Donaldson v Nurse
[2025] WADC 73
•22 OCTOBER 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DONALDSON -v- NURSE [2025] WADC 73
CORAM: SHEPHERD DCJ
HEARD: 1 & 3 OCTOBER 2024
DELIVERED : 22 OCTOBER 2025
FILE NO/S: CIV 385 of 2022
BETWEEN: SHAUN PETER DONALDSON
Plaintiff
AND
MICHAEL JOHN NURSE
Defendant
FILE NO/S: CIV 1904 of 2022
BETWEEN: MICHAEL JOHN NURSE
Plaintiff
AND
SHAUN PETER DONALDSON
Defendant
Catchwords:
Negligence - Personal injuries - Determination of liability - Motorcycle collision - Evidence - Expert evidence - Accident reconstruction - Contributory negligence - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA)
Evidence Act 1906 (WA)
Result:
Judgment for the plaintiff (CIV 385 of 2022)
Plaintiff's claim dismissed (CIV 1904 of 2022)
Representation:
CIV 385 of 2022
Counsel:
| Plaintiff | : | Mr N F Morrissey |
| Defendant | : | Mr D R Clyne |
Solicitors:
| Plaintiff | : | Percy Kakulas Gleeson |
| Defendant | : | Simon Walters |
CIV 1904 of 2022
Counsel:
| Plaintiff | : | Mr D R Clyne |
| Defendant | : | Mr N F Morrissey |
Solicitors:
| Plaintiff | : | Simon Walters |
| Defendant | : | Percy Kakulas Gleeson |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Apostolic Church Australia Limited v Dixon [2018] WASCA 146
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Axon v Axon (1937) 59 CLR 395
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Brown v New South Wales Trustee and Guardian [2012] NSWCA 431
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Commissioner for Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563
Cox v Fellows [2013] NSWCA 206
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78
Erickson v Bagley [2015] VSCA 220
Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241
Hunter and New England Local Health District v McKenna [2014] HCA 44; (2014) 253 CLR 270
Kazal v Thunder Studios Inc (California) [2023] FCAFC 174
King v Nash [2022] WASC 102
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369
Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205
NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Perisher Blue Pty Ltd v Nair‑Smith (2015) 90 NSWLR 1
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Shaw v Thomas [2010] NSWCA 169
State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Stenning v Sanig [2015] NSWCA 214
Summit Rural (WA) Pty Ltd v Lenane Holdings Pty Ltd [2024] WASCA 122
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; (2022) 273 CLR 454
Town of Port Hedland v Reece William Hodder by Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Water Board v Moustakas [1988] HCA 12; (1998) 180 CLR 491
Waverley Council v Ferreria [2005] NSWCA 418
Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63
Wyong Shire Council v Shirt (1980) 146 CLR 40
Table of Contents
PART 1:... INTRODUCTION
PART 2:... OVERVIEW OF THE CRASH SCENE
2.1.... Overview of the crash scene
2.2.... The location of the alleged negligent acts of driving
PART 3:... THE PLEADINGS
3.1.... Mr Donaldson's pleaded position CIV 385 of 2022
3.2.... Mr Nurse's pleaded position
3.2.1 Mr Nurse's defence to CIV 385 of 2022
3.2.2 Mr Nurse's claim against Mr Donaldson CIV 1904 of 2022
PART 4:... MR DONALDSON'S EVIDENCE
4.1.... Evidence-in-chief
4.1.1 Meeting Mr Nurse
4.1.2 The lead up to the collision and the collision
4.1.3 Mr Donaldson's interactions with Mr Nurse after the accident
4.2.... Cross-examination
4.2.1 Meeting Mr Nurse
4.2.2 Leaving the car park and the lead up to the collision
4.2.3 The collision
4.2.4 Other matters going to credit
4.2.5 Where there was no evidence
PART 5:... MR NURSE'S EVIDENCE
5.1.... Evidence-in-chief
5.1.1 Meeting Mr Donaldson
5.1.2 The lead up to the collision
5.2.... Cross-examination
5.2.1 Matters going to credit
5.2.2 Illicit drugs
5.2.3 What Mr Nurse told medical staff about illicit drugs - the hospital records
5.2.4 Mr Nurse's memory of the accident
5.2.5 What Mr Nurse told Dr Goodheart on 14 December 2021
5.2.6 What Mr Nurse told Dr De Felice on 9 May 2022
5.2.7 The lead up to the collision
5.2.8 Where there was no evidence
PART 6:... MY ASSESSMENT OF THE WITNESSES
6.1.... General
6.2.... Credibility findings Mr Donaldson
6.3.... Credibility findings Mr Nurse
PART 7:... FINDINGS OF FACT MR DONALDSON'S EVIDENCE
7.1.... The meeting at the Dianella Plaza car park
7.2.... The arrangements upon leaving Dianella Plaza car park
7.3.... The lead-up to the collision
7.4.... The collision between the two motorcycles
PART 8:... FINDINGS OF FACT FROM MR NURSE'S EVIDENCE
8.1.... The events prior to the accident
8.2.... Mr Nurse's account of the accident
PART 9:... THE EXPERT EVIDENCE OF PROFESSOR ANDERSON
9.1.... Professor Anderson's expertise
9.2.... Credibility findings Professor Anderson
9.3.... Summary of Professor Anderson's evidence
9.4.... The location the motorcycles at the point of collision
9.5.... The physical evidence from the crash scene
9.5.1 Final positions
9.5.2 The damage to the motorcycles and the barrier
9.6.... The trajectory between the collision and the impact with the barrier
9.7.... The points of impact of each motorcycle with the barrier
9.8.... Professor Anderson's evidence regarding speed
9.8.1 The maximum cornering speed
9.8.2 The speed of the motorcycles on the approach to the bend
9.8.3 The speed of the Honda (Mr Nurse)
9.8.4 The speed of the Yamaha (Mr Donaldson)
9.9.... The mechanics of the collision
PART 10:. ANALYSIS REGARDING SPEED
10.1.. The speed limit
10.2.. The pleaded position and the way the trial was conducted on speed
10.3.. The maximum cornering speed
10.4.. The likely speed of the Parties
10.5.. Other materials referencing speed - Mr Donaldson
10.6.. Other evidence referencing speed - Mr Nurse
10.7.. Other physical evidence suggestive of speed
10.8.. What was a reasonable speed for a rider to have navigated the approach to the bend?
10.9.. Conclusions on speed
PART 11:. ANALYSIS ON THE MECHANICS OF THE CRASH
11.1.. Mr Nurse's argument that Hypothesis One is excluded by the physical evidence
11.2.. The relevant findings of fact
11.3.. Analysis
PART 12:. ILLICIT DRUGS
12.1.. The factual position
12.2.. The pleaded position of the Parties
PART 13:. SUMMARY OF THE KEY FINDINGS OF FACT
13.1.. Summary of key findings of fact
13.2.. Summary of key findings of fact from Professor Anderson's evidence
13.2.1 General
13.2.2 The Honda
13.2.3 The Yamaha
13.2.4 Speed
13.2.5 The mechanics of the collision
PART 14:. MR DONALDSON'S CLAIM - CIV 385 OF 2022 - ANALYSIS OF THE PLEADINGS
14.1.. Particulars (i), (ii) and (iii): The overtaking
14.2.. Particular (iv): Changing of lanes when unsafe
14.3.. Particular (v): 'Intoxication' and Particular (vi): 'under the influence'
14.4.. Particular (vii): Speed
14.5.. Particular (viii): Failing to keep a proper lookout and Particular (ix): Failing to pay due care and attention
14.6.. Particulars (x) and (xi): Failing to take positive action to avoid the accident
PART 15:. DETERMINATION OF LIABILITY CIV 385 OF 2022
15.1.. Principles of law - Duty of care and breach
15.2.. Analysis - Mr Donaldson's action against Mr Nurse CIV 385 of 2022
15.3.. Principles of law - Contributory negligence
15.4.. Analysis
15.4.1 The illicit drugs
15.4.2 Excessive speed
15.4.3 Mr Donaldson's manner of driving on the approach to the bend
15.5.. Principles of Law - Causation
15.6.. Analysis
15.7.. Conclusion CIV 385 of 2022
PART 16:. MR NURSE'S CLAIM - CIV 1904 OF 2022 - ANALYSIS OF THE PLEADINGS
16.1.. Particular (a) Failed to adequately or at all keep any or any proper lookout
16.2.. Particular (b) Failed to ride with any or any proper control in that he permitted his front wheel to impact the rear wheel of (Mr Nurse's) motorcycle
16.3.. Particular (c) Rode at a speed which was excessive in the circumstances
16.4.. Particular (d) Failed to adequately or at all brake in time to avoid the collision
16.5.. Particular (e) Failed to adequately or at all steer to control the vehicle so as to avoid the collision
PART 17:. DETERMINATION OF LIABILITY CIV 1904 OF 2022
PART 18:. CONCLUSIONS AND FINAL ORDERS
ANNEXURE 1
ANNEXURE 2
ANNEXURE 3
ANNEXURE 4
ANNEXURE 5
ANNEXURE 6
ANNEXURE 7
ANNEXURE 8
ANNEXURE 9
ANNEXURE 10
SHEPHERD DCJ:
PART 1: INTRODUCTION
In the early hours of 12 September 2020 two men of dubious moral character met under cover of darkness at the Dianella Plaza car park. That meeting had everything to do with illicit drugs and nothing to do with motorcycles.
Having conducted their business, both men then left the Dianella Plaza car park on their respective motorcycles and headed southbound along Alexander Drive towards the freeway. At a point north of where Alexander Drive intersects with Thongsbridge Street, Alexander Drive curves into a right‑hand bend, demarcated by a guardrail and a black and white, reflective arrow sign.
On the approach to the bend the two motorcycles collided, became destabilised, capsized and crashed into the guardrail. Both men were thrown from their motorcycles.
Mr Donaldson was thrown over the guardrail with catastrophic consequences. He is now a paraplegic.
Mr Nurse was thrown from his motorcycle landing on the road in the left lane of Alexander Drive. He was also injured, although to a lesser extent than Mr Donaldson.
Each man has brought a separate action against the other in negligence.[1] Each man asserts that the other rode his motorcycle in a manner that was negligent. Each man pleads contributory negligence in respect of the other. Each man asserts that the negligence of the other caused the injuries to the other.
[1] Donaldson v Nurse CIV 385 of 2022; Nurse v Donaldson CIV 1904 of 2022.
The matter was before me for determination of liability only.
Both Mr Donaldson and Mr Nurse gave evidence at trial. The evidence of each served as his evidence in support of his claim against the other, and as evidence of his defence in the claim against him.
Mr Donaldson's position in short, was that he was travelling in the left lane driving south along Alexander Drive when, on the approach to the bend and without warning, Mr Nurse overtook him from the right‑hand side, cutting directly across Mr Donaldson's line of travel at such proximity that the two motorcycles collided.
Mr Donaldson's position at trial was that as a consequence of Mr Nurse's manner of driving, the right‑hand side of his front wheel impacted with the left‑hand side of Mr Nurse's rear wheel, causing Mr Donaldson to lose control of his motorcycle, crashing into the barrier ('Hypothesis One', 'Mr Donaldson's position').
Mr Nurse's position at trial was that he was travelling southbound in the left lane of Alexander Drive in front of Mr Donaldson when Mr Donaldson suddenly, and without warning, struck the rear wheel of Mr Nurse's motorcycle from Mr Nurse's right-hand side (and/or from behind), causing Mr Nurse to lose control of his motorcycle, crashing into the barrier front‑on ('Hypothesis Two', 'Mr Nurse's position').
Mr Donaldson called evidence from Professor Anderson, an expert in accident reconstruction. Professor Anderson's qualifications, expertise and the methodology he employed in reconstructing the accident were not challenged at trial. His opinions and conclusions were largely unchallenged at trial and the report he prepared on instructions from Mr Donaldson's solicitors was tendered by consent into evidence.[2]
[2] Exhibit 4.
The narrow area of challenge to Professor Anderson's evidence related to the mechanics of the interaction between Mr Donaldson's motorcycle and Mr Nurse's motorcycle prior to each colliding with the barrier. Specifically, whether Hypothesis One, or Mr Donaldson's account of the collision between the two motorcycles, is inconsistent with the physical damage sustained by Mr Nurse's Honda following its impact with the barrier and is otherwise inconsistent with other aspects of the crash scene.
I return to this aspect of Professor Anderson's evidence, and his evidence generally, later in these reasons.[3]
[3] See Parts 9 and 11.
There were many similarities between Mr Donaldson and Mr Nurse. Neither man came before the court as a person of prior good character. Both men have extensive criminal histories, at the time of the accident each man was riding his motorcycle without a valid driver's licence, each man tested positive after the accident to methylamphetamine and amphetamine in differing amounts, and each man subsequently pleaded guilty to driving at the time of the accident with a prescribed illicit substance.
It is trite to say that both men have credibility issues.
Whilst I do not accept the entirety of the evidence that either man gave, in respect of Mr Donaldson, I am able to accept parts of his evidence. The same cannot be said for Mr Nurse. With one very narrow exception, I conclude that false in one thing does mean false in everything.
For the reasons that follow, I find for Mr Donaldson and I dismiss Mr Nurse's claim.
The matter can now be programmed for an assessment of damages.
PART 2: OVERVIEW OF THE CRASH SCENE
2.1 Overview of the crash scene
Alexander Drive is a dual carriageway heading south. The crash location was on a bend in the road ('the bend') along Alexander Drive northwards of, and proximate to, where Alexander Drive intersects with Thongsbridge Street ('the Thongsbridge Street intersection').
Prior to the bend, Alexander Drive is a straight road of nearly 500 m. The bend is located approximately 340 m south‑west of the intersection with Bradford Street.[4]
[4] Exhibit 4, par 6.1.
The stretch of road heading southbound along Alexander Drive on the approach to the bend is clearly visible. Whilst there are some trees on the median strip between the southbound and northbound lanes, they do not obstruct the view of the road heading south.
Similarly, whilst the aerial views[5] depict some trees further south along Alexander Drive, there is nothing from the photographs of the crash scene to suggest that those trees (or anything) obstructed the view that a road user would have on the approach to the bend. That observation is consistent with the evidence led at trial.
[5] Annexure 1, Exhibit 10.1 and Exhibit 10.2
The two photographs below[6] depict the dual carriageway of Alexander Drive looking southbound towards the Thongsbridge Street intersection.
[6] Photograph 1, Book of documents, page 74; Photograph 2, Book of documents, page 202; Annexure 2.
Photograph 1
Photograph 2
What is plain from viewing the photographs of the crash scene is that immediately to the south side of Thongsbridge Street, that part of the bend in the road is demarcated by a guardrail and black and white, reflective arrow sign.
Heading south along Alexander Drive, the guardrail and the arrow sign can readily be seen, even from some distance away from the commencement of the bend. None of that is controversial.
Whilst the intersection, the arrow sign and the guardrail clearly demarcate a certain part of the bend, what is clear from the scene and aerial photographs[7] is that Alexander Drive commences to bend to the right prior to, or north of, the Thongsbridge Street intersection.
[7] See also Photograph 3, Annexure 3, Exhibit 4, Figure 12.
From a plain viewing of the photographs, I would estimate the distance at which Alexander Drive commences to bend to the right as being approximately 30 m - 50 m to the north of the Thongsbridge Street intersection. This is an approximate estimate only using the scale provided on photographs tendered at trial,[8] and commonsense. Nothing turns on the precise measurement.
2.2 The location of the alleged negligent acts of driving
[8] The scale provided on Photograph 3, Annexure 3, Exhibit 4, Figure 12.
As to where on Alexander Drive each Party alleges the other rode his motorcycle negligently, I refer briefly to the pleadings. Mr Donaldson's pleaded position is that Mr Nurse's act (or acts) of negligent driving occurred 'as Mr Donaldson navigated the right bend adjacent to the intersection of Alexander Drive and Thongsbridge Street'.[9]
[9] Mr Donaldson's Statement of Claim CIV 385 of 2022 filed 29 April 2024, par 2(b).
Mr Nurse's pleaded position is that Mr Nurse was 'involved in a collision at or around the intersection of Alexander Drive and Thongsbridge Street'.[10]
[10] Mr Nurse's Statement of Claim CIV 1904 of 2022 filed 2 June 2022, par 2.
In the context of two motorcycles that were then travelling, it is understandable that the precise location of where the negligent acts of driving are said to have occurred is referred to generally by reference to the intersection and/or the bend.
It was common ground at trial that at a point along Alexander Drive north of the Thongsbridge Street intersection there was an interaction between the front wheel of Mr Donaldson's motorcycle and the rear wheel of Mr Nurse's motorcycle. For ease of reference I will refer to point at which the motorcycles collided as 'the collision'.
It was not contentious at trial that the motorcycles destabilised upon, or immediately following, the collision. Both men then lost control of their motorcycles, they capsized and then slid into the barrier, impacting with the guardrail. I will refer to the point at which each motorcycle subsequently impacted with the guardrail as 'the impact with the guardrail' or 'the impact with the barrier'.
It is necessary to delineate the two physical acts in order to understand the sequence of events and to understand the expert evidence.
The way the trial was conducted by both Parties was that the manner of negligent driving alleged by each man against the other occurred immediately prior to the collision.
The stretch of road where the acts of negligent driving are alleged to have occurred can therefore be narrowed down by reference to the likely point of the collision.
That is best illustrated by Photograph 3[11] which is an aerial view of Alexander Drive. It is marked by two yellow lines which intersect.[12] The yellow line closest to the guardrail indicates the straight line towards the point of impact.[13] The northern‑most yellow line indicates the tangent to the beginning of the curve.[14] Photograph 3 is also marked by a 10‑m black line which intersects with the tangent to the beginning of the curve.
[11] Photograph 3, Annexure 3, Exhibit 4, Figure 12, par 10.3, ts 62.
[12] Marked D on Photograph 3, Annexure 3.
[13] See B on Annotated Photograph 3, Annexure 3.
[14] See C on Annotated Photograph 3, Annexure 3.
The area of road where the two motorcycles collided was somewhere along the 10‑m stretch of road as depicted by the black line. Specifically, where the black and yellow lines intersect, possibly slightly before (or to the north, or the right, looking at Photograph 3).[15]
Photograph 3
[15] See A on Annotated Photograph 3, Annexure 3; ts 62.
It was not contentious at trial that the two motorcycles had gone at least part of the way around the bend in the road at the point at which they had capsized and were sliding toward the barrier.[16]
[16] ts 62.
Photograph 4[17] is an aerial view of the stretch of road on the approach to the bend. Photograph 4 marked with the red arrows shows the paths of the motorcycles heading south to the points of impact with the barrier marked X (from the right to the left of the photograph).
[17] Photograph 4, Annexure 4, Exhibit 4, Figure 1.
Photograph 5[18] is a reconstruction by Professor Anderson of the specific points of impact of each motorcycle with the guardrail. Mr Nurse's Honda impacted with the barrier at F1, and Mr Donaldson's Yamaha impacted with the barrier at F2.
[18] Photograph 5, Annexure 5, Exhibit 4, Figure 11.
Photograph 4
Photograph 5
It is possible to narrow down the 10‑m stretch of road where the two motorcycles collided, and therefore where the alleged acts of negligent driving occurred, in the following way. Firstly, using the uncontested evidence regarding the points of impact of the motorcycles with the barrier as depicted by the 'X' on Photograph 4 and the point of impact of Mr Nurse's Honda at F1 and Mr Donaldson's Yamaha at F2 on Photograph 5.[19]
[19] Photograph 5, Annexure 5, Exhibit 4, Figure 11.
Secondly, using the scale on Photograph 3[20] as a measure of 40 m, the northern most point of the black line is approximately 30 m from the points of impact with the barrier. The southern most point of the commencement of the black line is approximately 20 m from the points of impact with the barrier at F1 and F2.[21]
[20] Photograph 3, Annexure 3, Exhibit 4, Figure 12.
[21] This is consistent with Exhibit 4, par 10.3.
I therefore take from the combination of the two that the point of collision between the two motorcycles occurred approximately 20 m ‑ 30 m to the north‑east of the points of impact with the barrier.
Without being unduly prescriptive, that analysis then focuses the area of the alleged acts of negligent driving occurring (logically) immediately prior to the point of collision, to a section of Alexander Drive approximately 20 m to roughly 40 m away from the points of impact with the guardrail.
Having undertaken that analysis, that constrains the geographical location or the stretch of road on which each Party claims the other rode negligently. For ease of reference in these reasons I will refer to this as 'the approach to the bend'.
PART 3: THE PLEADINGS
In this trial there were two trials running alongside each other. Mr Donaldson's claim against Mr Nurse (CIV 385 of 2022) and Mr Nurse's claim against Mr Donaldson (CIV 1904 of 2022).
3.1 Mr Donaldson's pleaded position CIV 385 of 2022
Mr Donaldson's pleaded position is that as he navigated the right bend adjacent to the Thongsbridge Street intersection (the bend),[22] Mr Nurse failed to negotiate the bend and overtook, and then passed in front of, Mr Donaldson's motorcycle from Mr Donaldson's right side.[23]
[22] Mr Donaldson's Statement of Claim CIV 385 of 2022 filed 29 April 2024, par 2(b).
[23] Mr Donaldson's Statement of Claim CIV 385 of 2022 filed 29 April 2024, par 2(b).
Mr Donaldson pleads further that as Mr Nurse's motorcycle passed in front of his motorcycle, the left-side of the rear tyre of Mr Nurse's motorcycle impacted with the front of Mr Donaldson's motorcycle causing Mr Donaldson to lose control of his motorcycle.[24]
[24] Mr Donaldson's Statement of Claim CIV 385 of 2022 filed 29 April 2024, par 2(c).
Mr Donaldson claims that Mr Nurse breached the duty of care he owed to Mr Donaldson as a fellow road user in failing to take reasonable precautions to prevent harm to Mr Donaldson. Specifically, that Mr Nurse:[25]
[25] Mr Donaldson's Statement of Claim CIV 385 of 2022 filed 29 April 2024, par 6(a).
(i)overtook Mr Donaldson's motorcycle when it was unsafe to do so;
(ii)travelled across Mr Donaldson's line of travel;
(iii)overtook too closely to Mr Donaldson's motorcycle which impacted upon Mr Donaldson's ability to control his motorcycle;
(iv)changed lanes when it was unsafe to do so;
(v)drove while intoxicated as that term is defined within s 5L of the Civil Liability Act 2002 (WA) (CLA);
(vi)drove while under the influence of heroin and/or other illicit drugs;
(vii)drove at a speed that was excessive in the circumstances;
(viii)failed to keep any, or any proper, lookout;
(ix)failed to pay due care and attention while riding his motorcycle and to take heed of the bend in the road;
(x)failed to brake, swerve, steer, manoeuvre and/or otherwise ride his motorcycle in a manner to avoid the accident; and
(xi)failed to adequately control his motorcycle so as to avoid the accident.
As a result of the accident, Mr Donaldson sustained serious injuries.[26]
[26] Mr Donaldson's Statement of Claim CIV 385 of 2022 filed 29 April 2024, par 3.
Mr Donaldson claims that the accident, and his injuries, were caused by Mr Nurse's negligence.[27]
[27] Mr Donaldson's Statement of Claim CIV 385 of 2022 filed 29 April 2024 par 4.
It is not necessary to set out the remainder of Mr Donaldson's pleadings as they replicate the legislative provisions in s 5B and s 5C of the CLA.[28]
3.2 Mr Nurse's pleaded position
3.2.1 Mr Nurse's defence to CIV 385 of 2022
[28] Mr Donaldson's Statement of Claim CIV 385 of 2022 filed 29 April 2024, pars 6(b), 6(c) and 6(d).
Mr Nurse admits that he owed a duty of care as the rider of a motor vehicle to take reasonable care for persons in the position of Mr Donaldson, namely other road users, by reason that it was reasonably foreseeable that persons in the position of Mr Donaldson might suffer harm if Mr Nurse failed to take reasonable care.[29]
[29] Mr Nurse's Defence CIV 385 of 2022 filed 15 May 2024, par 5.
Mr Nurse denies riding in a manner that was negligent[30] and denies that the accident and the injuries sustained by Mr Donaldson were caused by his (Mr Nurse's) negligence.[31]
[30] Mr Nurse's Defence CIV 385 of 2022 filed 15 May 2024, par 4.
[31] Mr Nurse's Defence CIV 385 of 2022 filed 15 May 2024, par 4.
Specifically, Mr Nurse does not admit:
(a)that he failed to negotiate the bend, nor
(b)that he overtook and passed Mr Donaldson's motorcycle from Mr Donaldson's right side, nor
(c)that as his motorcycle passed in front of Mr Donaldson's motorcycle, the left side of his (Mr Nurse's) motorcycle impacted with the front of Mr Donaldson's motorcycle causing Mr Donaldson to lose control of his motorcycle.[32]
3.2.2 Mr Nurse's claim against Mr Donaldson CIV 1904 of 2022
[32] Mr Nurse's Defence CIV 385 of 2022 filed 15 May 2024, par 2.
Mr Nurse pleads in both his Defence to Mr Donaldson's action against him,[33] and in his claim against Mr Donaldson,[34] that it was Mr Donaldson who was negligent.
[33] Mr Nurse's Defence CIV 385 of 2022 filed 15 May 2024, par 4.
[34] Mr Nurse's Defence CIV 385 of 2022 filed 15 May 2024; Mr Nurse's Amended Statement of Claim CIV 1904 of 2022 filed 6 February 2024.
Mr Nurse asserts that it was Mr Donaldson who was travelling behind Mr Nurse and who then drove his front wheel into Mr Nurse's rear wheel.[35]
[35] Mr Nurse's Amended Statement of Claim CIV 1904 of 2022 filed 6 February 2024, par 2.
Specifically, Mr Nurse pleads that Mr Donaldson was negligent in that Mr Donaldson:[36]
(a)failed to adequately or at all keep any or any proper lookout;[37]
(b)failed to ride with any or any proper control in that he permitted his front wheel to impact the rear wheel of Mr Nurse's motorcycle;[38]
(c)rode at a speed that was excessive in all the circumstances;[39]
(d)failed to adequately or at all brake in time to avoid the collision;[40] and
(e)failed to adequately or at all steer or control his motorcycle so as to avoid the collision.[41]
[36] Mr Nurse's Defence CIV 385 of 2022 filed 15 May 2024, par 4; Mr Nurse's Amended Statement of Claim CIV 1904 of 2022 filed 6 February 2024, par 3.
[37] Mr Nurse's Defence CIV 385 of 2022 filed 15 May 2024, par 4(a); Mr Nurse's Amended Statement of Claim CIV 1904 of 2022, par 3(a).
[38] Mr Nurse's Defence CIV 385 of 2022 filed 15 May 2024, par 4(b); Mr Nurse's Amended Statement of Claim CIV 1904 of 2022 filed 6 February 2024, par 3(b).
[39] Mr Nurse's Defence CIV 385 of 2022, filed 15 May 2024, par 4(c); Mr Nurse's Statement of Claim, CIV 1904 of 2022 filed 2 June 2022, par 3(c).
[40] Mr Nurse's Defence CIV 385 of 2022, filed 15 May 2024, par 4(d); Mr Nurse's Statement of Claim, CIV 1904 of 2022 filed 2 June 2022, par 3(d).
[41] Mr Nurse's Defence CIV 385 of 2022, filed 15 May 2024, par 4(e); Mr Nurse's Statement of Claim, CIV 1904 of 2022 filed 2 June 2022, par 3(e).
In denying that he rode his motorcycle in a manner that can be said to be negligent, Mr Nurse also denies that the injuries sustained by Mr Donaldson were caused by or materially contributed to by Mr Nurse's negligence.[42]
[42] Mr Nurse's Defence CIV 385 of 2022, filed 15 May 2024, par 6.
Mr Nurse asserts that the accident and any resultant injuries were wholly caused by Mr Donaldson's own negligence in any of the five ways pleaded.[43] In the alternative, Mr Nurse asserts that Mr Donaldson's injuries were contributed to by his own (Mr Donaldson's) negligence.[44]
[43] Mr Nurse's Defence CIV 385 of 2022, filed 15 May 2024, par 6; referring to par 4.
[44] Mr Nurse's Defence CIV 385 of 2022, filed 15 May 2024, par 6.
Prior to the commencement of the trial Mr Nurse applied to amend his Statement of Claim to include as particulars of negligence that Mr Donaldson drove whilst under the influence of illicit drugs and whilst intoxicated. That application was ultimately withdrawn. I detail this in [12.2] and my approach to the issue of illicit drugs in [14.3].
PART 4: MR DONALDSON'S EVIDENCE
4.1 Evidence-in-chief
Mr Donaldson gave evidence that he had been riding motorcycles since he was about 3 years of age. He grew up around motorcycles and road dirt bikes in the bush on the tracks and all throughout his younger years.[45] He has ridden all sorts of bikes including drag bikes and road bikes.[46]
4.1.1 Meeting Mr Nurse
[45] ts 19.
[46] ts 19.
He met Michael Nurse around August of 2020 'through a friend' and the two of them met up at the Dianella Plaza car park at just after 4.00 am on 12 September 2020.[47] He got to the Dianella Plaza car park on his motorcycle, a Yamaha 6‑speed, model R6 2005 motorcycle that he had owned for 10 years or so.[48]
[47] ts 19 - ts 20.
[48] ts 20.
Mr Donaldson initially told the court that he was in the Dianella area that evening because he was 'just sleeping in that area that night' and that he was 'at a chick's place - at a friend's'.
In his evidence‑in‑chief he gave no (plausible) account as to why he met up with Mr Nurse at the Dianella Plaza car park, nor what occurred during the course of that meeting.
Mr Donaldson said that when he left Mr Nurse in the car park before driving away, he saw Mr Nurse on the floor of the car park, next to the wall on the ground outside.[49]
[49] ts 21.
Mr Donaldson said that he took a photograph of Mr Nurse lying on the ground at the Dianella Plaza car park.[50] Mr Donaldson said that he took the photograph of Mr Nurse on his mobile telephone and that photograph was then saved as a screenshot under the name 'Troy Johnny's mate mobile + XXX XXXX 125'.[51]
[50] ts 22; Exhibit 1.
[51] ts 22; Exhibit 1A.
Later in his evidence he explained that the reason he took a photograph of Mr Nurse on the ground was to send to his girlfriend. She was 'hammering him' with messages asking where he was, in circumstances where Mr Donaldson was 'playing away from home' with another girl at the time.[52]
[52] ts 23.
He used the photograph as an excuse, telling his girlfriend that he was 'trying to help someone out'[53] and using the photograph to explain 'this is what I am dealing with' to get her off his back.
[53] ts 23.
When Mr Donaldson took the photograph of Mr Nurse on the ground Mr Donaldson gave evidence that he observed Mr Nurse to be 'like incoherent'.[54]
[54] ts 23.
Mr Donaldson said that his plans after meeting Mr Nurse at the Dianella Plaza car park was to head to Bunbury via Armadale. He was going to Armadale to drop off some aftermarket motorcycle foot pegs for a mate at his girlfriend's place to be picked up and to say goodbye to his girlfriend for the weekend before heading to spend the weekend with his 16‑year‑old daughter in Bunbury.[55]
4.1.2 The lead up to the collision and the collision
[55] ts 23 - ts 24.
Mr Donaldson gave evidence that from the Dianella Plaza car park he rode his motorcycle onto Alexander Drive heading southbound to go straight onto the freeway.[56]
[56] ts 24.
He said the conditions were quiet and the weather was clear but dark. In terms of the lighting at the time as he rode down Alexander Drive Mr Donaldson said the lighting was 'fine', that it was a 'well lit up road' and that his motorcycle had a working headlight.[57] He said that the headlight always turns on when the motorcycle is on and that it turns on automatically.[58]
[57] ts 25.
[58] ts 25.
As he was driving southbound along Alexander Drive Mr Donaldson's evidence was that he was in the left‑hand lane on the far left‑hand side (of the dual carriageway).[59] He said there was not much traffic at that time.[60]
[59] ts 24.
[60] ts 24.
Mr Donaldson said that his motorcycle is quite loud and he does not know if he had one or two headphones in at the time, like plug‑ins, but 'out of the blue' he heard a loud noise coming from his right-hand side.[61]
[61] ts 25.
Followed by that he said:[62]
I kind of was blinded by light which was also in front of me, the black and white signs were like, lit right up, the arrow.
[62] ts 24.
Mr Donaldson said that the reference to the black and white sign was a reference to him approaching a right‑hand bend, 'kind of a long right‑hand bend that has black and white arrows like caution arrows'.[63]
[63] ts 25.
It is not controversial that Mr Donaldson was referring to the arrow sign immediately to the north of the Thongsbridge Street intersection.
Mr Donaldson said that as he heard the loud noise, 'really quickly, over like a second or two at the most', the noise then stopped to quieten down. Mr Donaldson said that he was 'just about ready to get into the corner, to commit into the corner maybe 20 - 30 metres back'.[64]
[64] ts 25.
He then said this:[65]
After I heard the noise over my righthand side it was all lit up and then I seen the bike come past my righthand side straight - sort of in front of my line, and we kind of - I was going this way, we were kind of going the same way from 20, 30 metres back. I don't know what happened exactly in this gap between the noise and then the last thing was the bike was in front of me. I don't know if I hit the skids or not but I couldn't go any other way but squeezed in and we collided.
[65] ts 26.
Mr Donaldson explained that by his reference to being 'squeezed in' and not being able to go any other way meant that he was 'on the left coming around' and he was 'kind of committed to the corner. There's nowhere else to go' and that 'I had committed to taking the corner ... I was getting ready for it yeah'.[66]
[66] ts 26.
To his left was a barrier, a metal barrier like a guardrail. At the time that he saw the motorcycle in front of him he did not know at the time who was riding the motorcycle. He then said that as the motorcycle came past the last thing he saw was:[67]
it seemed like Michael was - like had his legs down like as if he was like bracing -bracing for impact so - yeah, that's the last I sort of seen before I - before impact.
[67] ts 26.
Mr Donaldson said that the front right‑hand tyre of his motorcycle hit the left-hand side of the back wheel of Mr Nurse's motorcycle.[68]
[68] ts 26.
In explaining why he collided with Mr Nurse's back wheel Mr Donaldson explained that he just had nowhere to go. He said:[69]
He - he's just come straight past me and cut me off. So I had nowhere to go and no time to sort of change my direction.
[69] ts 27.
At the time of the collision Mr Donaldson was (still) travelling in the left‑hand lane.[70] At the time that Mr Nurse's motorcycle intersected with Mr Donaldson's motorcycle, Mr Nurse's motorcycle was also in the left lane.[71]
[70] ts 27.
[71] ts 27.
Mr Donaldson marked in green on a street view of the dual carriageway along Alexander Drive heading south towards the Thongsbridge Street intersection his line of travel on the approach to the bend. He marked in red Mr Nurse's line of travel on the approach to the bend. The point at which the green and red lines intersect was where, on Mr Donaldson's evidence, the two motorcycles collided.[72]
Exhibit 2 Annexure 6
[72] Exhibit 2, Annexure 6.
Mr Donaldson gave evidence that as the motorcycles collided, he blacked out and the next thing he remembers was rolling to his finish. He said it felt like someone had an oxyacetylene torch on his legs, he thinks from the damage and the pain.[73]
[73] ts 29.
The first person who attended the scene he recalls was an off‑duty lifeguard and he does not remember anything after the heavy drugs he was given to get him off the floor. His next memory is waking up in a hospital room post‑surgery and his body was not the same.[74] He no longer had the ability to use his legs and said:[75]
Yeah I was a paraplegic yeah.
4.1.3 Mr Donaldson's interactions with Mr Nurse after the accident
[74] ts 29.
[75] ts 29.
Mr Donaldson gave evidence that he saw Mr Nurse twice after the accident. The first interaction was about a week or week and a half after the accident and Mr Donaldson saw Mr Nurse out the front of Royal Perth Hospital.[76]
[76] ts 29.
Mr Donaldson said he had a conversation with Mr Nurse and he felt that Mr Nurse was there to apologise to him and to support him. He had some toiletries for Mr Donaldson.[77]
[77] ts 30.
In that first interaction, Mr Donaldson said that Mr Nurse did not know what had happened exactly, but he indicated that he was going to support Mr Donaldson with any lawyers or anything he needed through all of this hard situation.[78]
[78] ts 30.
Mr Donaldson saw Mr Nurse on a second occasion approximately three days after the first occasion. Mr Donaldson was still in hospital then. There was no evidence as to what was discussed on that second occasion.
4.2 Cross-examination
4.2.1 Meeting Mr Nurse
Mr Donaldson accepted in cross‑examination that he got out of bed and pretty much drove straight to Dianella Plaza car park to 'see a friend' who he named as Mr Nurse. He agreed it was a prearranged meeting. Mr Nurse had rung him and said: 'let's catch up'.
Mr Donaldson initially denied that in his examination‑in‑chief he had not been entirely transparent (my words) about the circumstances of his meeting with Mr Nurse.[79]
[79] ts 33.
Mr Donaldson conceded in cross‑examination that his meeting with Mr Nurse was a prearranged meeting, but denied that the purpose of the meeting was to then go and see a third person.
When pressed for the details of why he met Mr Nurse at the Dianella Plaza car park Mr Donaldson indicated that he might be incriminating himself.
It was plain that the purposes of the meeting between Mr Donaldson and Mr Nurse was for illicit reasons. It was further apparent (to me) that Mr Donaldson had not given a full, nor honest, account of the circumstances of his meeting with Mr Nurse in his evidence‑in‑chief. It was plain that he was still skirting around the circumstances of the meeting with Mr Nurse at the commencement of his cross-examination.
I considered that the reasons for the meeting, what occurred at the Dianella Plaza car park and what occurred immediately after the meeting were relevant in a number of respects, including to my findings of fact, specifically to some of the pleaded particulars[80] of Mr Donaldson's claim against Mr Nurse and to my overall assessment of the credibility of both Parties. I therefore considered that the interests of justice required that Mr Donaldson give a full and honest account of those events and I granted him immunity from prosecution under s 11 of the Evidence Act 1906 (WA).
[80] See particulars (v) and (vi) of Mr Donaldson's claim against Mr Nurse CIV 385 of 2022.
Mr Donaldson then gave evidence about the nature of his meeting with Mr Nurse at the Dianella Plaza car park. Mr Donaldson said that 'there were parts missing',[81] which I take to be a reference to him being economical with the truth in his evidence‑in‑chief as to how and under what circumstances he met up with Mr Nurse in the early hours of 12 September 2020.
[81] ts 33.
Mr Donaldson said that the night before Mr Nurse was withdrawing and was calling Mr Donaldson asking for 'something' without cash (on credit). Mr Donaldson said that Mr Nurse had called him numerous times over the previous 12 hours. Mr Donaldson had saved Mr Nurse as a contact in his phone under 'Troy, Johnny's mate'.[82]
[82] ts 34.
Mr Donaldson arranged to meet Mr Nurse at around 4.00 am[83] which was close enough to the time that Mr Donaldson was leaving to go to Bunbury that morning. Mr Donaldson said that he got out of bed and rode to meet Mr Nurse at the shops.[84]
[83] ts 33.
[84] ts 32 - ts 33.
Mr Donaldson said he saw Mr Nurse and then he had ridden around the corner before returning. That is when he saw Mr Nurse lying on the ground and took a photograph of him.[85]
[85] ts 34.
When Mr Donaldson returned Mr Nurse was waiting for him. Mr Donaldson said that Mr Nurse 'got his stuff' and 'yeah he was sick' and that 'he's had his gear there'.[86]
[86] ts 35.
Mr Donaldson agreed that he had sold Mr Nurse some drugs.[87]
[87] ts 36.
Mr Donaldson said that he just had heroin on him which he was selling.[88] He did not disagree that police found heroin in his wallet.[89]
[88] ts 36.
[89] ts 36.
Mr Donaldson did not specify which type of illicit drugs he supplied to Mr Nurse, whether heroin, methylamphetamine or some other drug.
Mr Donaldson said he tried to 'kick him in the guts', but it was probably over 5 minutes until he was 'like freshened up and off the floor'.[90] By kicking him in the guts, Mr Donaldson said that was just a figure of speech - it was like getting him to wake up and he then woke up and came to.[91]
4.2.2 Leaving the car park and the lead up to the collision
[90] ts 34.
[91] ts 35.
Mr Donaldson said that he was on his motorcycle and Mr Nurse was doing his jacket up and jumping on his motorcycle as Mr Donaldson departed.[92]
[92] ts 35.
Mr Donaldson denied that there was any agreement between the two men to travel together to West Perth to an address that was known only to Mr Nurse (and not to Mr Donaldson) in order to buy drugs.
Mr Donaldson said that there was no such arrangement. Mr Donaldson said that he had his 'own sources', which I take to be a reference to his ability to source illicit drugs to sell or supply into the community.[93]
[93] ts 36.
Mr Donaldson said:[94]
I was the dealer. He was the addict.
[94] ts 35 - ts 36.
Mr Donaldson denied that he and Mr Nurse then rode together from the Dianella Plaza car park to where the collision occurred.[95]
[95] ts 36.
Mr Donaldson denied travelling together with Mr Nurse and denied that Mr Donaldson had been travelling on the right‑hand side of Mr Nurse.[96]
[96] ts 36.
Mr Donaldson said he had no recollection of stopping at any traffic lights at any intersection before the collision.[97]
4.2.3 The collision
[97] ts 36.
In terms of the mechanics of the collision, Mr Donaldson denied that he collided with Mr Nurse's back wheel to the right‑hand side. He said:[98]
No sir. Not my recollection.
[98] ts 36.
When asked whether that could have happened, he replied 'no'.[99]
[99] ts 36.
Mr Donaldson was shown the reconstructed crash site at Photograph 5[100] accepting as a premise that F1 indicates where Mr Nurse's motorcycle impacted with the barrier. Mr Donaldson denied in cross‑examination that he must have clipped Mr Nurse's motorcycle on the right‑hand side for Mr Nurse to then hit the barrier at F1.[101]
[100] Photograph 5, Annexure 5, Exhibit 4, Figure 11.
[101] ts 37.
Mr Donaldson denied that if he hit the barrier at F2 on Photograph 5[102] Mr Nurse must have been hit by Mr Donaldson from his left‑hand side. He said no.[103] Mr Donaldson denied that he had to have hit him with his left‑hand side onto Mr Nurse's right‑hand side.[104]
4.2.4 Other matters going to credit
[102] Photograph 5, Annexure 5, Exhibit 4, Figure 11.
[103] ts 37.
[104] ts 38.
Mr Donaldson agreed that at the time he did not have a valid licence to ride his motorcycle. He admitted that he was subsequently charged and pleaded guilty to riding with a disqualified motor driver's licence, in respect of which he was fined $1,000 and disqualified for a further 9 months.[105]
[105] ts 38.
Mr Donaldson's blood alcohol reading after the crash was nil. However, he tested positive to having methylamphetamine in his blood (0.24 mg/L) and positive to amphetamine (0.06 mg/L).[106] Mr Donaldson was subsequently charged with driving with a prescribed illicit drug in his blood and he pleaded guilty to that offence.
4.2.5 Where there was no evidence
[106] ts 38 - ts 39.
Mr Donaldson was not cross-examined (nor examined‑in‑chief) about his speed on the approach to the bend. That was consistent with the way in which the trial was conducted on the issue of speed. I deal with this in [10.2].
Neither was there any evidence as to the effect, if any, of the illicit drugs in Mr Donaldson's blood on his manner of driving. I deal with this in [12.2] and [14.3].
PART 5: MR NURSE'S EVIDENCE
5.1 Evidence-in-chief
Mr Nurse gave evidence that he lived in Esperance for several years and owned a motorcycle that he rode pretty much every weekend, before moving to Perth and getting into road bikes.[107]
[107] ts 68.
Mr Nurse admitted that he had struggled with addiction, 'several' times, and that as of 12 September 2020 he did not have a valid driver's licence.[108]
5.1.1 Meeting Mr Donaldson
[108] ts 68.
On the evening of 12 September 2020, Mr Nurse said that he had been 'working on his bike' for quite a few hours into the morning and leading up to the accident. He said he had been in contact with Mr Donaldson throughout that time to arrange to meet up. He said:[109]
I wanted to test the bike out. I'd been working on it. He knew a bit more about bikes than what I did that we agreed to meet up at Dianella Plaza which we did and then from there we were going to go to a friend of mine's place in Havelock Street in West Perth to see what he was up to.
[109] ts 68.
In respect to Mr Donaldson's evidence that at Dianella Plaza car park he had given Mr Nurse some drugs Mr Nurse's response was non‑responsive:[110]
That's what he alleged yeah.
[110] ts 69.
He was then asked whether that was correct and he said:[111]
no it wasn't, not at all.
[111] ts 69.
Mr Nurse denied that the man lying on the concrete ground in the photograph taken by Mr Donaldson was him. He said that he had 'no idea who that is' but that 'it's definitely not me'.[112]
5.1.2 The lead up to the collision
[112] Exhibit 1; ts 69.
Mr Nurse said that he and Mr Donaldson left Dianella Plaza car park just after 4.00 am. Mr Nurse said that the agreement was for Mr Donaldson to follow him because Mr Donaldson did not know the address of Mr Nurse's friend in Havelock Street.[113]
[113] ts 68.
Mr Nurse said that he and Mr Donaldson pulled up at the traffic lights of either Bradbury or Bradford Street. Mr Nurse said that his last visual observation of Mr Donaldson was at the lights and that Mr Donaldson was in the right‑hand lane.[114]
[114] ts 68 - ts 69.
He then said this:[115]
We pulled up. I was in the left lane. Shaun was in the right‑hand lane. I accelerated to approximately 60 km per hour. Braked, started braking to hit the corner and that's all I remember. I got hit from behind, forced into the railing and yeah.
5.2 Cross-examination
5.2.1 Matters going to credit
[115] ts 68.
Mr Nurse agreed that the registration plates on his motorcycle were false, but maintained that it was his motorcycle.[116] It was put to him that that was not his motorcycle at the time. In the face of the VIN number for the Honda being registered to another person, Mr Nurse maintained that he was the owner of the motorcycle but that he had not yet transferred it into his name.[117] Mr Nurse said that he had had the bike for 3 - 4 months and he agreed it was a very powerful motorcycle.[118]
[116] ts 69.
[117] ts 70.
[118] ts 70.
Mr Nurse admitted that he has a criminal history including of armed robbery and multiple offences of fraud.[119] Mr Nurse's criminal history was tendered into evidence.[120]
[119] ts 74.
[120] Exhibit 5; ts 74.
Mr Nurse denied that the screenshot of the person on the ground[121] saved (by Mr Donaldson) under 'Troy, Johnny's mate' with the phone number XXX XXXX 125 was him. Mr Nurse agreed that he goes under an alias 'Troy'. He said 'yes, Troy Craven, that's the alias on Facebook yes'.[122] Mr Nurse ultimately agreed that his phone number at the time was XXX XXXX 125.
5.2.2 Illicit drugs
[121] Exhibit 1A.
[122] ts 70.
Mr Nurse was cross-examined that he had taken drugs at the Dianella Plaza car park before getting on his motorcycle. The following exchange took place:[123]
So you had taken drugs at the Dianella Plaza car park before getting on your motorbike, didn't you?---What was the alleged drug?
Either amphetamine or heroin?---No, I didn't.
And can I suggest to you that this answer is untruthful?---Couldn't have been heroin.
[123] ts 73.
The import of his evidence was to deny having taken any illicit drugs at the Dianella Plaza car park.
It was put to Mr Nurse that he was under the influence of, or impaired by, drugs at the time he was riding immediately prior to the crash. He replied:[124]
No I wasn't. I had drugs in my system. I'd probably used 72 hours prior.
[124] ts 70; ts 98.
Mr Nurse maintained that he had not taken illicit drugs 24 hours prior to the accident.[125] Mr Nurse denied taking heroin before the accident and he denied taking an illicit substance before the accident.[126]
[125] ts 73.
[126] ts 77.
Mr Nurse agreed that after the accident he returned a positive blood test to methylamphetamine (0.1 mg/L) and amphetamine (0.02 mg/L).[127]
[127] ts 73.
Mr Nurse denied that he was feeling the effects of the amphetamine and methylamphetamine found in his system at the time of the crash and said:[128]
No I wasn't. I'll say it again. I used 72 hours prior to the accident but it was not 24.
[128] ts 74.
Mr Nurse denied that he was impaired by those drugs and that any such impairment from the drugs impacted the way in which he rode his motorcycle. He said no.[129] Whilst there were two propositions in this question, ultimately Mr Nurse denied both propositions. Later in cross‑examination he denied riding whilst impaired by drugs.[130]
5.2.3 What Mr Nurse told medical staff about illicit drugs - the hospital records
[129] ts 74.
[130] ts 98.
Following the accident, Mr Nurse was admitted to hospital. Numerous medical records were tendered into evidence at trial.
Mr Nurse agreed that he told hospital staff that he used intravenous heroin daily[131] because he wanted to get some methadone, he wanted stronger pain medication because he was in excruciating pain and the medication he was given was not working.
[131] ts 78.
The Royal Perth Hospital Trauma Tertiary Survey medical notes[132] records under the heading 'Mechanism of injury. Precipitating factors the notation 42‑year‑old male. High speed MBC 150 km per hour into guard rail while under influence of heroin'. The entry is dated 14 September 2020.
[132] Exhibit 22.
Mr Nurse's evidence was that he thinks he told hospital staff that he consumed heroin before the accident and that he had done so in order to get stronger pain medication.[133] He agreed that he therefore exaggerated his use[134] and to thereby lying to hospital staff to get more medication.[135]
[133] ts 80.
[134] ts 78.
[135] ts 78.
The Royal Perth Hospital inpatient case notes document an entry dated '14.9.20 at 14.50' that says '46 y o man past MBA IVDU heroin - intoxicated at time of accident. SIB APS - commence methadone'.[136]
[136] Exhibit 20, page 302.
Mr Nurse was cross‑examined that he told hospital staff on 14 September at around 2.50 pm that he was intoxicated at the time of the accident. He said: 'Well I might have said that but I wasn't'. He then said 'I don't recall'.[137]
[137] ts 81.
It was then suggested that Mr Nurse was telling hospital staff the truth because they were treating him. He replied: 'I don't recall'.[138]
[138] ts 82.
Mr Nurse was cross‑examined about a note documented by (on its face) clinical psychologist Adile Drew dated 15 September 2020 at 2.40 pm:
Thank you for your referral. Reason for referral - 42 yr old male high speed MVA. Heroin onboard and PT was intoxicated.
Mr Nurse could not recall if three days after the accident he told staff that he had taken heroin 'on board' at the time of the accident. He replied:[139]
I don't recall, I don't know.
[139] ts 82.
Mr Nurse was cross-examined about an entry in the Royal Perth Hospital Inpatient Case notes[140] on 15 September 2020 at 2.30 pm with the stamp 'Social work'. It records:
Michael was admitted to RPH on the 12/9/20 following a motorbike accident whereby Michael was driving his friend was on a separate bike they were both travelling at 150 kmph they veered into the safety barrier both were under the influence of heroin.
[140] Exhibit 20, page 310.
It was put to Mr Nurse that on 15 September 2020 he told hospital staff that he was intoxicated at the time of the accident. Mr Nurse was initially non‑responsive in his evidence. He replied:[141]
the blood test says differently doesn't it?
[141] ts 82.
When the question was asked again, his response was that he did not recall telling hospital staff that he was intoxicated at the time of the accident.[142]
[142] ts 83.
Mr Nurse was not cross‑examined about the entry in those notes to speed.[143]
[143] Exhibit 20, pages 310 - 311. See Part 11.
On the following page, still part of the same hospital note by the social worker, on 15 September 2020 in the same handwriting as the previous page, there is a reference to:
AOD: Michael reports he is addicted to heroin and has been for 20 plus years.
Mr Nurse said that he was struggling with heroin addiction most of his adult life.[144]
[144] ts 83.
Mr Nurse was cross‑examined about an entry in the Royal Perth Hospital discharge summary dated 16 September 2020.[145] That records under 'Clinical Synopsis' the following:
Clinical synopsis information presenting history: 42-year-old male, MBA v MBA @ 150 km/hr - went into guardrail, helmet worn had taken heroin and documented in medical notes.
[145] Exhibit 21, page 262.
Mr Nurse agreed that he had told hospital staff that he went into a guardrail, and he told them that he was wearing a helmet. It was suggested to Mr Nurse in cross‑examination that he told hospital staff that he'd taken heroin. He said 'I don't recall saying that'.[146]
[146] ts 84.
Again, there was no cross‑examination of Mr Nurse about the notations relevant to speed.[147]
5.2.4 Mr Nurse's memory of the accident
[147] See below Part 11.
Mr Nurse was cross-examined extensively about his memory of the accident, what he had, and had not, told hospital staff and subsequent medical practitioners about the accident, and when his memory 'returned'. Whilst the cross-examination on this aspect of Mr Nurse's evidence is long, it is necessary to set it out in some detail to explain my findings of fact.
The St John Ambulance Patient Care record for Mr Nurse[148] contains a notation: 'Pt unable to recall events, unable to state speed'. Mr Nurse accepted in cross‑examination that he was unable to recall events at that point in time, that is, when he spoke to St John Ambulance officers at the scene.[149] He accepted that that was the case and said that he was 'severely concussed at the time'.[150]
[148] Exhibit 7.
[149] ts 75.
[150] ts 75.
It was suggested to Mr Nurse in cross‑examination that he did not tell hospital staff or the St John Ambulance staff that he had been 'rear‑ended' or struck by Mr Donaldson from behind. He replied:[151]
At that point I was - I had no recollection of the actual incident.
[151] ts 84.
Mr Nurse was cross-examined about entries on Royal Perth Hospital inpatient notes for 13 September 2020 with the stamp 'OT' and the reference 'GCS 13 at scene, amnesic to events. ? heroin on board. CTH(N)'.[152]
[152] Exhibit 20, page 298.
In relation to the entry 'Amnesic to events', Mr Nurse's evidence was that he does not recall whether that is what he told staff at Royal Perth Hospital the day after the accident.[153] In cross-examination Mr Nurse agreed that it was pretty tough remembering specific events from four years ago.
[153] ts 80.
It was suggested to Mr Nurse in cross‑examination that in giving his evidence in court he was not able to recall the events of the accident. His evidence was not entirely clear at this point. He initially replied: 'no. Not after the impact'.[154] He then said:[155]
I can't recall the impact no. But events leading up to the accident I can and after I woke up in hospital I can yeah. It took a while for my memory to come back.
[154] ts 75.
[155] ts 76.
Mr Nurse was cross-examined at some length about when his memory returned. It was suggested to him in cross‑examination that no prior account was given by him of the events of the accident for some considerable time after the accident, a matter of many months.[156]
[156] ts 84.
Mr Nurse said that he eventually gave (the Insurance Commission) his version of events of the accident, 'at the right time I did'.[157]
[157] ts 85.
It was suggested to Mr Nurse that the 'right time' to complete or to provide his version of events was when it was fresh in his memory shortly after it happened. He then said this:[158]
I suffered a severe [indistinct] and mental issues as well with the accident because of the way Shaun ended up as well. I was struggling with that emotionally. So I was probably - I probably didn't want to deal with it at the time … emotionally I wasn't able to'.
[158] ts 85.
As to when Mr Nurse's memory returned, he gave evidence that he went to prison in January 2021 and was released in January 2022. He agreed that he instructed Simon Walters solicitors when he was in prison.[159]
[159] ts 86.
It was suggested to Mr Nurse in cross‑examination that when he instructed Simon Walters to represent him in this case, he could not recall the events relating to the accident on 12 September 2020. He said:[160]
Well everything was clearing up. I was ready to deal with it and spoke to Simon to help me with.
[160] ts 87.
It was suggested to Mr Nurse in cross‑examination that before he instructed Simon Walters his memory had not recovered. His response was:[161]
It was slow coming back. I was in prison. I was clean. I was in a bit of an emotional state to deal with the stuff that happened from the accident and my life in general.
[161] ts 88.
Mr Nurse's evidence about whether he had provided a response to the Insurance Commission as at 22 June 2021 was non‑responsive and evasive. He said any response that he gave was always through Simon (Walters) but he never dealt with them directly. He agreed that he had not responded to the Insurance Commission directly as at 22 June 2021 but said that he was 'not sure' if Simon (Walters) had on his behalf.[162]
[162] ts 89.
Mr Nurse was taken to an email from Matthew Brown at the Insurance Commission to [email protected] dated 13 October 2021 which noted:
I advise that in the absence of your client's version of events we have not been able to progress our investigations in relation to liability.
It was suggested to Mr Nurse that as at 13 October 2021 he had not responded to the Insurance Commission's request for information. Mr Nurse said that he was trying to get released from jail between then and January. He said this:[163]
I knew I had three years to deal with it from the accident so I was aware of the - the statute of limitations so I was waiting until I got out, I think, to do that, I think, but I can't really remember.
[163] ts 89.
Ultimately Mr Nurse's evidence appeared to be that he was 'unsure' as to whether he had responded to the Insurance Commission's request for information as at 13 October 2021.[164]
[164] ts 90.
It was put to Mr Nurse in cross‑examination that as at 13 October 2021 he had no recollection whatsoever as to the events that occurred on 12 September 2020. His response was:[165]
It was slowly coming back, yeah.
5.2.5 What Mr Nurse told Dr Goodheart on 14 December 2021
[165] ts 90.
Mr Nurse agreed that he spoke to Dr Ross Goodheart, a Consultant Neurologist, via video link from prison on 14 December 2021. Dr Goodheart had been instructed by Mr Nurse's solicitor Simon Walters by letter 19 October 2021.[166]
[166] Exhibit 24.
Mr Nurse agreed in cross‑examination that Dr Goodheart asked Mr Nurse questions and Mr Nurse provided Dr Goodheart with answers.[167]
[167] ts 90.
Dr Goodheart wrote to Simon Walters by letter dated 14 December 2021. That letter reads:[168]
I was told that he was the rider of a motorbike and was travelling at some speed. He may have been involved in a collision with another motorbike. He has been told that he was thrown from his motorbike onto the road surface. There was a period of loss of consciousness. Mr Nurse has no particular recollection of events immediately before or after the incident.
[168] Exhibit 24; ts 91 - ts 93.
Mr Nurse agreed in cross‑examination that he told Dr Goodheart that he 'may have been involved in a collision with another motorcycle'.[169]
[169] ts 91.
In response to whether he had told Dr Goodheart that he had been told that he was thrown from his motorcycle onto the road surface, Mr Nurse answered 'I had been told that I had been thrown'.[170]
[170] ts 91.
Mr Nurse agreed that he told Dr Goodheart that there was a period of loss of consciousness and that he told Dr Goodheart that he had no particular recollection of events immediately before or after the crash.[171]
[171] ts 91.
When Mr Nurse was asked in cross‑examination that he had told Dr Goodheart that because it was true, Mr Nurse's evidence again was evasive. He answered:[172]
I can put it in a timeframe if you want.
[172] ts 91.
Mr Nurse then conceded that he did tell Dr Goodheart that he had no recollection of the events surrounding the incident.[173] It was then suggested to Mr Nurse that he told Dr Goodheart that because that was the truth, namely that Mr Nurse had no recollection of the events leading up to the accident. He replied:[174]
It is, yes. The collision yes definitely. Yes. The immediate point of impact is …
[173] ts 91.
[174] ts 92.
Mr Nurse's answer was cut short but was followed by this exchange:[175]
QYou can't remember the events immediately before either?
AA couple of seconds before, a couple of seconds after. I can't no.
[175] ts 92.
Mr Nurse agreed with the proposition that the reason why he was giving evidence in the case is to say that he remembers being rear‑ended.[176]
[176] ts 92.
It was further suggested to Mr Nurse that the reason why he was giving evidence to say that he remembered being rear‑ended was in order to further his own compensation claim, and that it was not true. His response was:[177]
I just want the truth. No it's not true what you're saying.
[177] ts 92.
The following exchange then occurred:[178]
Q:…just to be clear Mr Nurse you accept that Dr Goodheart asked you a question about what happened in the accident?
A:Yes.
Q:And you told him you have no particular recollection of events immediately before or after the accident?
A:Immediately being probably several seconds before and seconds after the time of impact.
[178] ts 92.
Mr Nurse was challenged in cross-examination that he did not tell Dr Goodheart anything else relating to the accident. Mr Nurse replied:[179]
Well he didn't ask.
[179] ts 92.
He went on to say that he was there (to see Dr Goodheart) about his neurological problems, sleeping and nightmares and all that.[180]
[180] ts 92.
It was suggested to Mr Nurse in evidence that he could not remember the events of the accident when he saw Dr Goodheart. Mr Nurse replied:[181]
the time of the collision no but the events leading up to it yes and then shortly after. But around the time of the actual impact or the collision - because Shaun was behind me so I didn't see him hit me from behind and then you guys got your engineers report that explained it a bit more for me as well. So as information came to light I began to piece things together.
[181] ts 93.
Mr Nurse then agreed with the proposition that he was saying that he had reconstructed his memory over time.[182]
[182] ts 93.
It was put to Mr Nurse in cross‑examination that he did not have a genuine recollection of the accident as at 14 December 2021 when he spoke to Dr Goodheart. Mr Nurse responded by saying:[183]
Well he wasn't asking about the events leading up to it, about fixing my motorbike, this and that. It was just - he was worried about the impact, the impact that I suffered ... the concussion that I suffered at impact.
[183] ts 93.
There was no cross-examination about any reference to speed in the letter from Dr Goodheart.[184]
5.2.6 What Mr Nurse told Dr De Felice on 9 May 2022
[184] See Part 10.
Mr Nurse gave evidence that he attended on Dr De Felice, a psychiatrist approximately 5 or 6 months after he saw Dr Goodheart.[185] This was a bit over a year after he had instructed Simon Walters to represent him in the case.[186]
[185] ts 94.
[186] ts 94.
Mr Nurse agreed that he was asked questions by Dr De Felice and he provided answers.[187]
[187] ts 94.
Dr De Felice wrote to Simon Walters dated 9 May 2022[188] indicating that Dr De Felice assessed Mr Nurse 'today' namely on 9 May 2022. The letter from Dr Felice to Simon Walters provides:[189]
Mr Nurse described his motorbike accident (MBA) of 12 September 2020. He said he was the helmeted rider of his own motorbike coming to a righthand bend when he braked to go round the corner. He said that was his last memory and his next memory was being on his back and he thought the ambulance was already there but he wasn't sure saying he was in and out of consciousness.
Mr Nurse said the only witness was his friend who was riding his own motorcycle and he reported that Michael was going too fast, his friend claiming to have gone on his outside to protect him but came off himself. Mr Nurse said he had what he thought were patchy glimpses but concluded that this friend's story was physically impossible, his friend blaming him since he had become paraplegic from the accident.
[188] Exhibit 25.
[189] Exhibit 25, pages 403 - 410.
Mr Nurse accepted that in May 2022 he told Dr De Felice that his last memory was applying the brakes as he was going around the corner. He agreed that that was his last memory.[190]
[190] ts 94.
It was put to Mr Nurse that he had no memory of the collision at that point in time. He replied:[191]
Of the impact no because I was hit from behind.
[191] ts 95.
Mr Nurse agreed ultimately in cross-examination that he had no real recollection of the events leading to the motorcycle accident. He said:[192]
Correct, because I was hit from behind. Yes. And that was Shaun was trying to tell me what had happened.
[192] ts 96.
It was put to Mr Nurse in cross‑examination that he told Dr De Felice that he was trying to remember what happened. Mr Nurse replied:[193]
At impact yes. I was trying to work out the whole - because his story didn't add up. His - the way his - his version of events didn't sit right with me … so that was something I was grappling with.
[193] ts 96.
Mr Nurse accepted that he told Dr De Felice that he was trying to remember what happened in the accident. He denied, however, that that was because he had no clear memory of the accident. He said:[194]
no, because I was hit from behind.
[194] ts 96.
It was suggested to Mr Nurse in cross-examination that he did not tell Dr De Felice that he was hit from behind.[195] He responded:
Well, it was only your engineer's report. That's what told me that.
[195] ts 96.
The following exchange then occurred:[196]
Q:So is that the first time you formed the belief you were hit from behind when you received Professor Anderson's report?
A: No. Listening to Shaun's story, that didn't add up. Looking at the investigations that Simon - Simon started doing investigations, drawing pictures … putting together reports himself and we started piecing it together based on the police report, marks on the road, what was possible what isn't.
[196] ts 96.
Mr Nurse was challenged again in cross‑examination that the starting point was that he had no recollection of the accident. He responded:[197]
Of the impact.
[197] ts 96.
It was put to Mr Nurse that he had tried to piece together the circumstances of the accident since it occurred. He answered:[198]
Yeah I wanted to find out exactly what happened.
[198] ts 97.
Mr Nurse said further that Mr Donaldson's version of events just physically does not make sense.[199]
[199] ts 97.
Mr Nurse denied that he had only started piecing together what had happened as of 9 May 2022.[200]
[200] ts 98.
On 10 May 2022 Mr Nurse agreed that he commenced proceedings against Mr Donaldson. He said that was:[201]
In reaction to him suing me, yeah. You've got to defend yourself.
[201] ts 98.
It was suggested to Mr Nurse in cross-examination that he instructed his solicitors to sue Mr Donaldson despite at that point in time not knowing what happened in the accident. He answered:[202]
Well I know I had been struck at speed from behind and the road rules are pretty clear on that and I wasn't gonna file anything but …
[202] ts 98.
Mr Nurse denied that when he saw Mr Donaldson after the accident in hospital that he accepted at that point in time that he had caused the accident. He said: 'No I didn't. I didn't say anything'.[203]
[203] ts 99.
It was again put to him that he actually had no recollection of the events leading up to the accident. He responded:[204]
Leading up to it yes, but the point of impact no.
[204] ts 99.
It was put to him that he's bringing his claim on the basis of an allegation which is false. He said:[205]
it's my response to Shaun filing a claim against me.
[205] ts 99.
He was then asked:[206]
Q:So is your evidence that because Mr Donaldson commenced proceeding against you, you saw it fit to commence proceedings against him?
A:I'm defending myself. I've got a right to defend myself.
5.2.7 The lead up to the collision
[206] ts 100.
Mr Nurse maintained that he and Mr Donaldson were going to a house in West Perth. He said Mr Donaldson was following him and that was the agreement.[207]
[207] ts 98.
He denied that Mr Donaldson was in front of Mr Nurse in the left‑hand lane.[208]
[208] ts 98.
Mr Nurse denied that he overtook Mr Donaldson on his right as they approached the corner or the right‑hand bend near Thongsbridge Street.[209]
[209] ts 98.
Mr Nurse denied cutting off Mr Donaldson's path as he approached the corner and denied that that was because he was going at excessive speed. He said: 'No I wasn't'.[210]
[210] ts 98.
He agreed he slowed down because he anticipated the corner.[211]
[211] ts 98.
Mr Nurse denied that he intersected the path of Mr Donaldson's motorcycle in the left‑hand lane. He maintained that he was in the left‑hand lane the 'whole time'[212] and that he did not know what happened behind him:[213]
All I know is I got impacted from behind, pushed into the barrier.
[212] ts 99.
[213] ts 99.
It was suggested to Mr Nurse that he had cut Mr Donaldson off near the corner and that had caused the collision between the two motorcycles. Mr Nurse denied cutting Mr Donaldson off. He said that Mr Donaldson's front wheel hit Mr Nurse's back wheel and he was in the left‑hand lane.[214]
[214] ts 99.
Mr Nurse denied overtaking Mr Donaldson in front on an angle and he denied that the accident was entirely his fault.[215]
5.2.8 Where there was no evidence
[215] ts 99.
Mr Nurse was not cross-examined in any detail about his speed. The only reference in cross-examination to speed was the suggestion that Mr Nurse had cut Mr Donaldson off as he approached the corner and that was because he was travelling at an 'excessive speed'. This question contained two propositions. Ultimately Mr Nurse answered that question as if it were confined to the issue of him travelling at an excessive speed by denying that he was. He was not pressed on this further.
In so far as the medical records referenced 'high speeds' or particular speeds that were plainly very high, for example, 150 km per hour,[216] Mr Nurse was not cross‑examined on those aspects of the medical records that referenced speed.
[216] See for example Exhibit 22.
In re-examination Mr Nurse agreed that when he spoke to St John's Ambulance at the scene he did not remember what speed he was doing.[217]
[217] ts 101; Exhibit 7.
I deal with the issue of Mr Nurse's speed in Parts 9.8 and 10.
PART 6: MY ASSESSMENT OF THE WITNESSES
6.1 General
It is necessary for me to assess the credibility and reliability of the evidence of Mr Donaldson and Mr Nurse as witnesses and to thereby determine the weight to be given to the respective witness' evidence.[218]
[218] King v Nash [2022] WASC 102.
In determining credibility, I am assessing the honesty of the witness. In assessing credibility I have taken into account whether the witness answered the question openly and fully, explaining his evidence and the reasons for reaching his conclusions, or whether the witness demonstrated an unwillingness to fully and frankly answer the questions asked of him.
In determining reliability, I have assessed whether the witness gave an accurate account of what he saw, heard or did. In this case in determining the reliability of Mr Donaldson's evidence and Mr Nurse's evidence, I have considered whether the witness in fact had a genuine recollection of the events upon which they were giving evidence.
I have considered whether the witness' testimony was consistent with what had been said on a previous occasion and, if there were any inconsistencies, whether those inconsistencies were in respect of significant matters or matters of little significance. I have further considered whether there was any reasonable explanation for those inconsistencies.
I have taken into account whether the evidence of Mr Donaldson and Mr Nurse was internally consistent, that is, whether it remained consistent throughout examination in chief, cross-examination and any re-examination. In so far as there were inconsistencies within the witness' evidence, I have examined the significance of those inconsistencies and the reasons for those inconsistencies.
I approach the oral evidence given by both Mr Donaldson and Mr Nurse with great care. Where possible, I assess the evidence of each against any external or objective evidence that I accept as honest, accurate and reliable.
Where there is no objective evidence against which to measure the honesty, accuracy and reliability of the oral evidence given by either man, I have carefully assessed the manner in which each gave his evidence.
I carefully observed the demeanour of each man, whether there was any hesitation in answering questions, whether I formed the impression that either man was lying or seeking to embellish his answers and whether, if either was not sure about an issue, he said so or whether he attempted to guess.
I also carefully assessed whether there was any contemporaneous evidence that I accept as reliable and accurate, that sheds light on whether the witness had a genuine recollection of the events about which he gave evidence or whether the witness sought at trial to reconstruct events to suit his narrative.
I am not required to accept all of a witness' evidence, neither am I required to reject all of a witness' evidence. I am able to accept part of a witness' evidence and to reject other parts of that witness' evidence.[219]
[219] Lehrmannv Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 [136] (Lehrmann).
Where I formed the impression that a witness was untruthful about a particular part of their evidence, I have carefully considered whether that goes to a fact in issue in this case, or whether it goes to my overall assessment of the witness' evidence generally.
My approach is that disbelief of any aspect of either Mr Donaldson's account or Mr Nurse's account does not establish the contrary or, in general terms, that a witness giving a contrary account must be believed.[220]
[220] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, 385 - 386, [60]; Lehrmann [131].
'False in one thing does not mean false in everything'.[221]
[221] Lehrmann [136].
What is significant is not the mere fact of untruthfulness but the relevance to the issues in dispute. A finding that a witness has lied about a matter need not lead to the rejection of all of the evidence of the witness, but it may affect the degree of satisfaction of the existence or otherwise of a fact in issue to which the witness' evidence was directed.[222]
[222] Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 [272]; Lehrmann [138].
In the circumstances of this case, if I am unable to make a finding one way or another as to what actually happened, it is open to decide the issue on the basis that, in his action against Mr Nurse, Mr Donaldson, who bears the burden of proof, has failed to discharge his burden.[223]
[223] Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948, 955 - 956; Lehrmann [132].
Similarly, it is open to me to decide the issue on the basis that, in his action against Mr Donaldson, Mr Nurse, who bears the burden of proof, has failed to discharge his burden.
Neither man's claim against the other will succeed unless the whole of the evidence establishes a reasonable satisfaction on the preponderance of probabilities such as to sustain the relevant issue.[224]
[224] Axon v Axon (1937) 59 CLR 395, 403; Lehrmann [98].
When the law requires proof of any fact, I must feel an actual persuasion of its occurrence or existence before it can be found.[225]
[225] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361; Lehrmann [98].
When deciding the facts I bear in mind not just what the probabilities are on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.[226]
[226] Lehrmann [99] and the authorities cited therein.
Further, a mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.[227]
6.2 Credibility findings Mr Donaldson
[227] NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 [124], 655; Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 [51]; Lehrmann [100].
Mr Donaldson was not before the court as a person of prior good character. He has an extensive criminal history[228] for a smorgasbord of offences including drug offences (possession of heroin, methylamphetamine and cannabis), weapons offences, breaching court orders (Family Violence Restraining Orders, breaches of bail, breaches of community based orders), offences of violence (aggravated common assault), a plethora of traffic offences and offences of dishonesty (burglary, steal motor vehicle, fraud and stealing).
[228] Exhibit 3.
Mr Donaldson has over the course of the past 25 years been sentenced to numerous terms of immediate imprisonment as well as to suspended periods of imprisonment.
At the time that Mr Donaldson rode his motorcycle on 12 September 2020 he did not have a valid driver's licence and he had a blood reading positive to methylamphetamine and amphetamine.
As noted already, Mr Donaldson' evidence‑in‑chief did not begin candidly. That was hardly surprising given that he had a few skeletons in the cupboard. I venture to say that that cupboard was rather full.
Not only was he no stranger to the criminal justice system, to put it in neutral terms, he was at the time, as he ultimately admitted, a drug user and a drug dealer.
The term 'harm' is defined in s 3 of the CLA to mean 'harm of any kind, including', relevantly, personal injury which includes impairment of a person's physical or mental condition.
CLA s 5B(1) specifies the preconditions for establishing a breach of duty.[447] Specifically, CLA s 5B does not provide that a person is liable for harm caused by that person's fault in failing to take precautions against a risk of harm. Rather, it modifies the common law as to breach of duty of care by, among other provisions, articulating situations in which a person is not liable for harm.[448]
[447] Summit Rural (WA) Pty Ltd v Lenane Holdings Pty Ltd [2024] WASCA 122 [207] (Summit).
[448] CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117 [77] (judgment of the court) (CGU Insurance); Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [70] - [83] (Buss JA) (Department of Housing and Works).
The phrase 'in failing to take precautions against a risk of harm' refers to 'a failure by the person in question to take positive action against the possibility of the occurrence of harm of any kind including personal injury, damage to property and economic loss'.[449]
[449] Department of Housing and Works [78]; D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87 [403] - [405] (D'Souza).
The proper assessment of the alleged breach of duty depends on the correct identification of the relevant risk of harm because it is only then that an assessment can take place of its foreseeability, and the appropriate response of the reasonable person to that risk.[450] The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages.[451] The characterisation of the relevant risk should not obscure the true source of the potential injury.[452]
[450] Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; (2022) 273 CLR 454 (Tapp) citing Roads and Traffic Authority of NSW vDederer [2007] HCA 42; (2007) 234 CLR 330, 338, [18], [59] (Dederer).
[451] Perisher Blue Pty Ltd v Nair‑Smith (2015) 90 NSWLR 1, 22, [98] (Perisher Blue Pty Ltd); Tapp [106]; Summit [208].
[452] Perisher Blue Pty Ltd[99]; Tapp [106]; Summit [208].
Section 5B(1)(a) requires that the risk of harm was foreseeable. That is, it is a risk of which the person knew or ought to have known. That is not a statement of the probability or improbability of the occurrence of the harm but means that the risk of harm is not one that is far-fetched or fanciful.[453]
[453] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 [47] (Wyong Shire Council).
It is not necessary that the precise chain of events that have led to the harm be foreseeable. A risk of damage that is not far-fetched or fanciful in the sense that the probability of the damage occurring is extremely unlikely, may nevertheless be a foreseeable risk.[454] The common law test is undemanding.[455] The answer to this question involves a factual judgment turning on the facts of the case as they are proved in evidence.[456]
[454] Summit [218]; Wyong Shire Council (48); Hunter and New England Local Health District v McKenna [2014] HCA 44; (2014) 253 CLR 270 [30].
[455] See Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [213] (Callinan & Heydon JJ) (Vairy).
[456] AdeelsPalace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [40] (Adeels Palace); Allied PumpsPty Ltd v Hooker [2020] WASCA 72 [15], [122] (Allied Pumps).
Section 5B(1)(b) requires that the relevant 'risk of harm' be 'not insignificant'. That requirement in s 5B(1)(b) imposes a more demanding standard than the common law test of foreseeability, but not by very much.[457]
[457] See Shaw v Thomas [2010] NSWCA 169; Cox v Fellows [2013] NSWCA 206; Stenning v Sanig [2015] NSWCA 214; Erickson v Bagley [2015] VSCA 220; Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205.
CLA s 5B(2) sets out a number of factors which the court is to consider in determining whether, for the purposes of s 5B(1)(c) a reasonable person would have taken precautions against the relevant risk of harm.
Those factors include, amongst other relevant things, the probability that the harm would occur if care were not taken (s 5B(2)(a)), the likely seriousness of the harm (s 5B(2)(b)), the burden of taking precautions to avoid the risk of harm (s 5B(2)(c)) and the social utility of the activity that creates the risk of harm (s 5B(2)(d)).
CLA s 5B(2) makes plain that each of the four sub‑paragraphs of s 5B(2) (amongst other relevant things) must be considered.[458] This subsection restates the common law position as set out in Wyong Shire Council v Shirt.[459]
[458] See Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63.
[459] Wyong Shire Council (47) - (48) (Mason J); Waverley Council v Ferreira [2005] NSWCA 418 [45] (Ipp JA with whom Spigelman CJ & Tobias JA agreed); Allied Pumps [6] ‑ [10], [114]; D'Souza [401] ‑ [405] (Gething DCJ).
CLA s 5B requires identification of what precautions a reasonable person in the position of the defendant would have taken by way of response to a foreseeable, not insignificant, risk. This is to be determined objectively.[460]
[460] Dederer [70] (Gummow J); Allied Pumps [33] (Buss P & Vaughan JA), [116] (Murphy JA).
Although that judgment must be made after the event, it must seek to identify what the reasonable response would have been by a person looking forward at the prospect of the risk of injury.[461] The precautions which a reasonable person would have taken are to be assessed before the harm occurred, [462] therefore prospectively, and not with the wisdom of hindsight.[463]
[461] Vairy [126]; Adeels Palace [31].
[462] CGU Insurance [78].
[463] Vairy [105], [126] - [129]; Adeels Palace [31]; Summit [217]; Allied Pumps [12], [33], [120]; CGU Insurance [78].
The response to a foreseeable risk is to be judged by the criterion of reasonableness, not some more stringent requirement of prevention'.[464] The court must therefore look forward to identify what a reasonable person in the defendant's position would have done, not backward to identify what would have avoided the injury to the plaintiff.[465]
[464] Allied Pumps [12].
[465] Adeels Palace [31]; Vairy [124]; State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57] (Fahy).
In undertaking the inquiry in CLA s 5B(1)(c), and in addressing the non-exhaustive list of factors that must be taken into account in determining whether or not a reasonable person would have taken the relevant precautions against the risk of harm, the court is not enquiring as to the particular way in which the accident that occurred has come about. The precision of investigation into what happened to the plaintiff must not be permitted to obscure the nature of the assessment in respect of whether there was a breach of the duty of care which was the cause of the plaintiff's injuries.
The details as to how the accident occurred and how the plaintiff came to be injured may be of particular importance to a consideration of contributory negligence, but not to an examination as to whether there was a breach of a duty of care which was a cause of the plaintiff's injuries.[466]
15.2 Analysis - Mr Donaldson's action against Mr Nurse CIV 385 of 2022
[466] Vairy [124]; approved in Fahy [57].
In Mr Donaldson's action against Mr Nurse, the relevant risk of harm for the purposes of CLA s 5B is the risk of personal injury to persons in the position of Mr Donaldson as a fellow user of the road.
The risk of personal injury to a fellow road user by Mr Nurse failing to take reasonable care in the manner in which he rode his motorcycle is a risk that was foreseeable. It is a risk of which Mr Nurse knew or ought to have known. CLA s 5(1)(a) is established.
The risk of personal injury to a fellow road user, particularly a fellow motorcyclist, is a risk of harm that is not insignificant. It is not contentious that driving in an unsafe manner creates a risk of harm (personal injury) to other road users that is plainly not insignificant. CLA s 5(1)(b) is established.
In determining whether a reasonable person would have taken precautions against a risk of harm (personal injury to Mr Donaldson as a fellow road user),[467] the probability that the harm would occur if care were not taken is high, if not very high. The probability of harm to a motorcyclist coming off his or her motorcycle in the course of a collision or in taking evasive action to avoid colliding with another motorcyclist is very high: (CLA s 5B(2)(a)).
[467] CLA s 5B(2).
The likely seriousness of the personal injury to a motorcyclist by another motorcyclist failing to take the precautions against that risk of harm is very high: (CLA s 5B(2)(b)).
Other than wearing a helmet, there is no protection for a motorcyclist who comes off his motorcycle, either as a result of a collision with another motorcyclist, or as a result of the motorcycle becoming destabilised in seeking to avoid colliding with another motorcycle. The risk of very serious injuries to such a motorcyclist is plainly very high.
The precautions to avoid the risk of harm are easily identifiable and include any, or all, of the following:
(a)Ensuring a safe distance was maintained at all times between Mr Nurse's motorcycle and Mr Donaldson's motorcycle; and/or
(b)Ensuring that Mr Nurse did not overtake Mr Donaldson's motorcycle such that it then brought Mr Nurse's motorcycle directly in front of Mr Donaldson's motorcycle; and/or
(c)Ensuring that Mr Nurse only overtook, or passed, Mr Donaldson's motorcycle on a stretch of road that enabled him to remain at a safe distance from other users of the road; and/or
(d)Further, and specifically, in not overtaking Mr Donaldson at that geographical location, namely on the approach to the bend; and/or
(e)Further, and specifically, travelling and remaining in the right lane of the dual carriageway until it was safe to move into the left lane.
The burden of Mr Nurse taking precautions to avoid the risk of harm is nil: (CLA s5B(2)(c)).
Addressing the social utility of the activity that creates the risk of harm, when 'the activity' that creates the risk of harm is identified broadly in terms of riding a motorcycle, there is a social utility generally in riding a motorcycle as a mode of transport: (CLA s5(2)(d)).
However, if the proper formulation of the activity that created the risk of harm is specified to be the manner in which Mr Nurse rode his motorcycle on the approach to the bend (overtaking Mr Donaldson, overtaking Mr Donaldson at a geographical location which did not permit Mr Donaldson the opportunity of taking evasive action, overtaking Mr Donaldson such that there was insufficient distance, and time, to enable Mr Donaldson to avoid colliding with Mr Nurse's motorcycle) plainly there is no social utility of that activity. When the activity that creates the risk of harm is narrowed in that way,[468] plainly there is no social utility of that activity.
[468] See the formulation of the 'activity' that created the risk of harm in Summit [232] which favours the narrow formulation
I conclude on that analysis that in the circumstances, a reasonable person in Mr Nurse's position would have taken any of the precautions identified. CLA s 5B(1)(c) is established.
Even if I am to assess the social utility of the activity that creates the risk of harm in the broader sense, concluding that there is social utility in riding motorcycles, having regard to all of the factors in CLA s 5B(2) I would also conclude that a reasonable person in Mr Nurse's position would have taken any of the precautions I have identified. CLA s 5B(1)(c) is established on this analysis.
In conclusion, I am satisfied on the balance of probabilities that Mr Nurse breached the duty of care he owed to Mr Donaldson as a fellow road user.
15.3 Principles of law - Contributory negligence
I turn to consider the question of whether Mr Donaldson was contributorily negligent.
The principles governing contributory negligence are set out in CLA s 5K which provides:
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose -
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
The 'applicable principles' referred to in CLA s 5K(1) are those found in CLA s 5B.[469] By virtue of CLA s 5K the same standard of care applies to the liability of a defendant in negligence and to a defence that a plaintiff has been contributorily negligent.[470] Thus the standard of care is the same for contributory negligence as for negligence itself.[471]
[469] Adeels Palace [27]; Town of Port Hedland v Reece William Hodder by Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212 [371] (Town of Port Hedland).
[470] Town of Port Hedland [294].
[471] Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241 [15] - [18].
The making of a finding of contributory negligence involves a comparison of both the culpability, that is, of the degree of departure from the standard of care of the reasonable person, and the relevant importance of the acts in causing the damage, of the Parties. It is the 'whole conduct' of each Party in relation to the circumstances of the accident which must be subjected to comparative examination.[472]
[472] Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; Apostolic Church Australia Limited v Dixon[2018] WASCA 146 [70] (Apostolic Church).
The making of a finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his person.
What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty, however there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree.[473]
[473] Apostolic Church [71] citing Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1.
A plaintiff will be guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable and prudent person he would expose himself to risk of injury.[474]
[474] Commissioner for Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563; Sungravure Pty Ltd v Meani (1964) 110 CLR 24; Town of Port Hedland [48].
For the purpose of determining the appropriate standard the court must treat the person who has suffered harm as a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at that time.
The onus is on the defendant to prove contributory negligence. In Mr Donaldson's claim against Mr Nurse, the onus is on Mr Nurse to prove on the balance of probabilities that Mr Donaldson was contributorily negligent.
15.4 Analysis
I apply the standard of care of the plaintiff Mr Donaldson as being that of a reasonable person in his position: (CLA s 5K(2)(a)). I consider what Mr Donaldson knew, or ought to have known, at the relevant time, which I assess to be when riding along Alexander Drive southbound on the approach to the bend: (CLA s 5K(2)(b)).
I further apply the principles in CLA s 5B to the actions of Mr Donaldson and to the actions of a reasonable person in Mr Donaldson's position. Mr Donaldson is not liable for harm, here not contributorily negligent, caused by his fault in failing to take precautions against the risk of personal injury (the relevant risk of harm) unless the risk of that harm was foreseeable, that is, a risk of which Mr Donaldson knew or ought to have known, and it was a risk that was not insignificant. Further, that in the circumstances, a reasonable person in Mr Donaldson's position would have taken those precautions.
In the present case, there is no issue that the risk of harm to Mr Donaldson in a collision with another motorcyclist was foreseeable and not insignificant. There was a high probability of a very serious injury occurring if care were not taken. In that context, the critical question in assessing contributory negligence is what precautions a reasonable person in the position of Mr Donaldson would have taken, which he failed to take.
I need to refer to three issues in assessing Mr Nurse's claim that Mr Donaldson was contributorily negligent. Firstly, the issue of the illicit drugs in Mr Donaldson's blood. Secondly, the issue of speed, and thirdly, the issue of Mr Donaldson's manner of driving prior to the collision.
15.4.1 The illicit drugs
In respect of the first issue, as noted earlier in these reasons, Mr Nurse did not plead his case on the basis that Mr Donaldson was negligent or contributorily negligent by reason of having illicit drugs in his system. Further, (or as a result), the trial on behalf of Mr Nurse was not subsequently conducted on the basis that Mr Donaldson was contributorily negligent by reason of the illicit drugs in his system. It is necessary, however, to make the following observations.
Plainly, it cuts across the grain of reasonableness for a motorcyclist to ride his motorcycle with an illicit drug in his system. A reasonable person paying proper regard for his own safety, and the safety of their fellow road users, would not ride his motorcycle with the presence of a prescribed illicit drug in his system.
However, I must bring the analysis back to the test in CLA s 5B(1). Mr Donaldson is not (contributorily) liable for harm caused by that person's fault, (emphasis added) that is, by Mr Donaldson's fault, in failing to take precautions (failing to ensure that he did not ride his motorcycle with the presence of illicit drugs in his system) against the risk of personal injury.
I am not to assume a causal nexus between an action (riding with a prescribed illicit drug), or inaction (a failure to ensure that he did not ride with a prescribed illicit drug), and a subsequent event (a collision) and subsequent harm (personal injury). There must be evidence from which I can properly make such a finding.
As stated earlier in these reasons, there was no evidence led at trial as to any nexus between the illicit drugs in Mr Donladson's system and any subsequent impairment to his capacity to rise his motorcycle safely.
There was no evidence led at trial that the illicit drugs played any role in the manner in which Mr Donaldson subsequently rode his motorcycle. There was no evidence that the illicit drugs in fact impaired Mr Donaldson's capacity to ride his motorcycle safely, or were likely to impair a person in Mr Donaldson's position to ride his motorcycle safely.
I have concluded in the absence of any such evidence that I am not persuaded on the balance of probabilities that the presence of illicit drugs in Mr Donaldson's system was in any way causative of the collision between the two motorcycles.
Bringing the analysis back to the test in s 5B(1), there is no evidence that Mr Donaldson's injuries (the harm) were caused by his fault in failing to take precautions against a risk of personal injury in ensuring that he did not ride with a prescribed illicit drug in his system.
It was clearly a risky thing for Mr Donaldson to have ridden his motorcycle in circumstances where he had illicit drugs in his system. However, in the absence of any evidence that Mr Donaldson's manner of driving was impaired or affected by those illicit drugs, Mr Nurse has not established on the balance of probabilities that the presence of the illicit drugs in fact had any effect on Mr Donaldson's capacity to exercise reasonable care and skill in the riding of his motorcycle safely.
When the test in CLA s 5B(1) is applied, Mr Nurse has failed to establish on the balance of probabilities that Mr Donaldson was contributorily negligent by failing to take the precaution of not riding with an illicit drug in his system.
This issue falls away.
15.4.2 Excessive speed
I turn to address the issue of Mr Donaldson's speed. Mr Nurse pleads that Mr Donaldson was negligent (or contributorily negligent) in riding at a speed that was excessive in the circumstances.[475]
[475] Mr Nurse's Defence, par 4(c)
I have found that Mr Donaldson was travelling at a likely speed of 60 km per hour on the approach to the bend. Consistent with the way in which the trial was conducted, speed was not a factor pressed in this trial. The expert evidence did not support a finding that prior to colliding with Mr Nurse's motorcycle, Mr Donaldson was then travelling at a speed in excess of 60 km per hour.
In assessing whether Mr Donaldson was contributorily negligent by travelling at a speed that was excessive in the circumstances, Mr Nurse has failed to establish that travelling at a speed of 60 km per hour was not a reasonable speed at which to travel, including on the approach to the bend. That was the speed limit on the approach to the bend. There was no evidence led at trial that travelling at 60 km per hour was an unsafe speed at which to travel on the approach to the bend.
There is no evidence from which I can infer that Mr Donaldson's speed was in any way causative of the collision. This issue falls away.
15.4.3 Mr Donaldson's manner of driving on the approach to the bend
I turn to the third issue, which I refer to broadly as the manner of Mr Donaldson's driving on the approach to the bend.
The pleaded position of Mr Nurse is that Mr Donaldson was negligent (or contributorily negligent) in failing to adequately or at all keep any or any proper lookout; in failing to ride with any or any proper control; in permitting his front wheel to impact the rear wheel of Mr Nurse's motorcycle; in failing to adequately or at all brake in time to avoid the collision and in failing to adequately or at all steer or control his motorcycle so as to avoid the collision.[476]
[476] Mr Nurse's Defence, pars 4(a), (b), (d) and (e).
Consistent with my findings of fact Mr Nurse has not established on the balance of probabilities that any aspect to Mr Donaldson's driving was inconsistent with the actions of a reasonable motorcycle rider paying due care and attention for his safety and for the safety of his fellow road users.
Consistent with my findings of fact Mr Nurse has not established on the balance of probabilities that he and Mr Donaldson were travelling southbound together, such that Mr Donaldson reasonably ought to have known or anticipated that Mr Nurse might overtake him or ride his motorcycle within close proximity to Mr Donaldson's motorcycle on the approach to the bend.
Consistent with those findings of fact, Mr Donaldson did not then assume a risk of riding with someone who he knew had just consumed an illicit drug.
In the framework of contributory negligence, Mr Nurse has not established that a reasonable person in Mr Donaldson's position paying due care and attention for his own safety would not in those circumstances get on his motorcycle and travel.
Consistent with those findings, Mr Donaldson was entitled to ride his motorcycle on the approach to the bend facing forward in the direction of his travel.
Reasonableness required Mr Donaldson to pay due care and attention to where he was going, and to the circumstances around him. I am satisfied that he did that.
Reasonableness on the approach to the bend required Mr Donaldson to take heed of the bend in the road, the arrow sign and guardrail. I am satisfied that he did that.
Reasonableness did not require Mr Donaldson to look behind him to see if anyone was then travelling close to him. To do so on the approach to the bend would not, in my view, be a reasonable step for Mr Donaldson to take, exercising due care and attention to his own safety.
I am satisfied on the balance of probabilities that the collision between the two motorcycles was solely due to the manner in which Mr Nurse rode his motorcycle on the approach to the bend.
Specifically, that Mr Nurse overtook Mr Donaldson from his right, that he did so without warning with the effect that Mr Nurse left insufficient distance between his rear wheel and Mr Donaldson's front wheel to avoid the two motorcycles colliding. Further, that Mr Nurse braked as he passed across Mr Donaldson's line of travel on the approach to the bend. The combination of Mr Nurse then travelling directly in front of Mr Donaldson's line of travel, with the geographical layout of the approach to the bend, left Mr Donaldson hemmed in, with no reasonable opportunity to take evasive action to avoid his motorcycle colliding with Mr Nurse's motorcycle.
Applying the language of CLA s 5B(1), Mr Nurse has failed to establish that Mr Donaldson is liable for harm caused by Mr Donaldson's fault in failing to take precautions against a risk of that harm (personal injury) in any of the ways pleaded in Mr Nurse's Defence as outlined.[477]
[477] Mr Nurse's Defence, pars 4(a), (b), (d) or (e)
It follows that Mr Nurse has failed to establish that Mr Donaldson was contributorily negligent.
15.5 Principles of Law - Causation
CLA s 5C provides that a determination that the fault of a person (the tortfeasor) caused particular harm comprises two elements. Firstly, that the fault was a necessary condition of the occurrence of the harm (factual causation) and secondly, that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
The common law of negligence requires determination of causation for the purposes of attributing legal responsibility and that determination inevitably involves two questions. Firstly, a question of historical fact as to how particular harm occurred and second a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person.[478] Those two questions, one factual and one normative, are reflected in the two distinct elements of causation in CLA s 5C(1)(a) and (b).[479]
[478] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375[11] (Wallace v Kam); Summit [165].
[479] Summit [9] - [10].
A determination in accordance with CLA s 5C(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.[480]
[480] Wallace v Kam [16].
The onus is on Mr Donaldson in his claim against Mr Nurse to prove on the balance of probabilities that but for Mr Nurse's negligence, the harm (personal injury) would not have occurred.
15.6 Analysis
Mr Donaldson has proved on the balance of probabilities that but for Mr Nurse's manner of riding his motorcycle on the approach to the bend, the collision between the two motorcycles would not have occurred. Specifically, I have found that the cause of Mr Donaldson's front wheel impacting with Mr Nurse's rear wheel was the result of Mr Nurse:
(a)overtaking Mr Donaldson without warning;
(b)overtaking Mr Donaldson when it was not was safe to do so given the bend in the road;
(c)overtaking Mr Donaldson such that Mr Nurse was then directly in front of Mr Donaldson's line of travel; and
(d)overtaking Mr Donaldson such that there was insufficient distance between the two motorcycles, and insufficient time, to reasonably allow Mr Donaldson to take evasive action to avoid his front wheel colliding with Mr Nurse's rear wheel.
I am satisfied that the collision between the two motorcycles was a destabilising event, causing both men to lose control of their motorcycles, each capsizing and then sliding into the barrier with each man dislodged from their motorcycle sustaining injury.
The collision between the two motorcycles was the catalyst for Mr Donaldson's motorcycle to destabilise and capsize, leading to Mr Donaldson being thrown over the barrier and leading to him suffering significant injury.
There was no evidence that as an experienced motorcycle rider, absent Mr Nurse's negligent manner of riding, Mr Donaldson could not have, and would not have, safely negotiated the bend in the road travelling as he then was, at the speed limit or even below the speed limit. Mr Donaldson had seen the bend and had committed to riding the bend, when Mr Nurse cut across his line of travel.
I am satisfied on the balance of probabilities that absent Mr Nurse's fault, the collision between the two motorcycles would not have occurred. The collision was caused by Mr Nurse's negligent manner of riding his motorcycle on the approach to the bend.
Factual causation is established.
There is no reason why it is not appropriate for the scope of Mr Nurse's liability to extend to the harm so caused (Mr Donaldson's injuries).
15.7 Conclusion CIV 385 of 2022
In conclusion Mr Donaldson has established that Mr Nurse breached the duty of care that he owed to Mr Donaldson and that the breach caused the collision between the two motorcycles and the resultant injuries to Mr Donaldson.
Mr Nurse has failed to establish on the balance of probabilities that Mr Donaldson was contributorily negligent.
PART 16: MR NURSE'S CLAIM - CIV 1904 OF 2022 - ANALYSIS OF THE PLEADINGS
I turn now to consider Mr Nurse's claim against Mr Donaldson.
16.1 Particular (a) Failed to adequately or at all keep any or any proper lookout
Consistent with my findings of fact in Parts 7 and 13, Mr Donaldson was not travelling together with Mr Nurse on the approach to the bend, or at all.
Mr Donaldson was travelling within the speed limit, there was not much traffic on the road and Mr Donaldson was travelling on the approach to the bend not reasonably expecting or anticipating that Mr Nurse would then approach, and then overtake, him.
Mr Donaldson was paying due care and attention, or keeping a proper lookout, on the approach to the bend, noting the bend in the road and committing to riding the bend.
Consistent with my findings of fact Mr Nurse overtook Mr Donaldson suddenly and without warning and then cut across Mr Donaldson's line of travel on the approach to the bend.
There is no evidence that Mr Donaldson was not keeping any, or any proper, lookout.
Particular (a) is not made out.
16.2 Particular (b) Failed to ride with any or any proper control in that he permitted his front wheel to impact the rear wheel of (Mr Nurse's) motorcycle
Consistent with my findings of fact in Parts 7 and 13, the collision between the two motorcycles occurred as a result of Mr Nurse overtaking Mr Donaldson on the approach to the bend, overtaking him without warning, cutting across Mr Donaldson's line of travel and braking leaving insufficient distance between the two motorcycles to reasonably enable Mr Donaldson to avoid his front wheel from colliding with Mr Nurse's rear wheel.
Further, that Mr Nurse overtook Mr Donaldson at a geographical location on the road where Mr Donaldson, when unexpectedly confronted by Mr Nurse's motorcycle in front of his, was unable to take evasive action to avoid the collision.
Mr Donaldson could not reasonably in those circumstances avoid his front wheel impacting with Mr Nurse's rear wheel.
Consistent with my findings of fact Mr Donaldson was not speeding, nor is there any evidence that prior to Mr Nurse overtaking him, Mr Donaldson was not riding his motorcycle with proper control.
The collision between the two motorcycles was entirely of Mr Nurse's making.
Particular (b) is not established.
16.3 Particular (c) Rode at a speed which was excessive in the circumstances
Consistent with my findings of fact on speed in Part 13, Mr Donaldson was not riding at a speed in excess of 60 km per hour prior to the collision.
The speed limit on the approach to the bend was 60 km per hour.
There was no evidence led at trial that a reasonable motorcyclist taking proper care for his safety and that of fellow road users would travel at a speed of less than 60 km per hour.
Consistent with the way that the trial was conducted on the issue of speed, particular (c) was not pressed.
Particular (c) is not established.
16.4 Particular (d) Failed to adequately or at all brake in time to avoid the collision
Consistent with my findings of fact in Part 7, Part 13 and my observations in respect of Particular (b), Mr Nurse's actions in overtaking Mr Donaldson left insufficient distance and time for Mr Donaldson to avoid colliding with Mr Nurse's motorcycle.
I have been unable to make a finding as to whether Mr Donaldson did or did not brake.
I am satisfied on the balance of probabilities that Mr Donaldson's failure to brake either adequately or at all, was not the reason that his front wheel impacted with Mr Nurse's rear wheel.
As noted earlier, the reason Mr Donaldson's front wheel impacted with Mr Nurse's rear wheel was entirely due to the unsafe manner in which Mr Nurse then overtook, and cut across, Mr Donaldson's line of travel leaving insufficient distance and time to enable Mr Donaldson to avoid colliding with Mr Nurse.
Particular (d) is not established.
16.5 Particular (e) Failed to adequately or at all steer to control the vehicle so as to avoid the collision
I refer to my findings above and my reasoning in respect of Particular (b) which apply to an assessment of Particular (e).
Mr Nurse has failed to establish on the balance of probabilities that Mr Donaldson failed to adequately or at all steer to control the vehicle. As noted already, the cause of the collision was entirely due to the unsafe manner in which Mr Nurse rode his motorcycle on the approach to the bend as I have outlined.
Particular (e) is not established.
PART 17: DETERMINATION OF LIABILITY CIV 1904 OF 2022
I apply the same principles of law in respect of duty of care and breach to Mr Nurse's claim against Mr Donaldson as I have set out in Part 15.
In Mr Nurse's action against Mr Donaldson, the relevant risk of harm for the purposes of CLA s 5B is the risk of personal injury to persons in the position of Mr Nurse as a fellow user of the road.
The precautions that a reasonable person ('the precautions') would have taken in the circumstances are easily identifiable. I have found that Mr Donaldson was not riding together with, or alongside, Mr Nurse. Further, that Mr Donaldson did not reasonably expect or anticipate that Mr Nurse would approach him (at all), nor that Mr Nurse would overtake him as he did on the approach to the bend.
In those circumstances the precautions that a reasonable person in Mr Donaldson's position would have taken against a risk of harm are simply that he ride paying due care and attention to other road users, that he not exceed the speed limit, that he look ahead and be cognisant of the bend in the road and that he not change lanes suddenly or unexpectedly.
Given the findings of fact I have made in Parts 7 and 13, I am satisfied that Mr Donaldson did all of those things. The manner in which Mr Donaldson rode his motorcycle was consistent with a reasonable person in his position exercising due care for his safety and those around him.
In addressing the criteria in CLA s 5B Mr Nurse has not established on the balance of probabilities that Mr Donaldson breached the duty of care he owed Mr Nurse.
Mr Nurse's claim against Mr Donaldson fails.
PART 18: CONCLUSIONS AND FINAL ORDERS
Mr Donaldson's claim against Mr Nurse succeeds (CIV 385 of 2022).
Mr Nurse's claim against Mr Donaldson fails (CIV 1904 of 2022).
The matter can be programmed for an assessment of damages.
I will hear the Parties as to costs.
ANNEXURE 1
Exhibit 10.1
Exhibit 10.2
ANNEXURE 2
Photograph 1[481]
[481] Photograph 1, Book of Documents, page 74.
Photograph 2[482]
[482] Photograph 2, Book of Documents, page 202.
ANNEXURE 3
Photograph 3[483]
[483] Photograph 3, Exhibit 4, Figure 12 and annotated Photograph 3.
Annotated Photograph 3
ANNEXURE 4
Photograph 4[484]
[484] Photograph 4, Exhibit 4, Figure 1.
ANNEXURE 5
Photograph 5[485]
[485] Photograph 5, Exhibit 4, Figure 11.
ANNEXURE 6[486]
[486] Exhibit 2.
ANNEXURE 7
Photograph 6[487]
[487] Photograph 6, Exhibit 4, Figure 2.
ANNEXURE 8
Photograph 7[488]
[488] Photograph 7, Exhibit 4, Figure 5.
Photograph 8[489]
[489] Photograph 8, Exhibit 4, Figure 6.
ANNEXURE 9
Photograph 9[490]
[490] Photograph 9, Exhibit 4, Figure 10.
ANNEXURE 10
Photograph 10[491]
[491] Photograph 10, Exhibit 4, Figure 7.
Photograph 11[492]
[492] Photograph 11, Exhibit 4, Figure 8.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GS
Associate
22 OCTOBER 2025
[335] Outlined in Exhibit 4, par 8.6.
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