by the defendant, the context and content of those inquiries was nevertheless to a degree still relevant to the assessment of the credit of the plaintiff, which was the subject of attack by the defendant.

669. That view was pointed out to counsel in the course of discussion on the objection at the time it was raised: T90.33. In my view, that conclusion satisfied the threshold consideration of relevance which justified allowing the objected to line of questioning. Accordingly, no further reasons are required in relation to that ruling.

Reasons for expert evidence ruling during trial

670. At the close of the plaintiff’s case, the defendant sought to call its crash reconstruction expert, Mr Griffiths, to give oral evidence: T142.45.

671. That course was initially objected to on behalf of the plaintiff on the basis that, as Mr Griffiths had not been required for cross-examination on the content of his two served reports, and unless otherwise ordered, the assumed position was that his evidence in chief should be taken to be as set out in those reports: UCPR r 31.21.

672. The plaintiff argued that as Mr Griffiths was not required for cross-examination, there would be no purpose in calling oral evidence from him other than to seek an “otherwise” order.

673. A question then arose as to whether Mr Griffiths should be called to give evidence in circumstances other than those primarily contemplated by that rule. That matter was the subject of submissions and discussion which remained part-heard and therefore un-concluded overnight on the 2nd day of the trial: T142.1 – T145.30. In the course of discussion, it was again suggested that the experts meet on the matter at issue to prepare a short report: T144.14. The objective of that suggestion was not achieved.

674. On the following morning, in the course of further argument on the issue (T146 – T161), it transpired that in addition to the two reports by Mr Griffiths which had been served, the legal representatives of the defendant had asked him to prepare a further document overnight, which was handwritten by him, and which was said to form the basis of the oral evidence that the defendant was seeking to adduce from him at that time.

675. That document was described as comprising “four pages of diagrams and tyres (sic) and mathematical calculations, and formulas”, and as such, it was clearly an expansion of the earlier written opinions within the served reports of Mr Griffiths: T153.10: MFI “10”.

676. In order to tender that document, the defendant must show exceptional circumstances for the granting of leave to do so as the report had not been served 28 days before the hearing: UCPR r 31.28(1)(c) and 31.28(4).

677. On behalf of the plaintiff, that document was described as requiring translation into the form of a written report in the commonly understood sense, so that at the request of the plaintiff, Dr Carnavas could then give it methodical consideration. This would in turn then also require some considerable adjournment time beyond the scope of the extended sittings at Lismore, so as to enable counsel for the plaintiff to properly deal with that further expert opinion material: T156.15 – T156.38.

678. Accordingly, the plaintiff maintained the objection, and submitted that the course proposed by the defendant would cause unreasonable delay and would offend the well understood requirements of justice, quickness and cheapness, embodied within s 56 of the Civil Procedure Act 2005.

679. In response to that submission, the defendant has not persuasively pointed to any matter that would justify the exercise of the discretion as sought for the making of an order for a course other than the one that is primarily contemplated by UCPR r 31.21, which provides that unless otherwise ordered, the evidence in chief of an expert should be taken to be as set out in the reports of the expert: T156.40 – T161.50.

680. In support of the defendant’s position, it was argued that the need for Mr Griffiths to be called to give oral evidence arose from an aspect of the oral evidence given by Dr Carnavas in the form of an answer he gave to a question asked of him in cross-examination to the effect that it was “not possible” for the axle of the rear wheel of the plaintiff’s bicycle to be displaced in the manner he had observed, on the assumption that the plaintiff’s bicycle wheel had gone down into a pothole, and had then bounced back against the weight of the rider in the dynamics of the accident as argued by the defendant.

681. Dr Carnavas had stated that in those circumstances, the axle would not have become displaced within the frame of the bicycle due to reaction with [sic for to] the weight of the rider. He added “that’s not possible” and repeated that answer several times in answer to questions asked of him in cross-examination: T136.4 – T136.22.

682. The defendant submitted that this was something Dr Carnavas had added to his report, and claimed that it was something which he had not previously said: T147.5.

683. I do not accept that submission because the subject matter at issue was clearly identified in the first report of Dr Carnavas, which was dated 2 April 2014, and which had been served on the defendant on 12 February 2015: Exhibit “A”, Tab 1, section 4, par 4.

684. In that report Dr Carnavas stated:

“… If the Bicycle was jumped or “bunny-hopped” over a pothole so that the front wheel cleared it but the back wheel made impact, then this could account for the buckle in the rear wheel. However, it would not account for the downward displacement of the rear axle on the right hand side because such an impact would force the wheel upwards;”

[Emphasis added]

685. In my view, the statement by Dr Carnavas to the effect that the postulated mechanism was in substance “impossible” was no different to the emphasised aspect of Dr Carnavas’ opinion cited in the preceding paragraph.

686. In my view, the cited oral evidence of Dr Carnavas given in answer to questions posed in cross-examination had not introduced any new matter not covered by his reports. He simply reiterated the same concept to which he had earlier referred, but using slightly different words. For those reasons, I do not accept the defendant’s argument that a new matter had been introduced which the defendant needed its expert to address.

687. In his report dated 2 March 2015, Mr Griffiths took the opportunity of commenting upon selected portions of the report of Dr Carnavas dated 2 April 2014. In that report, Mr Griffiths stated, without reasons, that one of Dr Carnavas’ arguments was “contrary to the laws of physics”.

688. In particular, in commenting on section 4 of that report, Mr Griffiths specifically focussed upon the scenario raised by Dr Carnavas concerning the rear wheel of the bicycle passing over a pothole. In respect of that scenario, he commented: “This would make the rear wheel more prone to damage when passing over a pothole”: Exhibit “5”, Tab 5, p 124.

689. In providing that evidence, for whatever reason, Mr Griffiths’ report did not deal with the axle displacement issue or argument raised by Dr Carnavas in his report at Exhibit “A”, Tab 1, p 6, other than by identifying the fact that he had not made the same observation (Exhibit “5”, Tab 6, pp 76 and 102) and by the fact that he dismissed the argument without evidence, in a speculative manner, by reference to assumed post-accident handling of the bicycle: Exhibit “5”, Tab 6, p 124 line 25. In my view, the defendant appeared to be seeking to overcome the omission by calling Mr Griffiths to give oral evidence on a point that had not been covered in his report.

690. In my view, the true position is that no new matter was raised by the oral evidence of Dr Carnavas. The cross-examiner had sought to test that portion of Dr Carnavas’ already flagged opinion without having evidence to contradict or rebut that opinion. It seems that what the defendant was seeking to do was to adduce oral evidence from Mr Griffiths on this point where his existing reports were silent on the topic.

691. In my view, the plaintiff’s objection to that course was well founded as the defendant was seeking to change the parameters of its expert evidence at a point where the trial was almost concluded. If that course had been allowed, this would have been a source of real and not just presumptive prejudice to the plaintiff. I considered that this should not be permitted, for the reasons that follow.

692. The issue arose in the course of an already extended week of circuit sittings, with competing demands on available court time, where the objective was to try to deal with a number of waiting cases that would be otherwise not reached in the sittings. The parties were therefore advised, having regard to those time management constraints, that more expansive reasons for my decision for declining to grant the defendant leave for Mr Griffiths to be called, would be incorporated into these reasons for judgment: T217.3 –T217.4

693. At the time the issue arose, I concluded that the application for leave should be refused for a number of reasons. First, there was no justification for leave to be granted, primarily because the claimed contentious topic of evidence given by Dr Carnavas had already been flagged in the first report of Dr Carnavas as explained above. Secondly, it was apparent that the defendant was seeking to take a different tactical course to the one it had previously decided to follow, which if allowed, would create an unjust prejudice to the plaintiff, as explained below.

694. The broad context in which the matter at issue here arose, was that this case was not reached at the previous sittings of the court on circuit in Lismore, and the commencement of the case had been delayed in the current sittings because of the need to first deal with a number of childcare appeals which had taken priority in the running list. It was for those reasons that the sittings had been extended by one week to deal with cases that would otherwise be not reached, including some for a second time.

695. In the lead up to the listing of the present proceedings for hearing, both parties had approached this case by serving expert evidence, and by making forensic decisions about which, if any, of the opinions of the respective experts would be the subject of challenge by cross-examination.

696. The defendant chose to challenge the opinions of Dr Carnavas, first by introducing evidence in the form of opposing reports by Mr Griffiths, and secondly, by seeking to cross-examine Dr Carnavas on specific matters in his expressed opinions which the defendant wished to contest. That was a course which was unquestionably open to the defendant.

697. The plaintiff chose a tactical course whereby Mr Griffiths’ opinions would only be attacked through arguments made in submissions rather than by cross-examination. That approach seemed to be based on attacking the relevance and applicability of the assumptions made by Mr Griffiths in his reports. That too was a course which was unquestionably open to the plaintiff.

698. In that scenario, in the ordinary course of events, at the conclusion of evidence and argument, the court would have been left to engage with the competing expert opinions and the factual basis of those opinions, and to analyse them for cogency, and for their persuasive appeal. That too was an unremarkable feature of litigation of this kind, except that in preparing and presenting the case, the overriding obligation of the parties was to assist the court to achieve the facilitation of the just, quick and cheap resolution of matters in dispute: s 56 of the Civil Procedure Act 2005.

699. In the spirit of those obligations, on the afternoon of Tuesday 27 October 2015, before the hearing commenced, the parties were invited to consider following a modified application of UCPR r 31.24(1)(c) and related provisions by arranging for the opposing experts to meet in conference in order to seek to narrow, if not resolve, the extent of the expert matters in dispute between the parties before their evidence was given. The aim of that suggestion was for a short joint report or memorandum to be prepared, and if required, the respective experts could then be sworn to give their evidence at the same time, as contemplated by UCPR r 31.35(c).

700. That suggested course was not followed. That was a decision which was open for the defendant to take because at that time, the defendant did not intend to call Mr Griffiths to give oral evidence, and the plaintiff did not require Mr Griffiths to be called for cross-examination on his reports: T1.45.

701. When the subsequent application to call Mr Griffiths was pursued on the 3rd day of the trial, on 5 November 2015, it was plain that if Mr Griffiths was to be called, a further report containing his proposed evidence was a necessary pre-condition. That much was recognised and accepted by the defendant: MFI “10”.

702. It was also plain that if a further report along those lines was to be relied upon by the defendant, in those circumstances, it was only fair that there be no irremediable prejudice to the plaintiff, such as in the nature of an ambush of the kind that is discouraged in modern litigation: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, at [30] – [31], [45] – [46].

703. In that regard, it must be recognised that prejudice is not always remedied by an order for costs where an irreparable element of prejudice arises in the form of delaying the proceedings: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [4] – [5]. It seemed to me that kind of prejudice would have arisen if the defendant was permitted to call Mr Griffiths in the described circumstances.

704. In coming to that view, it is recognised that although case management principles are important, they do not necessarily or always require slavish adherence, but rather, the interests of justice between the parties should be the central focus.

705. In that regard, the stresses and uncertainties of litigation, including the potentially ruinous cost of litigation, including litigation that would be prolonged where an indulgence is sought, also needs to be balanced in the consideration: Richards v Cornford (No 3) [2010] NSWCA 134, at [42]. If granted, the application would have certainly prolonged the litigation and extenuated the factors described above.

706. Leave is required before a party may rely on a report not served in accordance with UCPR r 31.28(1)(c) and such leave is not to be given unless exceptional circumstances are shown that warrant the granting of leave: UCPR r 31.28(4)(a).

707. The discretion on whether or not to dispense with a procedural requirement of the rules involves a decision, order or direction for the management of the proceedings within the meaning of s 58(1) of the Civil Procedure Act 2005. That provision requires that any such decision must be exercised by the court seeking to act in accordance with the dictates of justice, which in turn requires that justice be afforded to both parties, and not only to the party seeking the benefit of the order sought.

708. The exercise of discretion is subject to mandatory considerations: s 56, s 57 and s 58(2) of the Civil Procedure Act 2005.

709. The granting of an order as sought by the defendant must also be balanced against the potential for prejudice to arise to the plaintiff’s position. That balancing exercise requires that account be taken of the considerations identified in the provisions of s 58(2) of the Civil Procedure Act 2005.

685. I now turn to consider those factors as to relevance to this case.

686. The degree of difficulty and complexity of the issues for the experts to consider arises in the context where, in this case, the expert opinions are in a state of complete disagreement: Exhibit “A”, Tab 2, p 15, par 4.1. If, as was sought by the defendant, further oral evidence was to be called from Mr Griffiths on the topic in question, a much wider and extended evidentiary terrain would need to be traversed, whereas beforehand, the defendant had elected not to elicit more detailed expert evidence on the point. In that context, a grant of leave sought would add substantially to the length of the time required to complete the hearing and the timing of the completion of the hearing, as well as the costs of the hearing: s 56(1); s 57(1); s 58(2)(b)(i) & (vii) of the Civil Procedure Act 2005.

687. That additional layer of anticipated extra costs and the associated delay involved if the defendant’s application was granted seems disproportionate to the factual issues to be decided where the matter sought to be addressed by the defendant was not new matter introduced by the plaintiff’s expert, as was claimed: s 58(2)(b)(vi) and (vii) of the Civil Procedure Act 2005.

688. The problem arises in a context where the parties have already been delayed by a not reached marking at earlier sittings of the court on circuit, and in circumstances where they were otherwise prepared to go to trial on the basis of existing reports, and the anticipated cross-examination of Dr Carnavas: s 58(2)(b)(ii) and (iii) of the Civil Procedure Act 2005.

689. The problem now confronting the defendant would most likely have arisen at a much earlier stage if the experts had conferred in order to seek to identify areas of agreement and disagreement. Neither party sought to either raise or seek to convene a meeting of experts, where such a meeting would have clearly been within the spirit of s 56 and s 57: s 58(2)(b)(iv) and (v) of the Civil Procedure Act 2005. The parties could have achieved this without an order of the court.

690. The consequence of allowing a further report from Mr Griffiths, which had not yet been finalised into a suitable form for service, at a point near the end of the trial, would have inevitably delayed the conclusion of the case by some months in order that the plaintiff’s representatives be afforded a just opportunity to deal with a further report from Mr Griffiths.

691. Such delay would have arisen because the court’s roster arrangements would have required a resumed hearing in Sydney. The court’s existing timetable for listing arrangements could only accommodate a not so short part-heard case, until well into 2016. This is because other cases have already been listed for hearing in Sydney for that time range, and would need to be displaced for this case to continue in Sydney, thus inconveniencing and causing difficulty to other litigants: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [93]; [113]; Kelly v Jowett [2009] NSWCA, at [58]; Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64, at [39].

692. That outcome is to be avoided if reasonably possible, particularly as the matter had already not been reached on circuit. Furthermore, the cost to the plaintiff of the delay, in terms of the continued stress of unresolved litigation, is also a considerable factor to be taken into account. The extra costs to be borne by the plaintiff, would arise from the need for further advice to be obtained from solicitors, counsel, and the expert witnesses, and the cost of an additional hearing fixture of unknown duration, involving the fees of expert witnesses, solicitor’s costs and the fees of junior and senior counsel. My impression is this would amount to more than just a few thousand dollars. In my view, in the circumstances this would appear to be unduly burdensome, and would serve to add to the injustice of the circumstances: s 58(2)(b)(vi) of the Civil Procedure Act 2005.

693. I consider that an order for costs in favour of the plaintiff on that issue would not outweigh that burden because whilst it might provide indemnity for the extra exposure, it would not overcome the prejudice of delay caused by prolongation of the litigation.

694. If the defendant’s intended course was allowed, the plaintiff’s claim of prejudice could not be ignored. The change of course suggested by the defendant would have necessitated an adjournment for the purpose of enabling the handwritten draft document prepared by Mr Griffiths (MFI “10”) to be finalised and translated into a reasoned report, so that the plaintiff’s legal representatives could fairly consider such a report, and then obtain expert advice upon it, and then most probably, obtain a further report from Dr Carnavas, who would then have to be recalled to give further evidence.

695. Such further evidence would then most likely, either by consent or by orders pursuant to UCPR r 31.20, require a meeting or conference of experts: UCPR r 31.20(2)(h) and UCPR r 31.24 – r 31.26. This would most probably be required in order to address expert questions yet to be fully identified, followed by the preparation of a joint report or memorandum setting out matters agreed or not agreed by the experts, then followed by the experts giving their evidence concurrently at a resumed hearing, as envisaged by UCPR r 31.35(c), and the related provisions.

696. All of those events, which would obviously be accompanied not only by significant extra expense, but also a considerable delay, additional uncertainty and litigation stress, if the court exercised a discretion in favour of one party to the disadvantage of the other, to permit reliance on a further report from Mr Griffiths that was not compliant with the requirement that such a report be served 28 days before the hearing: UCPR r 31.28(1)(c).

697. In my view, the plaintiff has not acted unreasonably in withholding consent to that course because of the obvious prejudice and burden that would result from the course proposed by the defendant where no exceptional circumstances exist for a different order to be made.

698. I therefore considered that in the described circumstances, the dictates of justice required that the defendant’s application to rely on a yet to be finalised report of Mr Griffiths, and related oral evidence, should be refused.

Disposition

724. The plaintiff has succeeded in establishing his entitlement to a verdict and judgment in his favour, in the amount of $350,000, without discount for alleged contributory negligence.

Costs

725. As the plaintiff has succeeded in having all the issues in dispute in these proceedings determined in his favour, he is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis, unless a party can show an entitlement to some other order. At the time my findings were announced to the parties on 26 February 2016, the plaintiff established the basis for an indemnity costs order.

Orders

726. I make the following orders:

1. Verdict for the plaintiff on the issue of liability without discount for alleged contributory negligence;

2. Judgment for the plaintiff in the agreed amount of $350,000;

3. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis until 10 July 2015, and on an indemnity basis from 11 July 2015;

4. The exhibits may be returned;

5. Liberty to apply on 7 days notice for further or other orders if required.

Appendix

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Amendments

29 February 2016 - 29 February 2016 - Coversheet, [1], [10], [99], [143], [192], [501], [557], [562], [716], [725], [726]

Decision last updated: 29 February 2016