Egan v Mangarelli
[2013] NSWCA 413
•05 December 2013
Court of Appeal
New South Wales
Case Title: Egan v Mangarelli Medium Neutral Citation: [2013] NSWCA 413 Hearing Date(s): 2 August 2013 Decision Date: 05 December 2013 Before: Barrett JA at [1];
Ward JA at [2];
Tobias AJA at [3].Decision: 1. Appeal dismissed.
2. The appellant to pay the respondents' costs of the appeal.
3. Cross-appeal dismissed.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - breach of duty of care - motor vehicle accident - the appellant was travelling on a bicycle and went under a bus - whether the driver breached his duty of care by failing to keep a look-out - Manley v Alexander [2005] HCA 79 considered - whether the driver was paying "reasonable attention" to what was happening on or near the roadway - held that the driver did not breach the duty of care
TORTS - negligence - contributory negligence - whether the trial judge properly compared the degree of the parties culpability and the relative importance of each party's acts in finding the appellant's contributory negligence to be 70 per cent - Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 applied - no error in finding appellant's contributory negligence to be 70 per cent
DAMAGES - torts - negligence - personal injury - whether trial judge erred in allowing cost of certain prosthesis when the appellant was unlikely to use the prosthesis to fullest extent - whether trial judge erred in allowing certain amounts for housing modifications - whether trial judge erred in allowing amounts for past domestic care - whether primary judge failed to discount amount awarded for future domestic care when the appellant was a smokerLegislation Cited: Motor Accident Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Anikin v Sierra [2004] HCA 64; (2004) 211 ALR 621; (2004) 79 ALJR 452
Bradshaw v McEwans Pty Limited [1951] HCA 480; (1951) 217 ALR 1
Draca v Silva [2012] NSWCA 312
Egan v Mangarelli & Ors [2012] NSWSC 867
Egan v Mangarelli & Ors (No 2) [2012] NSWSC 1226
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552
Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228; (2005) 80 ALJR 413
Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Scott v Williamson [2013] NSWCA 124; (2013) 63 MVR 396
Whitney v Dream Developments Pty Limited [2013] NSWCA 188Category: Principal judgment Parties: Mitchell Joseph William Egan (Appellant/Cross Respondent)
Johnny Carmine Mangarelli (First Respondent/First Cross Appellant)
Westbus Region 3 Pty Ltd (ACN 054 096 892) (Second Respondent/Second Cross Appellant)Representation - Counsel: Counsel:
B M J Toomey QC with H J Marshall SC & P J Frame (Appellant/Cross Respondent)
D E Grieve QC with J Gracie (Respondents/Cross Appellants)- Solicitors: Solicitors:
Slater & Gordon (Appellant/ Cross Respondent)
Vardanega Roberts (Respondents/Cross Appellants)File Number(s): CA 2012/271017 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: Hoeben J - Citation: Egan v Mangarelli & Ors [2012] NSWSC 867Egan v Mangarelli & Ors (No 2) [2012] NSWSC 1226 - Court File Number(s): SC 2010/126606
JUDGMENT
BARRETT JA: I have had the advantage of reading in draft the judgment that has been prepared by Tobias AJA. I agree, for the reasons his Honour states, that the orders he proposes should be made. I would particularly endorse his Honour's conclusion that, having regard to the evidence, it could not be found that the first respondent, when putting the bus into motion after taking the passenger on board, was derelict in his duty to give reasonable attention to what was happening on and near the roadway because he did not anticipate that a bicycle on the part of the pathway obscured by the fence might suddenly emerge at speed into the bus's path.
WARD JA: I agree, for the reasons set out by Tobias AJA, that the primary judge did not err in concluding that the appellant had not proved his case and therefore that the appeal should be dismissed with costs. I also agree with the conclusions reached by Tobias AJA as to the grounds of cross-appeal, had the appeal succeeded, for the reasons his Honour has given. I agree with the orders proposed by Tobias AJA.
TOBIAS AJA: On 1 July 2007 the appellant, who was then aged 16, was seriously injured when the bicycle he was riding allegedly collided with a bus in Bunker Parade, Bonnyrigg, driven by the first respondent and owned and operated by the second respondent. The appellant instituted proceedings against the respondents seeking damages on the basis that the first respondent, and through him the second respondent, was negligent in failing to keep a proper lookout and to apply the brakes of the bus in sufficient time to avoid colliding with the appellant and/or his bicycle.
Liability and damages were both in issue. Following 13 hearing days, Hoeben J (as he then was) found in favour of the respondent on the issue of liability: Egan v Mangarelli & Ors [2012] NSWSC 867. In particular, his Honour found that the appellant had failed to establish that the first respondent was not keeping a proper lookout and that he was in breach of the duty which he owed the appellant by not applying the emergency braking system of the bus. His Honour therefore entered judgement in favour of the respondents.
Notwithstanding his Honour's finding on liability, he proceeded to consider the issue of contributory negligence as well as damages. He assessed the appellant's contributory negligence at 70 per cent. He assessed the appellant's damages in the sum of $6,795,055 plus funds management, which was later agreed in the sum of $340,402, thus resulting in total damages in the sum of $7,135,457 subject to the reduction of that amount by 70 per cent to reflect the appellant's contributory negligence.
An issue also arose with respect to the costs of the proceedings as a consequence of an Offer of Compromise purportedly made pursuant to UCPR r 20.26. In a separate judgment of 17 October 2012 his Honour declined to make a special costs order in favour of the respondents and confirmed his order made in the main proceedings that the appellant pay the respondents' costs of those proceedings: Egan v Mangarelli & Ors (No 2) [2012] NSWSC 1226.
The appellant appeals to this Court with respect to the issues of liability and contributory negligence. The respondents have cross-appealed with respect to his Honour's finding that the appellant's evidence as to the manner in which the accident occurred was not deliberately fabricated. They also challenged a number of aspects of his Honour's findings with respect to damages. The final ground of cross-appeal is a challenge to his Honour's findings in his costs judgment. That ground was abandoned as a consequence of the decision of this Court in Whitney v Dream Developments Pty Limited [2013] NSWCA 188.
The Background Facts
Bunker Parade at the relevant location is generally aligned north-south but with a slight bend to the left travelling south. The bus the first respondent was driving was travelling in a southerly direction. It came to a stop to pick up a passenger at a bus stop marked by a cement post painted yellow and approximately one metre high and located approximately five metres north of the northern edge of a three metre wide concrete ramp (the ramp). The eastern section of an unnamed pathway (the pathway) is aligned on an east-west axis and intersects with Bunker Parade at the ramp. The pathway is approximately two metres wide until it crosses the footpath on the eastern side of Bunker Parade where it connects to the ramp.
A person travelling down the pathway in a westerly direction and intending to cross Bunker Parade would proceed down the ramp to where it meets the roadway and then after crossing the road, would proceed along a continuation of the pathway in a westerly direction on the other side. The ramp allows wheeled vehicles to access the roadway without having to negotiate the cement kerb. A footpath runs along both sides of Bunker Parade and there is a sealed area at the bus stop where the first respondent stopped his bus prior to the accident.
A wooden fence 1.8 metres high is located on the north side of the pathway which effectively limits the view of a person proceeding west on the pathway towards any bus located at the bus stop until a point where the fence turns to the north. It also limits the view of the bus driver at the bus stop towards such a person until he or she clears the fence at that point. The distance along the pathway from the fence line where it turns north to the eastern kerb of Bunker Parade at the ramp is 6.7 metres. The width of Bunker Parade at that point is 11 metres.
The bus was fitted with a CCTV camera located at the front of the vehicle above the head of the driver. The bus itself was yellow green in colour with a wide windscreen. Its wheelbase was approximately 6.4 metres with a width of approximately 2.5 metres and an overall length of 12.5 metres. The front overhang to the commencement of the front wheels was 2.6 metres.
The CCTV footage, to which further reference will be made below, established that the bus came to a stop some short distance (agreed by the experts to be 0.8 metres) to the north of the bus stop post. It remained stationary for approximately 17 seconds whilst a passenger boarded.
Shortly before the accident the appellant and his friend, William Aslett (Aslett) who was then aged 14, decided to ride their bicycles to Bonnyrigg Plaza in order to get some lunch. To achieve that objective they rode along the pathway which originated at a park some hundreds of metres to the east of Bunker Parade. The appellant's bicycle was described in the Police COPS report as being a racing bicycle fitted with a mountain bike wheel and tyre to the front which was of smaller diameter than that for which the bicycle was designed as a consequence whereof the front brakes did not make contact with any part of the front wheel. The rear brakes were functioning correctly although the rear tyre was completely bald. The bicycle had a red frame.
The appellant's bicycle did not sustain any substantial damage in the incident such as the distortion of its frame or wheel rims as might be expected if it collided with the bus with any force or if it had been driven over by the tyres of the bus. In fact the expert qualified by the respondents, and who was the only expert to examine the bicycle itself, found that it had sustained no damage as a consequence of the incident. There were some minor gouge marks on its handle bars, but was unknown whether those marks were as a result of the incident or were pre-existing. The expert qualified by the appellant, who had only seen photographs of the bicycle, agreed that no damage had been caused to the bicycle although he also gave evidence that he would not have expected any damage to result from what he considered to be a low speed impact.
The appellant sustained a catastrophic injury to his right leg which required amputation when it was run over by the front nearside tyre of the bus at a location, the experts agreed, approximately seven metres south of the southern edge of the ramp. In this respect, the appellant's injuries were due to him falling or rolling under the front overhang of the bus with his head and torso facing generally in a westerly direction and his right leg in an easterly direction which resulted in it being squashed by the bus's tyre. He also sustained crush injuries to his torso consistent with him having come into contact with the underneath of the bus.
The experts agreed that the bus began to travel over the appellant some time before his leg was run over. At the point where the tyre ran over the appellant's leg the front of the bus would have been located some 9.6 metres south of the southern edge of the ramp due to the 2.6 metre overhang between the front of the bus and the nearside front wheel.
The experts disagreed as to the point when the appellant first came into contact with the bus. According to Mr Grant Johnston, the expert civil engineer with expertise in reconstructing motor vehicle accidents, qualified by the appellant, the appellant first came into contact with the bus approximately 1 to 3 metres south of where he entered upon the roadway from the ramp. According to Mr William Bailey, the mechanical engineer with the same expertise as Mr Johnston qualified by the respondents, the first contact between the appellant and the underside of the bus was likely to have occurred somewhere between 1 to 3 metres north of the point where his leg was run over. That point was said to be between 5.4 and 7.4 metres south of the prolongation of the pathway (which I assume to refer to the middle of the ramp).
In this context the experts disagreed as to whether the appellant was actually struck by, or collided with, the bus. Mr Johnston's preferred theory was that he collided with the nearside front corner of the bus. That of Mr Bailey took the view that in order to avoid colliding with the bus, the appellant turned south from the pathway or ramp, travelled somewhere between 5.4 and 7.4 metres along the grass verge bordering the concrete kerb to the roadway and then, having lost control of his bicycle, fell from it onto the roadway and tumbled or rolled for a distance in a southerly direction before the front overhang of the bus travelled over the top of him thereby causing him to come into contact with its front underside.
Following the accident the appellant's bicycle ended up approximately 9 metres to the south of the southern edge of the ramp. However, as his Honour acknowledged at [8] of his reasons, this might not have been precisely where the bicycle was positioned following the accident as it had been moved by the ambulance officers in order to enable access to be gained to the appellant. However, the experts agreed that the position of the bicycle as shown in the police photographs and as transposed onto an agreed scale plan of the scene, was generally in accord with where they would have expected the bicycle to have came to rest. That location was slightly to the south of the point where the appellant's leg was run over.
The experts further agreed on the following facts:
·the rider of a bicycle with the same characteristics as that of the appellant proceeding in a westerly direction along the pathway could begin to obtain a clear view of the front nearside corner of the stationary bus, being located approximately 0.8 metres north of the southern edge of the concrete bus stop, when the rider was approximately 9 metres from the eastern kerb of Bunker Parade and a view of the full front of the bus when the rider was approximately 8 metres from that kerb assuming he or she was positioned reasonably central within the pathway;
·based on the CCTV footage, after the bus had been in motion for 3.6 seconds, its front was located approximately 0.8 metres north of the northern edge of the ramp and at 4.2 seconds, its front was located approximately 0.8 metres south of the northern edge of the ramp. Accordingly, if the appellant had entered the carriage way at the centre point of the ramp where it meets the roadway, less than 4.2 seconds after the bus had commenced to move, the front of the bus could not have reached him and he would not have been run over at that time;
·it was highly probable that the appellant had separated from the bicycle before he commenced to roll under the bus;
·to have reached the location where his leg was run over, the appellant must have travelled with a southerly component of velocity. However, the experts had different opinions regarding potential scenarios as outlined in their respective reports that could have resulted from the limited physical evidence available;
·the distance from the point where the bus was stationary at the bus stop to the prolongation (the middle) of the ramp was approximately 6.7 metres;
·the distance from the bus at its start point to the northern edge of the ramp was approximately 5 metres; and
·there was no damage to the bicycle as a consequence of any contact between it and the bus.
The Pleadings
The appellant's case as pleaded in his Amended Statement of Claim filed on 30 November 2011, the seventh day of the hearing, relevantly alleged the following:
7. On 1 July 2007 the plaintiff rode a certain bicycle west upon an unnamed pathway that transected Bunker Parade, Bonnyrigg in the State of New South Wales.
8. The plaintiff brought the bicycle to a stop at the eastern kerb of the said Bunker Parade.
9. At the same time the second defendant's bus, registration No MO 8337, was stopped at the bus stop a few metres to the north of the plaintiff's position.
10. The plaintiff, then straddling his bike, commenced to walk the bike in a westerly direction with the intention of crossing Bunker Parade and continuing upon the unnamed pathway.
11. At or shortly before the time that the plaintiff walked his bike onto the carriageway of Bunker Parade the first defendant suddenly and without warning pulled out from the kerb and proceeded south upon Bunker Parade and thereby brought his bus into collision with the plaintiff and/or the plaintiff's bicycle, knocking the plaintiff to the road surface and subsequently running over the plaintiff.
11A Alternatively, the plaintiff moved his bicycle from the pathway and footpath area onto the road surface at Bunker Parade after the first defendant had commenced to drive the said bus south from the bus stop, whereupon the said bus collided with the plaintiff and/or the plaintiffs bicycle, knocking him to the road surface and subsequently running over the plaintiff.
11B At all relevant times pleaded in paragraphs 8, 9, 10, 11 and 11A the plaintiff was clearly visible to the first defendant.
The Appellant's Case at Trial Based on the Lay Evidence
The appellant's evidence at trial was consistent with the matters alleged in paragraph 7 to 11 (inclusive) of the Amended Statement of Claim. Relevantly, the appellant was adamant that first, when he stopped at the kerb straddling his bicycle, the bus was stationary; secondly, he thought that he could cross Bunker Parade whilst the bus was stationary; thirdly, he started to cross the road walking his bicycle with his feet straddling the frame seeking to poke his head around to ensure that there was no other vehicles coming on the outside of the bus when he heard a roar from its engine. The bus then took off and collided with him whereupon he fell under its front. He denied that when he first saw the bus as he emerged past the fence it was moving.
Aslett also gave evidence. According to the COPS report he had told the police that he preceded the appellant down the pathway and as he came to Bunker Parade he slowed right down as he saw the bus stopped at the bus stop with one person boarding. He looked behind him and saw that the appellant was still coming a few metres behind. As the bus was still stationary he decided to ride across. After he had peddled about three revolutions across to the other side of Bunker Parade he heard a thumping noise. He turned around and saw the appellant under the bus rolling as the bus moved forward until it came to a stop.
In his statement tendered in evidence as Exhibit F and dated 19 August 2011, Aslett essentially gave the same evidence as he had given to the police. He was absolutely sure the bus was stationary when he himself slowed down and that he had glanced around and could see that the appellant was a few metres behind him and had decided to proceed to cross the road in front of the bus and it was still stationary. As he reached the footpath on the other side of Bunker Parade be heard the engine of the bus as it took off and shortly after he heard a loud thump. He looked back and saw the bus still moving and the driver looking at the offside rear vision mirror. He maintained his denial that the bus was moving when he rode in front of it.
The primary judge noted (at [13]) that Aslett was not able to provide much evidence as to how the accident occurred since he did not see it. However, his Honour concluded that his statement in Exhibit F was unreliable to the extent to which it asserted that before he commenced crossing Bunker Parade he observed the appellant to be "a few metres behind me".
As noted by his Honour at [18], an important witness in the appellant's case was a Ms Luch^t. Although the accident occurred on 1 July 2007 Ms Ms Luch^t did not give her statement to the police until 8 December 2007. The primary judge relevantly set out her evidence to the police as follows:
At 1pm Saturday 8 December 2007 ... police speak with his aunt Tracy Egan ... Whilst speaking with Ms Egan she nominated another witness, Diana Luch^t, as having seen the collision. Egan escorted police to the address where police spoke with Luch^t.
Luch^t stated "I'd been to the plaza. I was coming back through the alleyway towards the bus stop. One kid went across. The second kid was crossing but not riding. He was sort of straddling the bike. I looked at the driver. He was looking in his rear vision mirror the whole time. The bus started, moved off and went straight over the boy. I don't remember anything else.
Ms Luch^t also provided a statement to the appellant's solicitors on 1 February 2008 which became Exhibit B. She observed the appellant and Aslett riding towards her on the other side of Bunker Parade. She stated that Aslett rode his bicycle from the pathway to in front of the bus and across the road. The appellant was close behind Aslett but he actually stopped on the eastern side of Bunker Parade at the kerb. He was positioned a few metres in front of the bus. The bus was still stationary when the appellant began to walk across Bunker Parade with the bicycle between his legs. He had nearly reached the centre of the bus when she observed the driver look into his side mirror and pull out from the kerb. At no stage did the driver look forward and to the front of the bus before doing so. The front of the bus then knocked the appellant down to the road. She estimated that there was 1.5 to 2 metres of space between the appellant and the front of the bus.
Ms Luch^t made a further statement on 28 September 2011 which became Exhibit C. Although she could not remember with any precision how far the appellant was away from the front of the bus when it started moving, she estimated that it was 1.5 to 2 metres. As the appellant walked his bicycle onto the road the bus took off. She looked at the driver to see what he was doing and could see that he was peering into the mirror to his right on the outside of the bus. He just kept going forward quickly and peering into his mirror. As the bus struck the appellant she remembered screaming and then must have gone into shock as her next recollection was sitting at home at the top step of the stairs leading to her house.
In her oral evidence Ms Luch^t stated that the appellant, straddling his bicycle, walked it across the road and was maybe a metre and a half onto the road when she heard the bus motor. She then looked at the bus and observed the driver looking in his right hand side mirror. She then heard a noise like a collision. When asked whether she saw the bus actually hit the appellant she answered in the negative. She stated that as soon as she heard the bus take off she looked at the bus driver and not at the appellant. She therefore did not see the bus hit the appellant.
Ms Luch^t was cross-examined in relation to three matters that impacted, so the respondents submitted at trial, upon her credit. The first related to the fact that she had a criminal record: in 1966 she had been convicted of stealing; in 1981 of forging and uttering and in 1995 as an accessory before and after armed robbery. She served 11 months gaol for this last offence.
The second matter was that she had instituted proceedings in the District Court against the respondents seeking damages for nervous shock in consequence of what she had seen on 1 July 2007. However, she maintained that she was unaware that she had any claim against the respondents until she went to see Mr Frame, the appellant's solicitor, on 18 February 2008 at his request a week or so after she had provided her statement to the police.
The third matter related to how she came to see the police in December 2007. In this respect she was taken to the police station by the appellant's aunt, Tracey, whom she regarded only as an acquaintance. It was Tracey who requested her to go to the police and provide a statement. She did not know how Tracey became aware that she, Ms Luch^t, was a witness to the accident.
The first respondent gave evidence which was initially summarised by the primary judge at [24]-[25] of his reasons. His Honour recorded that the bus came to a halt just before the bus stop post to the north of the pathway/ramp. It did so to allow a passenger to board the bus. It was already carrying two other passengers. After the boarding passenger sat down the first respondent checked his offside mirror to make sure there was no other traffic. He had observed a red car but it had come to a halt behind the bus. He said he then looked to the front, saw that the coast was clear and commenced to move his bus away from the kerb. Just as he started to move, Aslett came out from the pathway across the front of the bus to the other side of Bunker Parade. The first respondent said that he continued to drive the bus until one of the passengers screamed "Stop stop" at which time he felt a bump under the front wheels and shortly afterwards something hit the side of the bus. At no time did he see the appellant or his bicycle. He brought the bus to a halt but did not apply the brakes in an emergency fashion.
On the day following the accident (2 July 2007) the first respondent provided an electronically recorded interview for the police (Exhibit D). The primary judge extracted the relevant parts of that interview at [26] of his reasons part of which I set out below:
Q. Can you just tell me what happened?
A. Okay what happened. I pulled up to the bus stop there in Bunker Parade. There was a passenger waiting for the bus, I pick him. After I pick up the passenger, I was ready to leave, I put the blinker and look on the back if there was any car coming, next moment this boy with a pushbike just went across in the front and he crossed the road. So and well then I just mentioned to the passenger, I said "silly that boy, you know, he could have got killed for what he just did" because the car behind, he stopped, usually they don't stop when you put a blinker to pull out. And the next moment, I started moving slowly to pull out from the kerb and as I move about a bus length, [it was agreed that the length of the bus was 12.5 metres] I hear a bang on the left side of the bus and the next moment, the passenger says "stop stop". So by the time he said "stop" and the time I stopped, actually stopped I hear something under the bus a noise and I stop. I opened the door, I went and had a look. I thought it could have been, I don't know, a bin, or something on the road and I noticed there was a boy under the bus, he was screaming for help. And straight away I realised the weight of the bus was on the top wheel so I run back inside the bus and I pushed the button to lift the bus up....
Q. So that car had stopped, the boy had gone across and you started to pull out?
A. I started to pull out and I went about one bus length but before the bus length that's when I heard the bang and after it was just behind a bus length where I stop so he could have been a couple of metres before that I stop when the boy scream "stop stop", you know because I didn't know what was going on. If I knew it was a boy who hit the bus I would have went for the brakes straight away but because I didn't know what was going on it took me a fraction of a second to stop....
Q. You said, you did hear something hit the front of the bus is that right?
A. No hit at the front it's on the side, I felt bang first and the next moment I felt a roll underneath. That was in the time of the person that he screamed "stop stop stop".At [27] of his reasons the primary judge recorded what he considered to be the relevant parts of the first respondent's oral evidence. He stated that he brought the bus to a halt just before the yellow bus stop concrete post. He opened the door to allow an Asian gentleman to board. After the passenger had sat down he started to move the bus in accordance with the following exchange:
Q. In what direction were you looking when you started the bus to move?
A. First I look in the front, automatically the front, but I look in the mirror to see if any other car was coming on the right.Q. As the bus started to move, in which direction were you looking?
A. Well, I was looking in the front.Q. What do you mean by "in the front"?
A. When I started moving, I was looking in the mirror, okay, to see if any other car coming but at the same time I had a clear view of the front.Q. Could you see anything ahead of you in the roadway?
A. No, there was nobody there, there was - it was clear as anything, it was....
A. Yes, I started moving. I move 4, 5 metre, not even that. The next moment the boy with pushbike come in the front, he just went zoom straight across and I jump
Q. How far away was that boy from the front of the bus to your observation?
A. He wouldn't be more than - reckon less than a metre.Q. Did you apply the brake when you saw the boy ride his bike straight across the front of the bus?
A. No, I didn't apply the brakes, but I believe I released the accelerator. And the boy went across, as he went across I look in the mirror on the right side and in that moment I thought, you know, if the car--...
Q. Why was it that you looked in the right wing mirror at that point?
A. Because the boy went across and he took my attention.Q. Immediately after looking in the right wing mirror, where did you then look?
A. My eyes was still in the front to look at the road.Q. After the boy had driven past the offside front of the bus, did you continue to drive the bus in a southerly direction?
A. Yes.Q. At what speed was the bus travelling when the boy first road his bike out in front of the bus, can you tell us?
A. I would believe about 15, maybe 20, not even that....
Q. ... Tell us then what next occurred to your observation?
A. Yes, I was travel about two bus length, about good 20 metre, next moment the passenger, he screams, "Stop, stop." [Note that the overall length of the bus was 12.5 metres]Q. Before the passenger screamed "stop stop", did you hear or feel anything unusual?
A. About the same time I felt a bump in the front under the wheels and at the same time, after, I felt on the side, something hit on the side of the bus. And I just -I pull up gently because there was nothing on the road. I didn't just brake all at once, and it took me a couple of metres to stop and I just bring the bus to stand still--HIS HONOUR
Q. Have I got the sequence correctly: There is the bump as the wheel goes over something and then there is a bump on the side?
A. Yes....
GRIEVE
Q. Yes?
A. The passenger reach his seat so I look on my left to see if any still passenger is behind there running, whatever.Q. Pausing there, did you see anything when you looked to your left?
A. No.Q. Did you see any person at all?
A. No, there was nobody there. So-
Q. What did you do then?
A. I look on my right.Q. Yes?
A. And as I look on my right the road was clear, there was only a car pull up behind me and then I remove the handbrakes and I started moving.HIS HONOUR
Q. Mr Mangarelli, when you looked on the right are you talking about looking in the mirrors?
A. In the mirrors, sorry, your Honour.GRIEVE
Q. When you moved forward, where were you looking then?
A. When I was looking forward I looking straight on the road. And next moment this pushbike come crossing in front of me and I believe reaction, I jump, I think I just remove the, the pedal from accelerator but I'm not sure on that. I usually do. But I was going very slowly. (emphasis added)In cross-examination the first respondent accepted that he was aware that there may be children playing on or near the street as Bonnyrigg was a residential area; he knew the pathway and knew it crossed Bunker Parade just after the bus stop; he knew that there were many people from the Bonnyrigg area that would use the pathway and that he had seen people on many occasions pushing prams, riding bicycles and walking across presumably Bunker Parade.
The following further exchanges then occurred:
Q. Do you say you looked to the left-hand side, front left-hand side of the bus as you started to move off?
A. Well, I did must look, yes. I usually do.Q. No, I am asking you what you did on this day?
A. Yes.Q. You definitely remember looking to the front left-hand side of the bus towards the laneway?
A. Yes.Q. Because, I take it, having seen a bicycle travel in front of you moments before, you would be conscious there might be a second one or a third one?
OBJECTION. ALLOWED.
WITNESS: Sorry, how can you see the bicycle? If I am from here to there (indicating), to the barrister, the fence, I cannot see. I can't see nothing what is coming here, the laneway, so in front of me everything is clear.
...
Q. I think you agreed that having seen one bicycle on this Sunday morning you were conscious of the possibility that there may well be others?
A. No.GRIEVE: I object to that. He didn't agree.
HIS HONOUR: He didn't agree with that.
MARSHALL: He certainly didn't agree with it now.
HIS HONOUR: He didn't agree last time.
MARSHALL: I have done what I am obliged to do.
Q. You did not see, forget the first bicycle then, you did not see Mr Egan's bicycle at any time before the bus hit it or Mr Egan?
A. No, because I was looking straight forward and at the same time I was looking in the right side mirror because the boy crossed, it took my attention.Q. Did you see the first boy get to the western side of the road?
A. Yes.Q. But you didn't stop your bus at that point?
A. No.Q. Would you agree that you were travelling about 5 kilometres an hour?
A. A bit more.Q. When Mr Aslett crossed? 5, 6, 7?
A. The bus, as it started moving, I would say at least 10 K.Q. And at 10 K you could stop the bus within a couple of metres, couldn't you?
A. Yes.Q. You didn't put your foot on the brake at that point in time, did you?
A. No.Q. And you didn't look to your left either, did you?
A. I didn't need to look to the left.Q. I am not asking you what you needed to do, that is a matter for his Honour?
A. No, I didn't.Q. But you didn't look to the left?
A. No....
Q. I suggest to you that you did not look either ahead of you or to the left of you as you accelerated away from the bus stop?
A. That's not right....
Q. See in paragraph 12 you say:
"There was no other pushbike, cyclist or pedestrian movement on or near the road to the sight of the path taken by the bike rider."
A. That's true
Q. And that is at the time the first bike rider crossed your path?
A. Well, I didn't see nobody else, no.Q. Did you look?
A. I was looking the boy and the front of the bus, so my vision on the left side it was a blank, but I was looking forward at the same time I was looking in the mirror at the boy that he went across the road. It took part of my attention.Q. So you say your eyes were following the boy across to the western side of the roadway?
A. Now, when you look in the mirror you can see in the front and plus you can see on the side because-Q. When you look at the rear wing mirror on the right-hand side you can see behind you?
A. You can see behind because I already pass the boy. The boy already cross--Q. The boy has already passed, but you could see him to the western side of the roadway out of your peripheral vision?
A. So at that moment he kept my attention.Q. At that point you didn't look to your left-hand side, did you?
A. No I didn't....
A. ... Afterwards, once the boy cross the path in front of me, that's when I was looking in the mirror, the boy went across, and I say
something to myself, including the passenger, and at the same time my eyes went in the front. Looked at the mirror plus the front of the bus.Q. The front right-hand side of the bus, the western side of the roadway?
A. The right-hand side plus the front....
Q. Your focus is to the western side of the roadway, not the eastern side of the roadway, that right?
A. Not to the left, the right at the front.Q. That's what you mean when you say you are looking to the front?
A. Yes. (Emphasis added)The cross-examiner then took the first respondent through the CCTV footage. It recorded that after he closed the doors he looked in his left wing mirror to see if there were any potential passengers coming or running for the bus. Further, the footage indicated that when the bus commenced to move the first respondent was still looking in his left wing mirror and that although his head was turned towards the mirror he was also looking to the front. Thereafter he turned his head to look at his right wing mirror. Although it was suggested to him that at no stage after he started the bus moving from the bus stop did he look to the left hand side of the road in the direction of the pathway his response was, "Yes, I did".
In my view the foregoing evidence establishes, if otherwise accepted, that as the first respondent commenced to move the bus in a forward direction from the bus stop he turned his head to his left to look in his left hand wing mirror and at the same time was able to observe the pathway but saw no one. He then turned back to look in his right mirror as well as looking ahead to ensure that his path was clear. His attention was diverted momentarily by Aslett passing in front of him notwithstanding that the bus was moving and he accepted that after Aslett had passed in front of him he did not look to the left again but only to the front.
At [28] his Honour noted that it was common ground that the passenger who called out "Stop stop" was not the passenger who boarded the bus immediately before the accident (who was a Mr Duong). Mr Duong was available to give evidence but neither side called him. However, a statement by Mr Duong recorded in a police notebook on 3 July 2007 was tendered in the appellant's case and became Exhibit M. Mr Duong recorded that after boarding the bus, he had not even sat down when he heard a thumping noise and another passenger who was seated further back on the same side as Mr Duong yelled out "Stop the bus. You hit someone". Mr Duong looked around and that was when he saw the appellant's bicycle on the ground beside the bus. However as his Honour noted at [30] of his reasons, the CCTV footage indicated that the passenger who called out was seated towards the rear of the bus on its off-side rather than its near-side.
There was a discrepancy in the evidence of the first respondent between what he said in his police statement and his oral evidence at trial concerning the sequence of events when the passenger called out "stop, stop". At [74] of his reasons, his Honour concluded that the first respondent's statement to the police as to the sequence of events was more reliable having been made the day after the accident and was more consistent with evidence of Mr Duong, namely, that he heard a bang or thumping noise on the left side of the bus followed by the passenger shouting "stop stop" and then feeling something under the bus. His Honour continued at [75]:
That sequence of events also fits more easily with the possible scenario of the [appellant] or the bike coming in contact with the side of the bus and then the bus passing over the [appellant's] leg.
At [102] the primary judge found, based on the first respondent's statement to the police which he accepted, that the "bang" on the left side of the bus, the passenger calling "stop stop" and the bump which his Honour found (at [185]) to be the front tyre passing over the appellant's leg occurred almost contemporaneously. This finding was not challenged on the appeal.
The CCTV Footage
As acknowledged by the primary judge at [32] of his reasons, an important piece of evidence was CCTV footage recovered from the bus by the police. That footage exposed the inside of the bus looking backwards from a location in front of and above the driver. From the point of view of the observer, the camera was positioned to the right of the driver.
An initially controversial part of the CCTV footage was the conclusion drawn by Mr Bailey that the movement of Aslett across the front of the bus was reflected in a signboard located behind the bus driver. At [40] his Honour concluded that he was satisfied that the moving object reflected in the sign board was Aslett riding his bicycle across Bunker Parade. This finding was challenged in Ground 4 of the Grounds of Appeal but in his oral submissions in reply on the appeal senior counsel for the appellant conceded that the reflected image was in fact that of Aslett. On that basis the experts were agreed that when Aslett's image was last visible on the CCTV footage as he crossed in front of the bus, it was travelling at approximately 6 kilometres per hour.
Mr Bailey prepared an analysis of the movements of the bus by reference to the street geography and set it out in a spreadsheet which Mr Johnston accepted was accurate (the spreadsheet). Mr Bailey took zero seconds as the start point for the movement of the bus.
At [35] of his reasons his Honour set out what he regarded as useful information to emerge from that process which, when compared to the spreadsheet, is not entirely accurate. However, I set out below the information recorded by his Honour corrected by reference to the spreadsheet and to the matters agreed by the experts in their responses to a series of questions dated 28 October 2011 (the October questions) to which they responded in writing on 24 November 2011:
0.00 seconds Front of bus 5.2 metres from northern edge of the concrete ramp Bus at start point 2.34 seconds Aslett's reflection first seen, bus travelling at approximately 5.1 kilometres per hour 2 metres from start point 2.7 seconds Aslett's reflection last seen, bus travelling at approximately 5.8 kilometres per hour 2.5 metres from start point and 2.7 metres from the northern edge of the concrete ramp 3.96 seconds Front of bus reaches northern edge of the concrete ramp at a speed of between 8 and 9 kilometres per hour 5.2 metres from the start point 4.23 seconds Northern edge of the concrete ramp closely aligned with lower edge of nearside door window of bus 6.2 metres from the start point 5.04 seconds Front of bus passes southern edge of concrete ramp at speed of 12 kilometres per hour 8.2 metres from the start point 5.22 seconds Southern edge of concrete ramp closely aligned with the lower edge of nearside door window 9.1 metres from the start point 5.76 seconds Southern edge of concrete ramp closely aligned with rear edge of door window; driver activates right blinker 11.4 metres from the start point 6.20 seconds Passenger turns head 13.2 metres from the start point 6.84 seconds Rear cycle wheel first visible from front door window (bicycle is lying on its right side) 16.1 metres from the start point and 9.3 metres south of the centre of concrete ramp but note that the experts agreed that the appellant would have fallen under the front of the bus somewhere between 5.4 to 7.4 metres south of the centre of the ramp 7.2 seconds Front nearside wheel of bus passes over plaintiff's leg approximately 17.9 metres from the start point and 9.4 metres from the southern edge of the concrete ramp 7.2 - 7.38 seconds Driver depressed brake pedal which caused suspension seat to visible rise, relative to the bulkhead behind him 17.9 metres from the start point 10.2 seconds Bus stopped 23.9 metres from the start point
In their joint response to the October questions, the experts agreed on the following further matters:
·the appellant's bicycle had fallen to the ground before it first became visible in the CCTV footage;
·the bicycle was moving (on its side) in a southerly direction when it was first seen on the CCTV footage;
·the bicycle moved approximately 1.2 metres from the position where it was first seen on the CCTV footage to its point of rest;
·at the time the bicycle first became visible in the CCTV footage the appellant was located beneath the front overhang of the bus and nearing the front nearside tyre: at this point the front of the bus was 9.3 metres south of the centre of the ramp or 7.8 metres south of the southern edge of the ramp;
·when the bicycle was first seen on the CCTV footage the appellant was probably still moving slowly in a generally southward direction but at this time he was prone on the roadway with his torso and left leg more centrally located in the area between and ahead of the front tyres then his right leg which was run over;
·when the rear wheel of the bicycle is first seen on the CCTV footage the appellant's body was positioned below the front overhang of the bus probably in contact with its underside;
·the appellant's leg was run over 7.2 seconds after the bus moved from its start point which is 0.3 seconds after the rear wheel of the bicycle first became visible in the CCTV footage; it had travelled a distance of 17.8 metres from the start point;
·there is no physical evidence to indicate the location of the appellant at the time Aslett cleared the path of the bus.
Did the Appellant's Bicycle Come into Contact with the Bus and, if so Where and When?
(a) The Case as Pleaded
As already observed the experts agreed that if the bicycle came into contact with the bus no damage was caused to it. At [42] the primary judge noted that the bicycle was examined by Mr Bailey but not Mr Johnston. The former found no signs of damage on the bicycle except some gouge marks on the offside handle bar. Specifically, there were no sign of any yellow paint transfer which could be associated with contact with the bus and no signs of an impact between the bus and the red frame of the bicycle.
An examination of the bus by Senior Constable Duane who attended the scene, revealed what can only be described as a smudge of red paint in one of the scratches on the front nearside corner of the bus. In her evidence, Senior Constable Duane stated that she formed the view that that was the point of impact between the bus and the bicycle. It was Mr Johnston's view, which he maintained, that the bicycle and/or the appellant sustained a low speed impact with the front nearside corner of the bus 1 to 3 metres south of the prolongation of the pathway. Mr Bailey rejected this theory upon the basis that visible damage and marking must have occurred to the bus if there had been a significant collision between a bus travelling at between 11 and 14 kilometres per hour and the bicycle but there was an absence of any physical evidence to indicate that there was any such collision.
So far as the red mark relied upon by Senior Constable Duane was concerned, Mr Bailey in his Supplementary Report of 13 March 2012 set out four reasons for disagreeing with the police conclusion:
·no spectrographic or chemical comparison was made of the paint on the bicycle and the red mark on the bus so that the latter may have had another origin;
·the red mark appeared to be a transfer of red material from an object that came into glancing contact with the bus because the contact did not cause any fracture or indentation of the surface of the relevant panel of the bus;
·the red mark was located near the top of the outer edge of the slightly protruding bumper bar moulding of the front nearside corner of the bus. Had the red painted frame of the bicycle made the red mark referred to by the police, as the front edge of the front nearside door window of the bus was approximately 0.5 metres rearward of the red mark, then the bicycle would have been seen in the CCTV footage prior to 6.84 seconds from the start point at which time it was lying on its right side and away from the bus near the kerb with its wheel in the gutter;
·if the bicycle had made contact with the bus where the red mark is seen, the glancing contact with the side of the bumper bar would, if anything, have deflected the bicycle eastwards away from the side of the bus with little potential to push it southwards towards the location where it ultimately came to rest.
Although Mr Johnston stated in his oral evidence, given concurrently with Mr Bailey, that there was some evidence of potential contact between the bicycle and the bus as identified by the police officer with some possible red paint transfer, he could not say for certain that such transfer occurred particularly because the impact speed would be so low on the appellant's case, about walking speed, that he would not necessarily anticipate damage to either the bicycle or the bus.
As I have already noted, the appellant's evidence was consistent with the allegations contained in paragraphs 7 to 11 of the Amended Statement of Claim. At [48] of his reasons the primary judge concluded that although he was not prepared to find that the appellant deliberately set out to deceive the Court, he did find that his evidence as to how the accident occurred was unreliable and should be rejected. Ground 2 of the Grounds of Appeal alleged that his Honour erred in rejecting the appellant's evidence when it was in part corroborated by other witnesses and, in particular, by Ms Luch^t. However, the first of the October questions to which the experts made a joint response was whether they agreed that the accident could not conceivably have occurred in the manner set out in the original Statement of Claim.
They responded that it was agreed that the accident could not have occurred in the manner set out in the Statement of Claim if that document provided the totality of the circumstances. In this respect Mr Johnston added that it was conceivable that the descriptions in the Statement of Claim could be consistent with elements of other scenarios that could be postulated. Mr Bailey stated that with reference to paragraphs 8 to 11 of the Statement of Claim the incident could not have occurred as there described for the following reasons:
a) Examination of the site, bus and bike by police and clear photos of same, failed to identify any evidence of contact between the bike and bus physical evidence would be anticipated if an impact had occurred before the plaintiff was on the roadway.
b) The plaintiffs bike is first seen lying with its nearside (i.e. left side) facing upwards, and located on the eastern kerb to the side of the bus. This is not a compatible position or orientation following an impact that occurred per the description in the Statement of Claim.
c) The location where the Plaintiffs leg was run over is too far south to be consistent with an impact per the Statement of Claim.
Mr Johnston agreed with (b) and (c) but not (a) as a low impact collision would not necessarily have left any physical evidence. By low impact he was apparently referring to the appellant walking straddling his bicycle (as he alleged) and the bus travelling at between 11 to 14 kph as per the spreadsheet.
With respect to the last matter the experts further agreed in the following terms recorded by his Honour at [44] of his reasons:
The plaintiff's leg was run over by the nearside front tyre of the bus at location approximately 7m south of the southern edge of the concrete ramp, however, the bus began to travel over the plaintiff sometime before his leg was run over. The front of the bus is approximately 2.6m in front of the location at which the tyre would start to engage with the plaintiff's leg therefore at the 7m location, the front of the bus would be located approximately 9.6m south of the southern edge of the concrete ramp. At which point the bus had travelled approximately 18m at an approximate time of 7.2 seconds after commencement.
Furthermore as recorded by his Honour at [45] in relation to the appellant's direction of travel when he commenced to roll under the bus, the experts agreed that:
[t]o have entered the roadway via the eastern kerb, the plaintiff must have travelled with a westerly component of velocity. To have reached the location where his leg was run over, the plaintiff must have travelled with a southerly component of velocity. The experts have different opinions regarding potential scenarios that could have resulted in the physical evidence seen as outlined in their respective reports. The physical evidence does not indicate the plaintiff's speed.
In rejecting the appellant's version of events the primary judge noted (at [50]) that
[b]oth experts agreed that the objective evidence from the CCTV footage required not only some westerly movement by the plaintiff onto the road but some southerly movement. Such southerly movement was essential to explain how the plaintiff's leg was run over by the nearside front tyre of the bus at a location approximately 7 metres south of the southern edge of the concrete ramp.
At [51] his Honour noted that Mr Johnston accepted the proposition in the last sentence.
As originally pleaded the appellant's case was that he had walked his bicycle onto the carriage way at Bunker Parade at a time when the bus was stationary but that without warning it then pulled out from the kerb and proceeded towards him whereby they came into collision. As Mr Johnston agreed in his oral evidence that the bus could not have been stationary when the appellant proceeded to walk the bicycle in front of it, the Statement of Claim was amended to add paragraph 11A. The effect of that amendment was that it was now accepted that the bus had commenced to move south along Bunker Parade at the time, and presumably before, the appellant road his bicycle onto the carriage way. Assuming that the appellant did so from the centre of the ramp and that at that point the bus had travelled, say, 2 metres from the start point, then at that time the bus was approximately 4.7 metres from the appellant. The appellant's case, therefore, was that had the first respondent looked to his left he would have seen the appellant and, according to his evidence, could have applied the brakes and pulled up within 2 metres thus avoiding any collision.
The difficulty with the foregoing allegation is that on the scenario now postulated by paragraph 11A of the Amended Statement of Claim, the first respondent ought to have seen the appellant as he moved onto the carriage way as at that point he was directly in front of the bus. As will appear, the case ultimately made by the appellant, at least on the appeal, was that the first respondent was in breach of his duty of care to the appellant by failing to look to his left and to observe him on that section of the pathway between the fence and the ramp. Yet, on the basis of paragraph 11A of the Amended Statement of Claim the first respondent ought to have seen the appellant by simply looking straight ahead after he commenced to move. The point, however, is that the first respondent was adamant in his evidence, and the primary judge accepted, that he did look straight ahead and his path was clear. The view ahead in his peripheral vision would have revealed the appellant if he had been stopped, as he said he had, at the ramp before moving onto the roadway. No case was sought to be made to the effect that the first respondent was in breach of his duty by failing to observe the appellant on the carriage way in front of the bus.
Having rejected the evidence of the appellant as to how he came into collision with the bus, his Honour then dealt with the evidence of Ms Luch^t. At [56] he noted that her evidence fully supported the version of events given by the appellant and for the same reasons was inconsistent with the only objective evidence which the Court had concerning the accident. His Honour also noted that there were other features that led to him to reject her evidence: in particular, her demeanour when giving evidence was not impressive and she was quite uneasy and was needlessly defensive in some of her responses.
Ground 3 of the Grounds of Appeal alleges that his Honour erred in rejecting Ms Luch^t's evidence given that it was consistent with that of the appellant. However, in the light of the expert evidence not only was his Honour correct in rejecting the evidence of the appellant but also of that of Ms Luch^t. It was even inconsistent with the various theories of how the accident occurred advanced by Mr Johnston. Accordingly, the primary judge concluded, correctly in my view, that the appellant and/or his bicycle had not collided with the bus in the manner pleaded; that is, there was no impact with the front of the bus. Such a finding was consistent with the possibility, suggested by Mr Bailey, that there may have been a low speed impact with the side of the bus but with little, if any, rebound in an easterly direction.
(b) The Alternative Scenarios Postulated by the Experts
In his report of 3 May 2011 Mr Bailey postulated four possible scenarios as to how the accident happened. Scenario A was the version given by the appellant in evidence which was rejected by the primary judge and ultimately, by both experts. Scenario B is reflected in paragraph 11A of the Amended Statement of Claim, namely, that the bus was already moving and the appellant was attempting to stop when he reached the ramp but continued a short distance onto the roadway ahead of the bus. He was then struck by the bus, pushed to the roadway, rolled under the front overhang of the bus and sustained his injuries.
Mr Bailey rejected this scenario as a potential impact on the roadway immediately adjoining the ramp was inconsistent with a number of matters including lack of damage to the bicycle which would have had to occur for it to have been projected approximately 9 metres (presumably from the middle of the ramp) to its rest position on its offside in the gutter. Furthermore, the orientation of the bicycle on its offside was inconsistent with Scenario B which would have resulted in the bicycle being pushed onto its nearside and very likely have travelled under the bus, which did not occur. Mr Johnston responded to Scenario B by expressing the view that it could not be rejected particularly if one accepted that the rear passenger responded to an impact and commenced to yell out before the other passenger (Mr Duong) looked up in which event the impact must have been at or near the point of the invert, being a reference to the ramp.
Scenario C contemplated the appellant falling from his bicycle prior to reaching the kerb which caused him to slide/tumble/roll over the ramp to just in front of, or under, the front nearside of the bus. Mr Bailey rejected this scenario and Mr Johnston agreed that it was "not likely". It may therefore be put to one side.
Scenario D was not rejected by Mr Bailey as it was compatible with the available evidence. It contemplated the appellant falling from his bicycle onto the roadway ahead of the bus prior to reaching the kerb and being subsequently run over. It was explained by Mr Bailey on the basis that the only visible damage to the bicycle was vertically aligned gouge marks on the offside handle bar which was consistent with the bicycle falling to its offside if the appellant veered left (that is towards the south) in an attempt to avoid the bus or for some other reason and the bicycle overturned to its right (that is onto its offside). Such a fall was consistent with the handle-bars contacting the roadway near where the bicycle came to rest in the position seen in the CCTV footage and in the police photographs.
As the appellant submitted, his Honour had the benefit of the joint opinion of Dr Jungfer and Dr Sidney Smith, affirmed in their oral evidence, that the appellant required 12 hours per day of care both from a physical and psychological point of view for the remainder of his life. It was submitted that his Honour was entitled to prefer that view and I agree that that is so.
Finally, the respondents submitted that his Honour failed to discount the appellant's life expectancy because of the fact that he was a heavy smoker and in the light of the views of both Drs Buckley and Zeman that the appellant's life expectancy due to his smoking could be affected, according to Dr Zeman, by ten per cent.
The respondents complained that his Honour did not discount this head of damage due to the effect on the appellant's life expectancy due to his smoking, it was submitted by the appellant that that submission failed to take into account that the life tables incorporate discounts for the entirety of the population, smokers and non-smokers alike; in other words, the appellant's future life expectancy was already discounted. It was further submitted that the respondents' contention did not take into account that the appellant at 21 years of age, may stop smoking at any time in the future so that his life expectancy would not be affected.
In my view, although it is true that the life tables incorporate discounts for the entirety of the population, smokers and non-smokers alike, nevertheless there is substance in the respondents' submission that the appellant's heavy smoking is likely to have an effect upon his life expectancy. However, there is also substance in the appellant's submission that at the time of trial he was only 21 years of age and that he may stop smoking at any time in the future without his life expectancy being affected.
However, whether or not the appellant ceases smoking in the future is a matter of speculation. It was accepted that the evidence established that at the time of trial he was a heavy smoker. Even though only 21 at that time, there is no assurance, given the nature of his injuries and the effect that they are having upon him, that he would necessarily be prepared to give up smoking. In my view his Honour should have provided for the possibility that he would remain a heavy smoker and should, therefore, have discounted his life expectancy by the unchallenged figure of Dr Zeman of ten per cent.
It follows from the foregoing that this ground of the cross-appeal should be upheld and the capitalised figure for a 12 hour per day future assistance regime recalculated on the basis of a ten per cent reduction in the appellant's normal life expectancy. However, in the circumstances, it is unnecessary for that calculation to be performed at this point of time.
Conclusion
With respect to the appeal in my opinion the primary judge was correct to find that in the circumstances the appellant had not proved his case. As I have already observed, the explanation for the accident proffered by Mr Bailey seems to me to have greater force than that proffered by Mr Johnston but I am content with concluding that each expert proffered a theory or inference from the known facts, such as they were, of equal degrees of probability with the consequence that no reasonable and definite inference can be drawn one way or the other.
With respect to the cross-appeal the respondent challenged the awards of the primary judge with respect to four heads of damage upon which, had liability been established, it would have succeeded, in part, on one. In the circumstances, in my view the cross-appeal should be dismissed although, in the event that I am wrong on the issue of liability, then the appropriate order would be for the cross-appeal to be allowed in part. In that event, so far as the costs of the cross appeal are concerned, in my view the respondents should pay 75 per cent of the appellant's costs of the cross-appeal.
I would therefore propose the following orders:
1. Appeal dismissed.
2. The appellant to pay the respondents' costs of the appeal.
3. Cross-appeal dismissed.
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