Elliott v Andrew

[2009] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

ELLIOTT & ANOR v ANDREW

[2009] SADC 31

Judgment of His Honour Judge Clayton

27 March 2009

ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS

First Plaintiff suffered paraplegia after falling from a motorcycle. Accident alleged to have been caused by Defendant’s black and white Border Collie. Second Plaintiff claims for loss of consortium and nervous shock.

Evidence does not identify Defendant’s dog.

Evidence does not establish injury caused by a dog.

Claims dismissed.

Dog and Cat Management Act 1995 s 66; Dog Control Act 1979 s 52; Dog Act 1966 (NSW)  , referred to.
Martignoni v Harris [1971] 2 NSWLR 102; Twentieth Century Blinds Pty Ltd v Howes [1974] 1 NSWLR 244; Keeffe v McLean-Carr and Pacific Pty Ltd (1992-1993) 169 LSJS 74; Roads and Traffic Authority v Royal (2008) 245 ALR 653, [2008] HCA 19, 14 May 2008; Briginshaw v Briginshaw (1938) 60 CLR 336; Helton v Allen (1940) 63 CLR 691; Jones v Dunkel (1959) 101 CLR 298; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267; Salena Estate Wines Pty Ltd v DeVito (2005) 92 SASR 360; Coleman & Anor v Barrat [2004] NSWCA 27, considered.

DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - PARTICULAR CIRCUMSTANCES

Damages assessed for male plaintiff who suffered paraplegia as a consequence of a motorcycle accident.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MENTAL AND NERVOUS SHOCK

Damages assessed for female plaintiff for nervous shock and loss of consortium.

Wrongs Act 1936 s 24AB, s 24H(a), s 33(1); Dog Act 1966 (NSW)  , referred to.
Van Gervan v Fenton (1992) 175 CLR 327; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147; Toohey v Hollier (1955) 92 CLR 618, 624-629; Luntz Assessment of Damages for Personal Injury and Death, fourth edition s 10.1; Curator of Estates of Deceased Persons v Fernandez (1977) 16 ALR 445 at 452; Crabtree v Crabtree (No 2) [1964] ALR 820 at 821; Mann v Flinders Medical Centre [1998] SASC 236, 4 June 1999; Andrewartha v Andrewartha (No 1) (1987) 44 SASR 1; Kite v Malycha (1998) 71 SASR 321; Markellos v Wakefield (1974) 7 SASR 436; Kealley v Jones [1979] 1 NSWLR 723; Jaensch v Coffey (1984) 155 CLR 549, considered.

ELLIOTT & ANOR v ANDREW
[2009] SADC 31

1. The plaintiff Dale Ross Elliott suffered serious personal injury on 26 December 2002 when he came off a motorcycle on Virgo Road at Waikerie. The second plaintiff, his wife Erika Elliott, saw him lying injured on the ground at the scene of the accident and has a claim of her own for nervous shock and loss of consortium.

2. The Statement of Claim alleges that Dale Elliott was riding a motorcycle in a westerly direction towards the property of the defendant Mrs Andrew when at a point adjacent to the property he was confronted by the presence of a black and white border collie "Foster" running across Virgo Road and was required to take "immediate evasive action in order to avoid the black and white border collie dog". It is alleged that "in the course of taking the evasive action… the plaintiff lost control of the motorcycle, fell onto the roadway and sustained serious injuries including paraplegia".

3. Mrs Andrew is the owner of a black and white border collie named Foster. In her Defence Mrs Andrew says "that at all material times her dog Foster was on her property in her immediate vicinity". She denies that Foster was involved in causing Mr Elliott to lose control of his motorcycle and alleges, in the alternative, that if a dog was involved in causing the plaintiff to take evasive action, Mr Elliott was guilty of negligence causing the occurrence of loss of control of his motorcycle and both plaintiffs should have their damages reduced in accordance with the provisions of s 66(4) of the Dog and Cat Management Act 1995. In particular the Defence alleges that Mr Elliott drove the motorcycle at excessive speed.

4. The Statement of Claim was amended to include a claim against Ms Aurora Esteban, the owner of another black and white border collie in the Waikerie district named Bobby. Paragraph 10 A of the Amended Statement of Claim alleged that the black and white border collie was Foster or alternatively Bobby. The claim against Ms Esteban was discontinued prior to the commencement of the trial.

5. Apart from Mr Elliott there was no eyewitness to his fall from the motorcycle, although a number of persons did attend at the scene shortly afterwards.

6. There is clear evidence, and the defendant accepts, that Mr Elliott fell from the motorcycle and that he sustained serious injuries including complete T10 paraplegia. The defendant does not dispute that a dog may have been involved in the incident, however there is a contest as to the identity of the dog and there is a contest as to the way in which the plaintiff came off the motorcycle.

   The Legislation

7. The plaintiffs rely upon the Dog and Cat Management Act 1995. Subsection 66(1) provides that the keeper of a dog is liable in tort for injury, damage or loss caused by the dog and subs 66(2) dispenses with the need for the plaintiff to establish negligence or knowledge of the dog’s vicious dangerous or mischievous propensity. Subsection 66(4) provides that if the plaintiff's negligence contributed to the injury, damage or loss, the damages will be reduced to the extent the court thinks just and equitable having regard to the plaintiff's share in responsibility.

8. There is a question as to the interpretation of the word "caused" in subs 66(1). Both Mr Trim QC and Mr Mills who appeared for the defendant argued that the word "caused" should be interpreted to mean "caused by an attack". Each of them presented an argument as to the way in which the subsection should be construed. They referred to Hansard. The South Australian legislation is to be contrasted with other legislation which creates liability where bodily injury is "caused by the dog wounding or attacking a person".

9. In Martignoni v Harris[1] the New South Wales Supreme Court was required to interpret the Dog Act 1966 (NSW) which created liability for “injury done to any property by a dog”. The trial judge held that it was not permissible to read down the plain meaning of the words. The Court of Appeal held that the section was not limited to things done by the dog in its canine capacity such as biting or scratching, or otherwise of a mischievous nature. Asprey JA said at 105:

   The second matter argued was that injury done to any property by a dog means “something done by the dog in its canine capacity” of a mischievous nature such as biting or scratching or some activity other than, as in the instant case, merely getting in the way of the vehicle. Interesting arguments were addressed to us upon the construction of s. 20, and it was contended on behalf of the defendant that some qualification should be placed upon the general words of the section. We were referred to several cases which were claimed to support that contention. In Simpson v. Bannerman, a case dealing with s. 19 of the Dog and Goat Act, 1898, which corresponds to s. 20 of the Dog Act, 1966, the learned judges of the High Court constituting the majority said of s. 19 (at p. 383): “The opening words of this provision express a liability without condition or qualification. It may be said that the very generality of its terms provokes attempts at restriction by implication. No doubt it is improbable that the Legislature meant that circumstances sufficient to justify or excuse the intentional infliction of harm by the owner should afford no answer to his statutory liability for injury done by his dog. Perhaps an even greater limitation than this is required upon the meaning of the provision.” But the majority in the High Court in that case found it unnecessary to place a definitive construction on s. 19 of the 1898 Act and in the present case I find it unnecessary to attempt to do so in relation to s. 20 of the Dog Act, 1966. If it be assumed that the defendant's argument is well grounded (as to which I say nothing), I think that it is a matter of everyday knowledge that dogs frequently race suddenly across roads in the path of oncoming motor vehicles, often making contact between the dog and the vehicle either difficult or impossible for the driver to avoid. This is a so well-recognized and mischievous characteristic of canine behaviour commonly to be found when driving a motor vehicle upon the public streets that it needs no proof, as judicial notice can be taken of it (cf. Turner v. Coates, per Lush J. at p. 674 and per Bailache J. at p. 675; McQuaker v. Goddard, per Clauson L.J. at p. 700; Behrens v. Bertram Mills Circus Ltd.). In my opinion the appeal should be dismissed with costs.

   [1] [1971] 2 NSWLR 102

10. In Twentieth Century Blinds Pty Ltd v Howes[2] the New South Wales Court of Appeal interpreted the same provision of Dog Act 1966 (NSW). Reynolds JA said at 246:

    I would read the phrase “injury done” in the sense in which the word “do” is defined in the Oxford English Dictionary “to impart to, bring upon (a person etc.), some affecting quality or condition; to beset, confer, inflict; to cause by one's action (a person), to have (something)”. There is no warrant to read down the words of the section so as to limit liability to what have been described as “canine” acts by a dog, and this Court has so held in Martignoni v. Harris. The section cannot be limited in its operation to injury caused by direct physical contact between the dog and the person, property or animal concerned. So to limit it is to confine the words of the section in a way which the Act does not require. The concepts of causation and remoteness are not irrelevant. It is true that the word “caused” is not used in the section, but is found in a similar context elsewhere in the Act. Section 6 of the Act creates an offence on the part of an owner of a dog that “attacks or causes injury to a person or animal”. This change of terminology doubtless is explained by an accident of history. In my opinion, the phrase “injury done” imports the idea of an act causing injury. I am content to decide this case upon the simple basis that, notwithstanding that there was no physical contact between the dog and the person injured, it was open to his Honour to make the ultimate finding he did, and borrowing the words of the High Court in Simpson v. Bannerman. I am unable to adopt an interpretation of the section which excludes liability in the circumstances disclosed in this case. The appeal should be dismissed with costs.

    [2] [1974] 1 NSWLR 244

11. Ms O'Connor, who appeared with Ms Deuter for the plaintiff, referred to Keeffe v McLean-Carr and Pacific Pty Ltd (1992-1993) 169 LSJS 74 where the plaintiff had made a claim pursuant to s 52 of the Dog Control Act 1979, a predecessor of the Dog and Cat Management Act 1995. Section 52 of the Dog Control Act 1979 made the person in control of a dog "liable in damages for an injury caused by the dog." In that case Olsson J said at 95:

    The word "cause", in its normal connotation, simply means that which produces an effect, or the thing from which something results. As Mason CJ recently stressed in the course of his reasons for judgment in March v E & MH Stramare Pty Ltd and another (1990-1991) 171 CLR 506 at 515, what is the cause of a particular occurrence is a question of fact which must be determined by applying commonsense to the facts of the particular case. A value judgment is necessarily implicit in any assessment made.

12. Without wishing to understate the arguments of counsel by not dealing with them in detail, I reject the submission of defence counsel that subs 66(1) of the Dog and Cat Management Act 1995 should be construed to mean that a plaintiff can only recover in respect of an injury caused by an attack by a dog. In my opinion the plain words in subs 66(1) mean that all that is necessary is that the injury should be caused by a dog and an attack or other canine activity is unnecessary.

13. On the question of causation the defendant’s counsel referred to the decision of the High Court of Australia in Roads and Traffic Authority v Royal.[3] Gummow Hayne and Heyden JJ discussed the way in which the actions of the plaintiff himself were the cause of his injury:

    29    …the design of the cross-intersection was thus irrelevant to the cause of the accident.  If the plaintiff failed to see the defendant, that could have been one causal factor in the collision.  But it is not a failure for which the appellant was responsible:  for since in clear conditions the defendant could and did see the plaintiff's vehicle as it stopped at the intersection and then began to move forward, the plaintiff could also have seen the defendant, just as Mr Hubbard, approaching the intersection behind the plaintiff, did.  If the plaintiff did see the defendant, just as the defendant had seen the plaintiff, a causal factor was his failure to use his very good knowledge of the intersection to drive sufficiently carefully to avoid the risk of a collision.  A further causal factor was the defendant's failure to act on his very good knowledge of the intersection, and use the ample time available to take steps to deactivate cruise control, slow down, stop or change lanes or otherwise avoid hitting the plaintiff's vehicle, when that vehicle was apparently doing nothing to avoid a collision, just as the driver behind him did.  He had the time to do any of these things despite being in the wrong lane doing 105 kilometres per hour on cruise control in an area where the speed limit was 100 kilometres per hour and the advisory speed sign recommended 85 kilometres per hour…

    [3] (2008) 245 ALR 653, [2008] HCA 19, 14 May 2008.

14. In discussing the question of causation Kiefel J said:[4]

    135  The but for test has clear limitations.  It was rejected as the exclusive test of factual causation in March v Stramare (E & M H) Pty Ltd.  Its inadequacy as a test for whether an earlier wrongful act or omission, although amounting to a condition of the occurrence of the ultimate harm, was a true cause of that harm, was acknowledged by Mason CJ, Deane and Toohey JJ in Bennett.  In Chappel v Hart McHugh J said that, underlying the rejection of the but for test in such cases, is the instinctive belief that a person should not be liable for every wrongful act which is a necessary condition of the occurrence of the injury.  Causation for legal purposes is concerned with the allocation of responsibility for harm, according to commonsense ideas; its concern is not that of philosophy or science, to explain phenomena by reference to the relationship between conditions and occurrences, as Mason CJ explained in March.  For that reason, McHugh J observed, the mere fact that injury would not have occurred but for the defendant's act or omission here is often not enough to establish a causal connection for legal purposes.

    [4] Ibid at [135].

15. Later Her Honour said:[5]

    143  It remains a requirement of the law that a plaintiff prove that a defendant's conduct materially caused the injury…

    144  The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation.  It requires that the risk eventuate.  Kitto J in Jones v Dunkel said that one "does not pass from the realm of conjecture into the realm of inference" unless the facts enable a positive finding as to the existence of a specific state of affairs.  Spigelman CJ pointed out in Seltsam Pty Ltd v McGuiness, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered.  This enquiry is consistent with the commonsense approach required by March. 

    [5] Ibid at [143, 144].

16. Defendant’s counsel argued in the present case that although the presence of the dog may have been a precursor to the plaintiff leaving the bitumen surface of the road it was not a cause of it. They argued that the plaintiff committed his fate entirely to the accuracy of his prediction that the dog would continue to move across the road and then off the road without change in its course or speed and that was the effective cause of the plaintiff's injuries.

17. It is appropriate to make one or two brief remarks about the defendant’s submissions as to the standard of proof. There are two fundamental matters which the plaintiff must establish on the balance of probabilities. First that the plaintiff's injuries were caused by a dog and secondly that the dog was Mrs Andrew’s border collie Foster.

18. Defendant’s counsel referred to Briginshaw v Briginshaw[6] where the High Court said, with respect to the normal onus in civil cases, not be higher onus which is commonly known as the Briginshaw onus which applies when something more than proof on the balance of probabilities is required:

    …when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a mere mechanical comparison of probabilities independently of any belief in its reality… “reasonable satisfaction” should not be proved by inexact proofs, indefinite testimony or direct references.

    [6] (1938) 60 CLR 336 at 361-362.

19. In Helton v Allen[7] the High Court again referred to the need for the court to "feel an actual persuasion of (the) occurrence or existence of the matter in issue". The plaintiff must prove facts which form a reasonable basis from which a definite conclusion may be drawn. Jones v Dunkel.[8] TNT Management Pty Ltd v Brooks.[9]

    [7] (1940) 63 CLR 691 at 712.

    [8] (1959) 101 CLR 298 at 304-5.

    [9] (1979) 53 ALJR 267.

20. Applying that criterion to this case it is necessary that there should be evidence giving rise to "an actual persuasion" that the defendant’s dog caused or materially contributed the plaintiff's injuries.

    The Location of the Accident and the Background Circumstances

21. Virgo Road Waikerie is a bitumen road which runs generally in an east-west direction. It is approximately 6 m wide and travels through an area where citrus and other fruits are grown. On each side of the bitumen surface there is a dirt verge which varies in width from about 1 m.

22. The plaintiff came off the motorcycle on the northern side of Virgo Road opposite the driveway entrance to Mrs Andrew’s property.

23. Mrs Andrew’s home block is a triangular allotment which is bounded on the northern side by Virgo Road, on the eastern side by Perry Road (which runs approximately north-south) and on the southern side by a short piece of roadway which is an extension of Virgo Road to the east after Virgo Road itself takes a sharp bend to the left for eastbound traffic. There was no evidence as to the area of the property but it would seem to be about half an acre. Foster, a black and white border collie, lives with Mrs Andrew on the property.

24. The plaintiff's parents, Mr Ross Elliott and Mrs Kathleen Elliott have a home on the northern side of Virgo Road several hundred metres west of Mrs Andrew’s property. For decades the Elliott and Andrew families had been close friends, but that is no longer the case.

25. The accident occurred shortly before midday on 26 December 2002.  The plaintiffs were staying with Dale Elliott's parents over the Christmas break. They had travelled to Waikerie in a recently acquired Astra convertible motor vehicle. On Boxing Day two of Dale Elliott's cousins visited the Elliott's for lunch. One of them, Chad Pickert, had recently acquired a Yamaha 600 cc motorcycle. It was agreed that Dale Elliott would take the motorcycle for a test ride and the two cousins would drive the Astra.

1. There is a conflict as to whether the arrangement was arrived at over the telephone prior 26 December 2002 or whether the arrangement was reached after the parties met at the Elliott home on the 26 December 2002. Mr Elliott said that after his cousin Chad Pickert had arrived at Waikerie he offered Mr Elliott a ride on the motorcycle, which Mr Elliott initially declined. Mr Elliott said "I was up there (Waikerie), I was unaware he was coming, and I hadn't really thought about riding a motorcycle that day; wasn't really on my list of things to do". He said Chad Pickert was keen to take the motorcar for a drive and because Mr Elliott preferred to be on the road at the same time he agreed to take the motorcycle for a ride. The evidence of Mr Elliott created the impression that he made decision to ride the motorcycle reluctantly.[10] However the evidence of Chad Pickert was that he had spoken to Mr Elliott on the phone prior to Boxing Day "and we had prearranged for him to ride my motorcycle and I was to drive his car".[11]

   [10]   T 167 l 7.

   [11]   T 413 l 4.

2. Mr Elliott said he decided to go on the bike because it was such nice weather, he enjoyed riding motorbikes and he thought he would go for a ride to see what was happening in the local neighbourhood where he grew up.[12]

   [12]   T 169.

3. The agreed route took the vehicles on a rectangular course of about 5 or 6 km from the Elliott property west along Virgo Road to Ziegler Road where they turned right to travel approximately north to the Waikerie to Cadell Road and again turned right. After travelling to some distance along the Waikerie to Cadell Road the motorcycle and car stopped in the bus parking area of the Ramco school and the drivers had a brief conversation. The vehicles, with the motorcycle leading, then moved off to the east to the junction with Greens Lane where they turned right to travel south along Greens Lane back to Virgo Road and then made the final right turn into Virgo Road to travel west back to the starting point at the Elliott home.

4. As Dale Elliott travelled west along Virgo Road Mrs Andrew’s property was about 500 m east from Greens Lane on the left or southern side of the road with Perry Road running along the eastern boundary of the property to form a junction with Virgo Road.

5. The court viewed the scene. In addition photographs, a video recording and maps of the area were tendered in evidence.

6. After passing Perry Road travelling west Virgo Road curves by about 45 degrees to the left to travel in an approximately south westerly direction and then curves back by about the same amount to the right to resume travelling in the original westerly direction towards Mr Elliott's home. The curve to the left in Virgo Road after passing Perry Road is one which becomes progressively sharper as the driver progresses further into the bend.

7. The general speed limit for vehicles travelling along Virgo Road was 80 km/h. Approximately 140 m east of the site of the accident there was a sign which advised drivers travelling west, that is the direction that the plaintiff was travelling, that the safe speed to negotiate the left-hand and right-hand bends on Virgo Road, which commence immediately east of Perry Road, was 45 km/h.

8. Professor Grzebieta, who was called by the defendant to give expert evidence, observed that the curve to the left is a compound curve which varies in its radius from a value of 235 m east of the crash site to a value of 95 m over a length of approximately 30 m just east of the crash site. He said "this is important in that the curve presents a hazard to motorists and rider alike because the curve tightens as one progresses through it. The advisory sign of 45 km/h provides a clear warning to drivers of the impending hazard and provides a safe speed at which the curve can be negotiated for both dry and wet conditions".[13]

   [13]   Exhibit D147 [6.0.1].

9. The bitumen surface of Virgo Road widened on the southern side to approximately 8 m where Perry Road joined Virgo Road and the driveway to Mrs Andrew’s property. The bitumen surface of Virgo Road was not in particularly good condition, although the condition of the roadway is not said to have played any part in the accident.

10. On the northern side of Virgo Road, directly opposite Perry Road, there is a line of dense trees and bushes which extend for a distance of about 50 m along the edge of Virgo Road. On the eastern end of that line of trees and bushes there is a driveway leading to the property of Mr Peter Reid. On the western end of the line of trees is the driveway which leads to a house which Mr Reid was renting to Ms Kassulke.

11. It was at this bend to the left in Perry Road, a short distance east of the driveway leading to the house occupied by Ms Kassulke, that the motorcycle left the bitumen surface of Virgo Road. That position, where the motorcycle left the bitumen, was opposite the driveway to Mrs Andrew’s home.

12. Evidence which helps with the chronology is that the ambulance was called at 11:55am, it arrived at the scene at 12:03pm and took Mr Elliott to the hospital at 12:40pm. I accept the plaintiff’s submission that the accident probably occurred between 11:45am and 11:55am. The defendant argued that it was between 11:48am and 11:53am. The discrepancy is inconsequential.

13. I mention by way of explanation that when motorcyclists turn a motorcycle they lean into the turn and if it becomes necessary to apply the brakes whilst in a turn the motorcyclist first comes out of the turn and then sits the bike up.

    The Plaintiff's Case on Causation

14. In her opening plaintiffs’ counsel said that as Mr Elliott approached Perry Lane the motorcycle was travelling at about 80 km/h before he got to the bend. He was in the process of slowing down before the bend when he noticed a border collie. He then slowed down upon seeing the dog, he was cautious.[14] Counsel said Mr Elliott:

    … realised that if he continued on the same path that he was travelling on he would hit the dog, they were aiming towards each other. Foster had taken off. So he moved and corrected his journey. He says he was not looking at his speedo at that time but he estimates that he had dropped down to about 60 km/h by this stage and he sat the bike up a little because he realised that he was going to be leaning into the corner and as he would normally do, he was going to have to set it up a little so he would be a safer position to apply his brakes and slow the bike down to avoid hitting Foster. As he was at a point almost parallel with Foster, just metres from Foster, Foster turned and headed back towards the side of the road he had originally been on but a position further away from the plaintiff. By this time the plaintiff estimates, although once again he was keeping his eye on the dog and on the road and also checking for traffic coming in the other direction, he estimated he would have been going at about 50 km/h. Suddenly, upon realising Foster was heading back towards the route the plaintiff was now taking in his corrected route he took evasive action, applied his brakes to slow down, sat upright more so that he would be able to do that, and headed off the road, because he wasn't turning now, he was going straight having applied the brakes, onto the northern side of the road and by doing that he avoided hitting Foster.[15]

    [14]   T 13.

    [15]   T 15.

15. The words which I have emphasised in that passage of counsel's opening describe the movements of the dog upon which the plaintiffs’ claims depend.

16. The findings which the plaintiffs’ seek with respect to the occurrence of the accident are set out in their counsel's final written submission.[16] They include findings that:

    [16] Final submission on behalf of the Plaintiffs Dale Elliott and Erika Elliott [22].

    ·     The plaintiff was travelling at about 80 kilometres per hour, which was a safe speed for the conditions of the road (ii),

    ·     The plaintiff was not travelling in excess of the speed limit (iii),

    ·     The plaintiff took appropriate action and exercised adequate care when first seeing the border collie dog crossing the road (iv) and took appropriate action and exercised proper care when proceeding towards the area where the plaintiff had seen the border collie dog had travelled,

    ·     As the plaintiff rode nearer where the border collie dog was, the dog came out at the plaintiff in a sudden and unexpected movement (vi),

    ·     The plaintiff took timely and appropriate action to avoid the dog when the dog came back out in his direction of travel (vii),

    ·     It was not reasonable for the plaintiff to hit the border collie dog (viii) and it was appropriate for the plaintiff to avoid hitting the border collie dog (ix),

    ·     The plaintiff exercised care when applying brakes on the second occasion and by changing direction to avoid hitting the border collie dog (x),

    ·     The plaintiff exercised care when the plaintiff ran out of road and was about to enter the unsealed section of roadway (xi),

    ·     The plaintiff exercised care when the plaintiff took off the braking action and tried to regain control of the motorbike (xii),

    ·     The plaintiff's actions and injuries were caused by the defendant’s border collie dog being on the road and the plaintiff did nothing to contribute to his injuries (xiii).

    The Evidence of Dale Elliott

17. The plaintiffs’ case is entirely dependent upon the evidence of Mr Elliott. Because of the defendant’s attack upon his credibility and reliability it is necessary to scrutinise Mr Elliott’s evidence carefully. The defendant argued that the plaintiff’s evidence contained six materially different/inconsistent accounts of the events[17] and was therefore unreliable and that when allowance is made for reaction times and distances the accident could never have occurred in the way described by Mr Elliott.

    [17]   Outline of Defendant’s submissions on liability [70.1(4)].

18. The events which caused Mr Elliott to fall from the motorcycle took place in a matter of seconds. His evidence with respect to those events occupied days.

    Mr Elliott’s First Account of the Accident

19. Mr Elliott's evidence was that just after turning to the right from Greens Lane into Virgo Road he looked at the speedometer and noticed that the motorcycle was doing 80 km/h.[18] From that point he backed off on the throttle and just coasted the motorcycle towards the corner, but he did go down in the gears at a point, which would seem to be midway between Perry Lane and Rex Andrew Road.[19] He was aware of the 45 km/h advisory sign and was on the way down to that speed, decelerating, but did not apply his brakes.[20] His intention was to keep "coasting" through the corners and he said that the motorcycle was "rolling freely, unaided" and he was getting very close to the house where he was going to pull into, so his trip was coming to an end and he was decelerating the whole time.[21]

    [18]   T 185 l 6.

    [19]   T 186 l 29, Exhibit P26.

    [20]   T 186.

    [21]   T 187 l 28.

20. Mr Elliott's evidence as to the speed at which the motorcycle was travelling was that after turning out of Green Lane he had accelerated to 80 km/h and then was coasting and that by going back down through the gears he would have dropped at least 20 km/h.[22]

    [22]   T 206 l 29.

21. Mr Elliott said he was concentrating on taking the corner and noticed some movement which he thought was a plastic bag in the shadows of the trees on the right-hand side of the road opposite Perry Road.[23] As he got closer he saw it was actually the tail of a black and white dog.[24] He realised that what he had seen was a dog "because it had turned to the left and was proceeding to walk onto the road, so I could see it had feet and a head and a tail and the white tail was what I initially saw because the dog was facing away from me".[25] At that time he was about half way along the vacant allotment bounded by Virgo Road on the north and Perry Road on the west. That position, which he marked "2" on Exhibit P11, placed the motorcycle on Virgo Road approximately opposite the driveway to Mr Reid’s shed.

    [23]   T 192 l 4.

    [24]   T 194 l 1.

    [25]   T 195 l 14.

22. Mr Elliott said: "The head of the dog was moving in my vision from right to left, it was heading out into the road from the right-hand side of the road and I could - that's the direction of what the dog was doing and I noticed that the dog had a white patch of fur on its left-hand front shoulder, left-hand leg down its leg was all white, and the rest of the dog was black, and a bit on its tail".[26] He indicated an area on his own body from the shoulder to the elbow and co-related that to the dogs shoulder at the front.

    [26]   T 194 l 21.

23. Mr Elliott said the dog was moving reasonably quickly, it wasn't bolting like it was chasing anything and it wasn't wandering. It was like a canter, a decent sort of trotting movement.[27] He did not think the dog had seen him.[28] At that point he was just starting to steer into the corner and was quite close to the left-hand side of the road so he sat the bike up and "applied some brakes at that point because I instantly worked out if I kept going on my intended path that I would have more than likely collided with the dog".[29] That action came to be referred to as the first braking.

    [27]   T 196 l 10.

    [28]   T 196 l 17.

    [29]   T 196 l 22.

24. I digress to comment that if Mr Elliott was starting to steer into the corner when he worked out that a collision was likely, the motorcycle must have reached the corner. That would place it at about the junction with Perry Road.

25. The plaintiff said the dog nearly made it to the other side of the road and then:

    The dog darted back onto the road as if it was stung by something or scared by something and I think it was the noise of the motorbike, me going down through the gears because the engine was labouring quite a lot as it was decelerating, and I think the dog - I’ve seen my dogs do it a number of times when they are startled and it looked back over its shoulder to see where the sound had come from but at the same time it then went back into the middle of the road.[30]

    [30]   T 197 l 26.

26. Mr Elliott said that before darting back the dog had travelled probably three-quarters of the way across the road[31] and the dog "nearly ended up exiting the road onto Colleen Andrew’s property".[32]

    [31]   T 198 l 7.

    [32]   T 201 l 28.

27. That evidence of the dog darting back is critical to the plaintiffs’ case, because that is the evidence that describes the movements of the dog which form the basis of the plaintiffs’ claims under the Dog and Cat Management Act 1995.

28. The questioning of Mr Elliott proceeded[33] as follows:

    QThe direction of line of travel that you were then correcting and taking, would that have avoided the dog if it hadn't turned.

    AYes. I would have been quite close to the centre line of the road at that point and the dog, in my calculations at that point would have nearly been off the road so I would have passed behind the dog with probably a couple of metres to spare.

    QHow close were you to the dog when it turned.

    AI was very close. It was nearly - I would say probably would have been 20 m or so in front of me on my left hand side.

    [33]   T 198.

29. I digress again to comment that if that evidence is correct Mr Elliott anticipated that the dog would continue to cross the road and chose a path which only allowed a margin of “a couple of metres to spare”.

30. The evidence continued:

    QWhat direction of travel did the dog take when it turned.

    AIt moved back to the centre of the road, so from the direction it was going it moved back to the right but its head actually looked back towards me so it was like it was startled, dug its paws in and went back that way. (INDICATES) I think it must have heard the motorbike and I don't know why it did what it did, it startled me for that moment when it did that because I was not expecting the dog to do that.

    QSo when it turned you were about 20 m I think you told his Honour.

    AYes.

    QWhen it proceeded to walk, how far were you from the dog at that point.

    AIt did it instantly, it was like it was a very sharp abrupt manoeuvre, heading on its path and then all of a sudden it got startled and darted back into the road.

    QDid it go the same way it had come or a different way.

    ANo; about 90 degrees from the direction of its travel.

    QAnd where did the dog then go after going back, towards where it had come from or back to the side it came from.

    AIt went back into the road towards the centre line of the road again, which then put it straight on a collision path with me once more.

    QWhat did you do when you realised that.

    AAt this point I knew that either I was going to hit the dog and I just - it was very fast, very quick at that point, what to do, and I applied heavier brake because I didn't want to hit the dog and at that point straightened the bike a bit more to miss the dog because I was going to run into the head of the dog at that point, it had put its nose back around the other way and I only just passed the nose the dog under brakes at that point.[34]

    [34]   T 198 l 22, T 199.

31. Those actions describe what has been referred to as the second braking.

32. On the basis of his evidence to that stage, which covered the events up until the motorcycle passed the dog, at the time when the dog moved back into his path Mr Elliott seems to have released the brake and leaned into the corner again, otherwise his references to applying "heavier brake" and straightening "the bike a bit more" were meaningless. However to that point in his evidence the plaintiff had not expressly referred to releasing the brake or going back into the turn after the first application of brakes.

33. The plaintiff returned to the topic of the movements of the dog later in his evidence saying the dog changed the nature of its movement - "It dug all four feet into the ground and sort of sprung back towards the centre of the road, which is what then made me need to go around the dog again without hitting it, so it didn't really get into a stride, as such, because I passed the dog as it was still sort of looking at me… and then it spun around and that's when I went straight past it".[35] He thinks that he came very close to hitting the dog and glanced past its nose with his left hand shin.

    [35]   T 213 l 32.

34. On that evidence the motorcycle passed the dog as it was still looking at Mr Elliott. If that was correct the dog would have been looking to its left. Mr Elliott said the dog spun around when the motorcycle went past the dog. I have difficulty understanding the movements of the dog. That is the critical evidence in the case.

35. In order to look at a motorcycle which was about 20 m away to its left, the dog, which had been travelling in a south westerly direction diagonally across Virgo Road, had to turn its head anticlockwise to its left; but to move 90 degrees to its previous direction of travel and move north west closer to the centre line of the road the body of the dog would have had to move clockwise to its right. I cannot picture how looking anti-clockwise to its left at a motorcycle which was about 20 m away would have taken the dog back into the path of the motorcycle.

36. If the dog had "put its nose around the other way" to face the plaintiff so that the motorcycle was going to run into the right side of the head of the dog, the dog must have rotated more than 180 degrees clockwise after first looking left. If the dog looked anti-clockwise to the left to face the plaintiff it would not have moved closer to the centre of the road, even if it was startled or jumped. To move appreciably closer to the centre line the dog had to jump backwards or sideways to the right from its original direction of travel, and also move a significant distance.

37. A little later in his evidence Mr Elliott said that after the dog had jumped back they were “both heading towards each other and I again applied the brake and straightened myself up, by that point I was into the turn and so I straightened myself up to try not to hit the dog”.[36]

    [36]   T 204 l 15.

1. I cannot understand how the movement described by Mr Elliott caused the dog to be “heading towards” the motorcycle.

2. It was necessary for his counsel to ask the three leading questions "Does that mean you had gone down", "Do you remember now where it was that you went up, down and up again" and "Where was the dog when you went back down again to take that corner" to eventually elicit from Mr Elliott that he had put the motorcycle back into the turn after the first application of the brakes. Mr Elliott described the position where he went back down again to take the corner saying "The dog was probably about halfway across the road but at that point because I had slowed down and broken the collision point my mind had worked out that I was going to pass behind the dog at that point if it kept on going in its current way".[37]

   [37]   T 204, 205.

3. Mr Elliott was slow to fully describe all of the events in the sequence. However over a period, in different pieces of his evidence, he did describe the complete event. For example, when asked whether he formed an impression about the slowest speed the bike got to before he left it, Mr Elliott went beyond the specific question and explained the sequence of events in the following way:

   No, look, not at that point. I went into the corner, I saw the dog, I applied ample braking to avoid colliding with the dog, I then went back into the corner to safely navigate that corner without going on the opposite side of the road and at that point I wouldn't know what speed exactly and when I saw the dog again coming back and I applied the brake. By that time I was on the other side, subsequently fell off, so it all happened very quickly and it's difficult to estimate speeds other than initially what speed I was going into the corner, because I accelerated to 80 and then I was coasting, I would say going back down through the gears I would have dropped off at least 20 km an hour, the application of brakes would have taken off some more, the second application of brakes would have taken off even more. The speed when I actually fell off or went past the dog at that point I cannot be sure of that, no.[38]

   [38]   T 206 l 21.

4. By way of emphasis I repeat that Mr Elliott said that he had "applied ample braking to avoid colliding with the dog" and then went back into the corner. If that evidence is correct, it was that action in going back into the corner and adopting a course that took the motorcycle about 1.5 m behind the dog, after Mr Elliott had "applied ample braking" that created the potential for the accident. Presumably any danger had been removed by the application of "ample braking to avoid colliding with the dog" before Mr Elliott went back into the turn. I return to the questions of whether that evidence can be correct and the real cause of the accident later.

   Mr Elliott's Evidence as to Braking

5. Mr Elliott said that at the first point of braking he applied the front brake.[39] Mr Elliott said that when he realised he was on a collision course for the second time he straightened up and applied brakes, the front brake which slowed the bike down.[40] He could not say exactly what speed he was then doing but did say his speed, at "various times" was maybe 55, 60 km/h.[41]

   [39]   T 199 l 27, T 690.

   [40]   T 205 l 35.

   [41]   T 206 l 10.

6. Later when asked which brakes he applied. Mr Elliott said:

   Yes. It was the front brake that I felt a lot heavier, but probably it's just natural when you are doing something like that you automatically apply the back brake as well, but the back brake - I know I applied the back brake because it did lock up.[42]

   [42]   T 692 l 8.

7. That evidence of automatically applying the back brake has the hallmarks of a reconstruction rather than an actual recollection. The skid mark establishes that the back brake had been applied. The occurrence of the accident does not depend upon whether the front or rear brake was applied, but Mr Elliott's uncertainty as to which brake he had applied is relevant to the reliability of his evidence.

   Mr Elliott's Evidence – Passing the Dog and Leaving the Road

8. Mr Elliott said that the distance between the position where the motorcycle was closest to the dog and where it left the road was probably 10 m.[43] The length and position of the skid mark establishes that the distance from the position where the motorcycle was closest to the dog to the point where the motorcycle left the bitumen was greater than 10 m. The skid mark itself was 16 m long and there was probably another 10 m from the dog to the start of the skid mark so that the distance from the position where the motorcycle was closest to the dog to where the motorcycle left the bitumen was probably about 25 m.

   [43]   T 214 l 23.

9. When giving evidence about Exhibit 92 the plaintiff said that when he was at a position which he marked “D” his intention was to take a course which he indicated with an orange line. That was a course which would have taken the motorcycle around the bend in approximately the middle of the lane for westbound traffic. The plaintiff had marked on Exhibit P43C the position of the dog as being just to the south of that line. Mr Elliott marked the actual line of travel of the motorcycle on Exhibit 92 with a red line which was a prolongation of the skid mark back to the east, a couple of metres east of the position of the dog. The intended line of travel shows the motorcycle almost clipping the dog. The cross-examination of Mr Elliott continued:

   QYou expected that the dog would continue to move in approximately a southerly direction.

   AYes, and the distance from D (the position of the motorcycle when the dog was in the most southern most position that it reached) to that point, my calculation is the dog would have exited the bitumen surface at that point and I would have had probably approximately a metre and a half or so of room behind the dog to pass safely.

   QThat was going to be my next question: you estimate that you would have had a metre and a half to pass safely behind the dog.

   AYes.[44]

   [44]   T 762.

10. If correct, that evidence suggests that the plaintiff adopted a course of travel which took the motorcycle too close to the dog. Instead of going back into the left turn and adopting a line of travel that passed within 1.5 m of the dog Mr Elliott should have continued to slow down or stop and give the dog as much room as possible until the motorcycle had safely passed the dog.

    Mr Elliott's Evidence about the Motorcycle going off the Road and Him coming off the Motorcycle

11. The plaintiff said that when he went off the road he was under brakes and hoping that he could maintain control of the motorcycle.[45] He also said that at the point he left the bitumen he kept the brakes applied because "I wanted to slow down because I knew that I wasn't going to be on the road".[46] The evidence that Mr Elliott continued to apply the brake after leaving the bitumen is corroborated by the evidence of Ben Elliott and photographs.[47]

    [45]   T 215 l 15.

    [46]   T 216 l 35.

    [47]   T 1311, Exhibit P27 9/14.

12. Mr Elliott said his planned route, if he had not gone off the bike, was to go down one of the rows of orange trees, slow down and hopefully stop.[48]

    [48]   T 216 l 28.

13. Mr Elliott said he heard a slight skid from the back wheel and the bike went off the road. He said "I remained conscious the whole time. I went over a rut that was on the edge of the road and on passing through that rut I was bucked off the motorbike. I landed sort of over the front right-hand handlebars and I landed on my head and shoulder -".[49]

    [49]   T 216 l 13.

14. When asked to explain what he meant by the expression "bucked off" the plaintiff said "when the back wheel hit that rut it launched the motorbike up and it is like sitting on a horse and it rearing up and it tends to put you up over the handlebars, and that's what happened. You can feel it sometimes when you are on a motorbike and you go over, say, a speed bump in a car park. It can be quite a sharp jolt if you are not prepared for it".[50] He said the jolt was caused by "the suspension going down and then rapidly coming back up again".[51]

    [50]   T 217 l 5.

    [51]   T 217 l 13.

15. In that evidence Mr Elliott had no doubt about what caused him to come off the motorcycle. Mr Elliott acknowledged his awareness of another phenomenon where riders are thrown off bikes and said:

    Yes, I'm aware of that. What can happen there is the motorbike can get an oscillation up from the gyroscopic effect of the wheels from applying brakes and that left and right and left and right wobble and it can get that bad that as soon as the seat is coming left and you are going right you hit it and then it launches you off. This is different to that. This was purely from the motorbike navigating rough terrain immediately after leaving the road surface.[52]

    [52]   T 217 l 19.

16. As the trial proceeded the plaintiffs’ case changed from Mr Elliott being "bucked off" after going over a rut/rough terrain to Mr Elliott being ejected from the motorcycle when it suffered a "high side", that is the situation where a rider is thrown off a motorcycle by the centrifugal force created when the brakes are released.[53]

    [53] Final submission on behalf of the Plaintiffs Dale Elliott and Erika Elliott [214].

17. After a video recording of the locality was shown to the court Mr Elliott was asked whether a culvert shown in the video was what he rode his bike into. He replied:

    I can't be sure exactly but I know that that was right in front of the motorbike. I'm not sure if the back wheel slid out before that because it was under brakes, but there is indication that that was the - that I went straight over that divot because of the marks that were left on the road and where I actually ended up.[54]

    [54]   T 219 l 8.

18. Being under brakes is inconsistent with a “high side”.

19. That uncertainty is to be contrasted with the very definite evidence which Mr Elliott had given initially about being "bucked off" when the back wheel hit the rut and the suspension going down and then rapidly coming back up again. The suggestion that the "back wheel slid out" introduces a third possibility.

20. Still in examination in chief, a few pages further into his evidence, his counsel again asked Mr Elliott to explain how he came off the bike and describe the movements of his body and bike and he answered:

    Sure, after when I got close to the edge of the road, once I hit the gravel, right at that point, I'm not sure if the back wheel dug into the dirt and then flipped over to the right and that's what sort of bucked me off or whether it was closer to this ditch that I left the motorbike, but I left on the right-hand side of the motorbike and hit the ground, I did a couple of rolls after I hit the ground. I was winded and went to sit up, and I couldn't sit up.[55]

    [55]   T 221 l 4.

21. The reference to the possibility of the back wheel digging into the dirt is yet another alternative.

22. Later I asked Mr Elliott again whether it was going over the ditch that caused him to be bucked off and he replied "It could have been". His evidence continued:

    QIf you don't know don't hazard a guess.

    AI can't be sure. It's too close and it happened so quickly, I remember impacting the ground beyond the ditch, so whether the ditch caused me to exit the motorbike or whether I was already coming off the motorbike before that and the ditch made it worse or - but I can remember hitting the ground, close to the ditch, but after the ditch, as I was moving away from the road.[56]

    [56]   T 221 l 23.

23. Mr Elliott said that he had continued to apply the brakes after the motorcycle left the bitumen. However as the plaintiffs’ case developed evidence of other witnesses which was based on an interpretation of photographs, created uncertainty as to whether Mr Elliott had continued to apply the brakes after the motorcycle moved from the bitumen. The theory that the motorcycle suffered a "high side" required the release of the brakes at about the time the motorcycle left the bitumen.

24. It seems that Mr Elliott does not really know what happened. I do not criticise him for that. The accident occurred only seconds before he suffered a traumatic injury which has changed his life forever. What is of concern is that Mr Elliott initially gave quite clear and unequivocal evidence about the way in which he was bucked of the motorcycle, but shortly afterwards gave contrary evidence which indicated that he just did not know what had happened.

    Evidence by Mr Elliott of Other Sequences of Events

25. The initial evidence of Mr Elliott as to the sequence of events preceding the accident was confused by the following exchange:

    QYou were riding your motorcycle, and the dog moved from your right to your left.

    AYes.

    QAnd having crossed in front of the motorcycle, the dog continued to move to your left.

    AYes.

    QHadn't the danger disappeared when the dog crossed in front of your motorcycle and moved off to the left.

    AI understand what you're saying, I think to clarify that the motorbike's path and the - because I was on a corner straight ahead of my - of the motorbike the dog passed but I wasn't going straight ahead I was turning, so the dog never actually came in front of the motorbike it remained on the right-hand side until I took avoiding action to go behind the dog and so at that point I didn't have the dog come in front of me and I didn't get to say "Oh, the dog has passed me and come back". It was a combined effect of the dog converging into my intended point, I instantly understood that, I applied the brakes to go around the dog and that's when it darted back….[57]

    [57]   T 292 l 30, T 293.

26. It was suggested to Mr Elliott that his earlier evidence had given a different impression of the way in which the accident happened and that there had to be a point in time when the dog moved across in front of the direction of travel of the motorcycle. He replied "I would say that I actually moved the motorbike past the dog".[58] When asked to explain he continued "The only time that the dog was on my left hand side of the motorcycle was when I took diverting action around the dog, so before that it was all on my right hand side. It had never gone across in front of me whilst I was in the turn". The plaintiff said "…I was on the motorbike, the dog was coming from the right, at that point it had never passed in front of me (Indicates). I realised that I was going to hit it -…".[59] The plaintiff confirmed that the dog continued to come from his right. He said that as he was veering around to the left on the motorcycle, the dog continued to come from his right and he "straightened up, applied brake, went around the dog".[60]

    [58]   T 293 l 29.

    [59]   T 294 l 5.

    [60]   T 294 l 21.

27. If that evidence is correct the plaintiff did not straighten up and brake as a consequence of the dog jumping from his left back into the path of the motorcycle. On that evidence the straightening up and braking took place as the dog continued to come from Mr Elliott's right.

28. On that evidence Mr Elliott had applied the brake to go around the dog before it darted back. The evidence is inconsistent with the plaintiff's earlier evidence that when the dog was about half way across the road Mr Elliott worked out that he was going to pass behind the dog and went back into the turn,[61] Mr Elliott's earlier evidence of the dog reaching the middle of the road and continuing on, and the evidence of Mr Elliott in re-examination, that Mr Elliott had chosen a line of travel which would have taken him about a metre and a half behind the dog.[62]

    [61]   T 205 l 1.

    [62]   T 763.

29. Mr Elliott was taken back to the events which caused the accident and gave evidence of the following events:

    QYou mentioned that you veered around the dog.

    AYes. I was in the corner, leaning to the left, I sat the motorbike upright, applied the brake (Indicates), and then because I sat upright, as I was turning and I sat upright, I started to go straight for probably 10 m or so at that same time as sitting the bike upright I was applying the brake, and that had then alleviated the potential impact point because now I had broken that convergence, so I then had a clear path behind the dog's tail, that I could release the brakes, go back into the corner, because if I didn't do that, I would have ended up -

    QLet's take it step by step, you had a clear path -

    ABehind the dog, yes.

    QHow far was the front of the motorcycle from the dog when you had a clear path.

    AI would say I had probably 15 m.

    QSo you sat the motorcycle up.

    AYes.

    QSteered behind the dog.

    AYes.

    QAnd then what happened.

    AAnd then I released the brakes and went back into a left-hand turn again to navigate around that bend and by that time -

    QAt that point when you went back into the turn - what was the distance between the front of the motorcycle of the dog.

    AProbably right at that point, it was very soon after, so I suppose maybe 8 m or so.

    QSo you went back into the turn and went to steer behind the dog.

    AYes.

    QWhat happened then.

    AAt that point the dog darted, was startled and darted straight back towards me, or straight back towards the centre of the road, not towards me, but towards my then adjusted intended point of travel, that's when the dog darted back and I realised then once again I was on a collision course to hit the dog. And so then I sat the motorbike up and I applied brakes again, and I can remember myself thinking "Oh no, this time I'm going to hit the dog". This all happens very quickly but I do remember thinking to myself "Uh oh" and I hit the brakes a lot harder especially the back brake, and that's when I remember the back brake locking up and I passed the dog's nose very close… and at that point the back wheel had locked up and very soon after that I was onto the dirt of the other side of the road".[63]

    [63]   T 295 l 13, T 296.

30. On that evidence the motorcycle was only 15 m from the dog when Mr Elliott noticed he had a clear path and the motorcycle was only 8 m from the dog when Mr Elliott released the brake and went back into the turn. He said it was at that point, that is when the motorcycle was 8 m from the dog that it darted back.

31. That evidence referred to a hard application of the back brake and suggested that the sequence of the events was the back brake locked up before the motorcycle passed the dog's nose. The position of the skid mark on the roadway and the evidence as to the position of the dog indicates that did not happen. The skid mark commenced well after the motorcycle had passed the dog.

32. Having regard to reaction times, Mr Elliott’s estimates that the motorcycle was 25 m from the dog when he braked for the first time, was 15 m from the dog when he had a clear path behind the dog’s tail and was 8 m from the dog when he went back into the turn cannot be correct.

33. I have not sought to identify and distinguish the six versions referred to in the defendant’s outline nor have I sought to conduct a thorough audit of the evidence and identify every inconsistency in Mr Elliott’s testimony. The evidence to which I have referred identifies sufficient significant inconsistencies to indicate that the evidence of Mr Elliott can not be relied upon.

    The Objective Evidence

34. I have already referred to the physical characteristics of the area. Persons who attended the scene immediately after the accident were able to give evidence of what they saw. Ben Elliott took photographs which were admitted into evidence. Mr Furness, a Police Officer made observations and notes.

35. Mr Fox, a Loss Assessor, inspected the scene on 17 January 2003, that is about three weeks after the accident, took photographs, made a video film of the scene and prepared a plan.

36. The objective physical evidence of the incident included a skid mark on Virgo Road, marks in the dirt from the northern edge of the bitumen of Virgo Road extending to the west across the verge towards a bottle brush tree, marks in a drainage culvert to the right of that bottle brush tree which I find were made by the body of the plaintiff, and damage to branches on the left of the bottle brush tree, which I find were caused by the motorcycle. Eye witnesses gave evidence of the positions where the plaintiff and the motorcycle came to rest.

    Findings Based on the Objective Evidence

1. The evidence enables me to find that the plaintiff came off the motorcycle just prior to and on the right-hand or eastern side of the bottle brush tree which was immediately west of the culvert and the motorcycle passed to the left or west of that bottle brush tree. The plaintiff passed on the right or eastern side of the bottle brush tree, that is the same side as the culvert.

2. The plaintiff came to rest by an orange tree which is identified in the photographs. The position of the plaintiff was about 15 m from the end of the skid mark on the bitumen. The motorcycle came to rest to the west of Mr Elliott about 19 or 20 m from the end of the skid mark on the bitumen.

3. The plaintiff's initial evidence was that he was “bucked off”. There was also evidence of the back wheel digging in. His counsel argued in their final address that the motorcycle had suffered a high side.  The assumption that the bike suffered a high side was based on the assumption that the braking had ceased at the edge of the bitumen, but that assumption is contrary to other evidence, which I accept.

4. The evidence does not permit me to make any finding as to what caused the plaintiff to come off the motorcycle.

5. I find that the motorcycle continued to skid across the dirt verge to the bottle brush tree after it had left the bitumen.

   The Length of the Skid Mark

6. A critical fact is the length of the skid mark left by the motorcycle on the bitumen surface. One would have expected such a simple fact to be undisputed. Unfortunately that is not the case. The length of the skid mark is important because it is one of the matters taken into account by the expert witnesses in assessing the speed of the motorcycle and the position of the motorcycle on the road when certain actions, such as the application of brakes, were taken.

7. Constable Furness who attended the scene paced out the skid mark at 16 m. Mr Fox, a Loss Assessor, measured the skid mark with a wheel at 11 m. Mr Hall, who also used a wheel, arrived at a length of 8.3 m. Professor Grzebieta identified the extremities of the skid mark from photographs, placed cones at those extremities and then calculated the distance between the cones to be 16 m.

8. I think the most reliable measurement is that of Constable Furness who attended the scene, because he measured the skid mark on the day of the accident when it was fresh. There is an argument as to the length of his paces. In addition to measuring the skid mark at 16 paces, Constable Furness measured the distance from the prolongation of the western edge of the bitumen of Perry Road to the commencement of the skid mark to be 16 paces. The actual distance from the prolongation of the western edge of the bitumen surface of Perry Road to the point where the skid mark finished on the bitumen is 32 m which is consistent with 16 m of skid mark and a further distance of 16 m from the skid mark to the prolongation of Perry Road.

9. Counsel for the plaintiff submitted that the evidence of Professor Grzebieta as to the length of the skid mark should not be accepted because he did not produce his actual calculations to the court. He had not been asked to produce the calculations. He no longer had the information in his possession, having left it with a firm with which he no longer has an association. He is very highly qualified and carried out a careful calculation. In my opinion there is no sinister inference to be drawn from the fact that he did not have his working papers with him and there is no reason to reject his evidence.

10. The plan prepared by Mr Hall,[64] shows that he placed two cones on the roadway to represent what he thought were the extremities of the skid mark. He then measured from a stobie pole which was 3.3 m north of the northern edge of the bitumen surface of Virgo Road in a line which was parallel to the skid mark on the dirt verge. The cone which he placed to indicate the western extremity of the skid mark was 3.8 m to the east or short of the edge of the bitumen surface. I am satisfied from the photographs, the video, and oral evidence of Ben Elliott that the skid mark extended all the way to the edge of the bitumen. Accordingly, Mr Hall's identification of the extremities of the skid mark is flawed and his measurement is inaccurate for that reason.

    [64]   Exhibit D142.

11. I cannot explain how Mr Fox arrived at a lesser distance. Mr Fox was aware that Constable Furness had measured the skid mark at 16 m but he never attempted to reconcile the difference with Constable Furness.

12. For the reasons which I have explained, I accept and proceed on the basis of the evidence of Constable Furness and find that the skid mark was 16 m in length.

    Expert Evidence

13. The plaintiffs’ solicitors called as an expert witness Mr Chris Hall of Hall Technical Services. Mr Hall has an honours degree in engineering. Between 1975 and 1978 he was a research fellow and carried out at scene investigation of over 300 accidents. He has been a consultant in vehicle and industrial accidents and has appeared as an expert witness in many cases. He has a keen interest in motorcycles and from 1968 to 1994 was a competitor in all facets of motorcycle sport. From 1994 to 1999 he was the chairman of the National Safety Committee of Motorcycling Australia.

14. The defendant called as an expert witness Professor Raphael Grzebieta who occupies the Chair of Road Safety in the New South Wales Injury Risk Management Research Centre at the University of New South Wales. His qualifications include a PhD and over 100 in depth crash investigations and accident reconstruction analysis. He has been involved in projects including vehicle safety, roadside safety, go-kart crashes, industry and construction safety. He has supervised PhD students in areas including vehicle crash worthiness and injury biomechanics. He is the immediate past president of the Australasian College of Road Safety.

15. Any opinion expressed by either of the experts on the topic of road accidents must be highly respected. The ultimate resolution of this case does not depend upon a choice between their respective opinions.

16. Both experts accept that there is reaction time between when a driver perceives the need to take action and the implementation of that action. It is accepted that reaction times vary but range from about one second up to 2.5 seconds: depending on the experience and alertness of the driver. For their calculations both experts assumed a reaction time of 1.5 seconds.

17. There is no support for, and I reject, the plaintiffs’ counsel’s submission that the allowance of a reaction time of half a second would be appropriate for making calculations as to the final application of brakes by Dale Elliott.

18. Mr Hall made calculations, on the basis of differing assumptions which he listed, that the likely speed range of the motorcycle at the beginning of the skid mark on the bitumen surface was either 66 or 77 km/h. He expressed the opinion that: "taking into account the uncertainty of the distances and the rates of deceleration involved, it was likely that if Mr Elliott was a rider of moderate experience, he was likely to have been travelling at between 65-80 km/h when he braked in the manner described", that is when he braked for the second time at the start of the skid mark.[65]

    [65]   Exhibit P139 [5.33].

19. In Exhibit P140 Mr Hall confirmed his earlier opinion that the speed of the motorcycle where the second braking commenced was likely to the 65-80 km/h.[66]

    [66]   Exhibit P140 [1.a.ii].

20. Mr Hall also expressed the opinion that if the motorcycle had slid along the path depicted in Exhibit P128(2), the likely speed at the point of Mr Elliott's first reaction to the dog would have been:

    ·  for 10m braking 70-90 km/h

    ·  for one second braking 80-100 km/h

    ·  for two second braking 95-115 km/h

21. Professor Grzebieta also calculated the speed of the motorcycle at the point of first perception for a range of assumed braking times and speeds.[67] He concluded that it was likely that the motorcycle was travelling in excess of 80 km/h at the point of first perception and likely between around 90 to 95 km/h. Professor Grzebieta estimated the speed of the motorcycle at the beginning of the skid mark to be within the range of 76 to 82 km/h, depending upon the coefficient of friction adopted.[68]

    [67]   Exhibit D148 p 10.

    [68]   Exhibit D148 p 9.

22. The calculations of each expert contain assumptions which may or may not be correct. The assumptions include the length of the skid mark, the movements of the motorcycle after it left the bitumen surface and the coefficient of friction to be applied at different stages of the motorcycle's journey. An analysis of the different assumptions and calculations would be an interesting exercise, but that is unnecessary to resolve the case.

23. Given the range of possible speeds I desist from making a finding as to the actual speed of the motorcycle at the time of the first reaction or at commencement of the skid mark. The overall range of the estimates at the point of the commencement of skid mark is 65 to 82 km/h. I find that the plaintiff's evidence that he had dropped from about 80 to about 60 km/h or was 50 to 60 km/h cannot be correct.

24. I find that any speed within the overall range estimated by the experts was too fast for the position that the motorcycle was in at the commencement of the skid mark.

25. Without resolving the differences in the calculations of the experts, indisputable facts establish that the accident just could not have happened in the way described by Mr Elliott. When allowance is made for the reaction time the sequence of events described by the plaintiff could not have occurred within the distances claimed by Mr Elliott. The evidence of the experts with respect to Exhibit D145 demonstrates that, if the evidence of Mr Elliott as to the sequence is correct, the relevant events must have occurred a long way further to the east than where his evidence would suggest.

    The Evidence of Mr Reid

26. Mr Reid owns the house in which Ms Kassulky was living on the northern side of Virgo Road opposite the driveway to Mrs Andrew's property. Mr Reid lived in a caravan which was behind a large shed to the east of that house. He is an experienced motorcycle rider.

27. Mr Reid gave evidence of the events of Boxing Day 2002. He was getting ready to go fishing. A friend who was to accompany him came to his home to discuss the arrangements. They agreed that the friend would return to his own home and then Mr Reid would pick him up. Mr Reid's attention was attracted by the noise of a motorcycle. He heard a motorcycle coming down the road revving fairly well, going up through the gears. To use his expression the rider was "wringing its neck", that is revving it out to the red line or close to it. He heard the motorcycle change up through two or maybe three gears. Mr Reid formed the impression that the motorcycle was probably a kilometre away maybe a bit less when he heard the noise.

28. At that time Mr Reid was standing at the front of his shed. He said "from the time that I heard the motorbike, seconds later I looked up to see a motorbike going past. The rider was sitting up and changing back a gear".[69] He described the driver as bracing himself and then sort of lifting himself back on his arms, straightening his arms. When Mr Reid saw the motorcycle it was on Virgo Road about 20 m east of the junction with Perry Road. What he saw caused Mr Reid to remark to his friend "there goes another temporary Australian". He said he was referring to motorcycle riders who go too fast and eventually come off like he had himself.[70] Mr Reid formed the impression that the motorcycle was travelling at well over 80 km/h.[71]

    [69]   T 1458 l 13.

    [70]   T 1459 l 10.

    [71]   T 1459 l 17.

29. His friend then returned to his own home on the understanding Mr Reid would pick him up in a little while. Mr Reid went back inside his shed to check everything and then drove off down Perry Road. As he pulled out of his property a police car went past. It can be assumed that was Mr Furness travelling to the scene. Mr Furness said that was about midday, although he did not make an accurate note.[72] The ambulance had arrived at the scene at 12:03pm and was already there when Mr Furness arrived. The arrival of the police car was at the earliest likely to have been shortly after 12:03pm.

    [72]   T 1130 l 22.

30. Mr Reid acknowledged that he could not identify the rider or the motorcycle other than to say it was a road bike.[73]

    [73]   T 1461 l 30.

31. He said that when he initially heard the motorcycle it was about a kilometre away. When asked whether it was coming up Greens Lane Mr Reid said:

    ANot that I - I don't think so, no. Just by going, by the sound of it, he's come around, there’s a pretty sharp corner and then there's a bit of a, I suppose you’d call it a curve, I reckon, in my own mind, I heard him coming around that corner and on that straight, which is probably about another half a k back up here.[74]

    [74]   T 1462 l 38, T 1463.

32. Mr Reid indicated on a map a section of Virgo Road to the east of Green Lane.

33. In cross-examination it was suggested to Mr Reid that the time was about 11:30am but he was emphatic and I accept that it was around midday.[75]

    [75]   T 1460 l 22.

34. Ms O'Connor suggested that from when he first saw the motorcycle until he saw the police car could have been anywhere up to three quarters or half an hour. He said "no way in the world" and that it was "10 minutes at the most. 10-15 minutes at the most".[76] Ms O'Connor argued that Mr Reid's evidence did not identify the plaintiff as the rider of the motorcycle which he saw and that the person whom he saw could have been Mr Pickard when he was riding a motorcycle to the Elliott home.

    [76]   T 1474 l 24.

35. I am satisfied that the motorcyclist whom Mr Reid saw was not Mr Pickard.

36. However Mr Reid was not able to identify the rider and he gave evidence that the rider had come along Virgo Road for some distance east of Greens Lane. Mr Reid was "pretty adamant" that the motorcycle he heard did not come up Greens Lane.[77]

    [77]   T 1504 l 5.

37. The time when Mr Reid saw the motorcyclist is consistent with the motorcyclist being Mr Elliott. There is no evidence of any other motorcyclist on Virgo Road at that time. However that does not mean that there was not one. I am unable to find that the rider whom Mr Reid saw was Mr Elliott because of the evidence of Mr Reid that the motorcycle which he saw had not come up Greens Lane.

    The Defendant's Arguments

38. I have rejected the defendant's argument that the owner of the dog is only liable where the injury was caused by an attack.

39. Defence counsel referred to inconsistencies between the plaintiffs’ pleaded case, the manner in which his case was opened and his evidence.[78] In addition it was argued that the plaintiff's oral evidence was irreconcilable with his response to a Notice to Admit and the plaintiff’s oral evidence as to the occurrence of the accident departs from what is alleged in the Amended Statement of Claim and the opening of his counsel. There are also inconsistencies in the evidence itself.

    [78]   T 2120 l 15.

40. In this case the position where the plaintiff's body came to rest is not in dispute and the statements in the pleadings and answers to the Notice to Admit that the plaintiff fell onto the roadway were an obvious error. The existence of such discrepancies cannot be completely overlooked but I do not regard them as persuasive. There can be many reasons why the opening of counsel may not deal with the detail which emerges during probing in evidence.

41. The defendant’s counsel argued "there are multiple descriptions of the movements of the dog and the overarching submission is that the plaintiff's evidence in all material respects as to the circumstances in which the accident occurred simply cannot be accepted, it does not withstand scrutiny and does not withstand examination based upon,... the weight to be given to the objective evidence".[79]

    [79]   T 2122 l 6.

42. It was argued that the cause, in the legal sense, of the plaintiff leaving the road was his decision to proceed rather than take a prudent course and slowdown, throttle back on his bike, perhaps bring it to a halt altogether and that whatever the dog did was not a legal cause. In this context the remarks on the topic of causation of Gummow, Hayne and Heyden JJ as to the conduct of the plaintiff in Royal, in para 29 of their reasons, are apt.[80]

    [80]   See para 13 of these reasons.

43. Counsel argued that the speed of the motorcycle at Mr Elliott's first perception of the dog was manifestly excessive.

44. Counsel argued that the evidence of Mr Hall was of no support to the plaintiffs’ case because of the assumptions he was asked make. Also Mr Hall's evidence was confirmatory of the fact that at both material times, namely the point of first perception and the point of second perception, the plaintiff was travelling at a speed which meant he was doomed to leave the bitumen.[81]

    [81]   T 2125 l 9.

45. Counsel argued that whatever caused the plaintiff to react to apply the brakes and leave the skid mark on the road was a very long-distance back to the east. He argued that the plaintiff's point of first reaction and the distance he was back to the east bears no resemblance to Mr Elliott's evidence and demonstrates that his evidence as to what occurred and the situation that emerged in front of him, bears no resemblance to what in fact happened.[82]

    [82]   T 2152 l 24.

46. Counsel argued that the skid mark could not have been left in the position on the bitumen where it was and the bike could not have travelled across the verge as it did if the plaintiff was responding to the dog's presence when he says he did. It was not the situation of emergency that the plaintiff depicted in his evidence.[83] The second application of brakes must have occurred a long way further back east from the point suggested by the plaintiff.[84] If that was the case the situation of emergency was not created by the proximity between the bike and the dog,[85] but the situation of emergency was created by the inordinate speed at which the plaintiff was travelling.[86] Whatever the plaintiff said about the presence of the dog and its significant to his actions as he came into the corner cannot be accepted and the significance of the presence of the dog falls away.[87] The plaintiff's evidence was unreliable and cannot support any finding as to the significance of the movement of the dog.[88]

    [83]   T 2156 l 1.

    [84]   T 2156 l 18.

    [85]   T 2157 l 2.

    [86]   T 2157 l 10.

    [87]   T 2157 l 13.

    [88]   T 2157 l 21.

47. Defence counsel relied upon Mr Hall’s estimate of the speed of the motorcycle as falling within the range 80 to 100 km/h[89] and to the estimate of Professor Grzebieta which was in the order of 89 km/h.[90]

    [89]   T 2158, Exhibit P140 [1.a.ii].

    [90]   T 2159, T 1942.

    Discussion of the Cause of the Accident

48. The final version of the plaintiff's evidence was that having identified a dog he sat the motorcycle up and braked once, then when the motorcycle was 15 m from the dog he had a clear path, released the brakes and went back into the turn, then when the motorcycle was 8 m or so from the dog, the dog was startled and darted back towards the centre of the road and the plaintiff sat the motorcycle up and applied the brakes a second time.[91] Those distances are inconsistent with Mr Elliott's earlier evidence, but that is the sequence of events which Mr Elliott's evidence came down to.

    [91]   T 295, T 296.

49. I find that because of the necessary reaction time it was not possible for the events to have occurred within the distances referred to in any of the evidence of Mr Elliott.

50. A distance of 15 m from the dog was completely insufficient for the plaintiff to react to release the brakes, go back into the turn, then sit the bike up again and reapply the brakes so that the wheels locked to cause the skid marks which were made on the roadway. Moreover a distance of 7 m, that is the difference between the point 15 m from the dog where the plaintiff said he released the brake and went back into the turn and the point 8 m from the dog where the plaintiff sat the bike up and chose a path which would have taken the motorcycle behind the dog was a completely insufficient distance within which to do those things.

1. 3. The plaintiff claims an amount of $6,149.13 for assistance to and from the airport. The evidence does not establish the need for special assistance or the cost involved. I reject this claim in its entirety.

2. 4. The plaintiff claims the sum of $17,394 being the difference in cost to fly business class rather than economy on one overseas trip every five years. This claim is not supported by evidence and is unreasonable. I reject the claim in its entirety.

3. 5. There is also a claim, not quantified, based on an alleged inability to stay with friends and relatives and the need to stay in a hotel room. There is no evidence upon which I could make an allowance under this head.

4. I therefore disallow the entire claim of $101,816.13 for "Future Additional Costs".

   House Modifications

5. An agreement has been reached between the parties as to the cost of this item.

   Swimming Pool

6. The plaintiff claims an amount of $221,100.

7. At the present time the plaintiffs are tenants in a home owned by the parents of Mrs Elliott. There is a pool at the home which has been heated and enclosed.

8. Mr Elliott does use the pool and it provides him with an opportunity to play with his son.

9. I would allow the costs that have been incurred, enclosing and heating the existing pool. However the claim is for the cost of constructing enclosing and heating a pool in new premises. There is an air of artificiality about that claim having regard to what has actually happened. I would like to hear further submissions before determining this claim.

   Attachment 2 - First Plaintiff - Economic Loss

10. From 19 August 2002 to 26 December 2002 Mr Elliott earnt:

    Gross salary:            $16,544
    Tax:  $3,802
    Net salary:                $12,742

11. In the financial years following the accident Mr Elliott's taxable income has been:

    2003Approximately $8,000/$6,400 net ($535 per week)

    2004$45,696 / $35,647 net ($685.52 per week)

    2005$44,696 / $35,113 net ($675.25 per week)

    2006$49,633 / $38,569 net ($741.70 per week)

    2007$43,436 less Centrelink component $1,878 = $41,558 / $33,177.20 net ($638.02 per week)

    2008During this year the plaintiff worked in the website business and was paid a gross salary of $5,022. He was paid a Newstart Allowance from 14 November 2007 until 5 March 2008 totalling $3,130. At the present time he is receiving the equivalent of the Newstart Allowance because of his participation in the NEIS program.

    2009Mr Elliott has been working as a motivational speaker.

12. Mr Elliott's pre-accident earnings were not large. He was not fully utilising his earning capacity.

13. I think the probabilities are that Mr Elliott would eventually have obtained employment as a pilot with a major airline, although probably not as soon as 1 January 2004 which is the assumption made in his claim.

14. His calculation shows total net anticipated earnings to 28 February 2009 of $412,414.49 from which is deducted his actual total net income since the accident of $161,500. Allowance should also be made for his public speaking income.

15. Mr Elliott claims the sum of $232,415 as his past loss of net earnings since 26 December 2002.

16. This cannot be a precise calculation because I do not know whether or when he would have obtained employment with a major airline and there are many other contingencies. Furthermore, there was a cost of about $30,000 to be incurred in order to obtain the necessary qualifications to obtain the necessary certification.

17. In my opinion the figure of $232,415 should be reduced to $200,000 to take into account the possibility of delay in obtaining employment as a pilot with a major airline and other contingencies. That sum should be reduced by a further $30,000 to $170,000 to take into account the cost of obtaining the qualifications.

18. I would allow the sum of $170,000 for past loss of net earnings.

    Past Loss of Employer Superannuation Contributions

19. The plaintiff claims $24,000 said to be 9% of gross loss of earnings of $360,000. I don't follow the arithmetic. Nine percent of $360,000 should be $32,400.

20. Under this head I would allow 9% of $330,000 namely $29,700 by way of past loss of employer's superannuation contributions.

    Interest on Past Economic Loss and Superannuation Contributions

21. Under this heading I would allow interest on lost earnings of $229,700 (being $200,000 lost earnings plus $29,700 lost superannuation contributions), rather than $232,415 claimed by the plaintiff. Applying the plaintiff's formula the calculation becomes $229,700 x 6.5% per annum x 6.24 years divided by 2.

22. I would allow the sum of $46,583.16.

23. I mention in passing that the plaintiff’s calculation did not add the loss of superannuation contributions of $24,400 to the alleged lost earnings of $232,415.

    First Plaintiff's Total Past Economic Losses

24. Mr Elliott’s claim is $303,948.76.

25. I would allow:

    Net earnings  $170,000
    Superannuation contributions          $29,700
    Interest  $46,583.16

26. That is, I would allow $246,283.16 for past economic loss.

    Future Economic Loss

27. The plaintiff claims that his future earning capacity would have been at least $2,500,000, that his residual earning capacity is $500,000 and he claims $2 million for loss of future income.

28. A precise calculation is not possible because Mr Elliott's career as a pilot and future earnings cannot be assessed with any accuracy. This is a case where I need to do my best to fix a lump sum.

29. As a rough guide the Virgin Blue Pilots Agreement 2007 provides at the present time that the salary of a 737 captain is $2,339 per week net and the salary of a captain of an Embracer is $1,904 per week net. Assuming a salary at a mid point of $2,100 per week net and applying the appropriate multiplier 882 to age 65 at 5%, the result would be $1,852,200. The residual earning capacity of $500,000 should be deducted to arrive at a figure of $1,352,200.

30. There are many contingencies to consider. As well as the usual contingencies the plaintiff may never have obtained employment with a major airline. He may have taken longer than I have assumed before obtaining employment with a major airline. It would have taken an uncertain period before he became a captain. He may not have become a captain. He had not pursued obtaining the necessary qualifications with the utmost haste. He may have retired at 55 rather than 65. On the other hand he may have obtained employment with an international airline and earned a higher salary. In considering whether that was likely one would have to take into account the evidence that Mrs Elliott was unhappy about the demands of the job at Airsouth, although she was supportive of his ambition to work as an international pilot. Mr Elliott's residual earning capacity may be greater than $500,000.

31. After weighing all these considerations in the balance I arrive at a lump sum of $1,200,000.

    Loss of Future Superannuation Payments

32. The plaintiff claims 9% on payments of $2 million. Under this head I would allow 9% of $1,200,000, namely $108,000.

    Attachment 3 - First Plaintiff - Claim for Past Gratuitous Services

33. Mrs Elliott has provided her husband with assistance in many ways. She has showered him, cooked meals, laundered his clothes, cleaned the home, attended to the garden and no doubt done other things.

34. The defendant accepts that in so far as needs of Mr Elliott which were created by the accident have been satisfied by the gratuitous services provided by his parents, he is entitled to recover damages assessed at the commercial value of those services. Van Gervan v Fenton.[116] The services are to be valued as at the date of trial. Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson.[117] Damages are not to be awarded in respect of services performed by Mrs Erika Elliott for her own benefit.

    [116] (1992) 175 CLR 327.

    [117] (1995) 184 LSJS 147.

35. Counsel for the defendant submitted that the evidence does not establish the extent of the gratuitous services provided to Dale Elliott by Mr and Mrs Elliott senior from the time of the accident until they moved to Port Douglas in November 2003. They also submitted that the evidence does not establish the extent of the gratuitous services provided to Dale Elliott by Erika Elliott between November 2003 and September 2006. They have submitted that the reports of Ms Morgan do not show the level of compensation to which Mr Elliott is entitled from September 2006 to the present. They have pointed out that Erika Elliott continued working full-time at a bakery immediately after the accident.

36. Ms Anne Morgan, a registered occupational therapist has provided reports dealing with Mr Elliott's needs. They form Exhibit 103.

37. As the defendant’s counsel pointed out there is a difference between the needs assumed by Ms Morgan and the services which were actually provided. It is the services which were actually provided for which Mr Elliott is to be compensated. Ms Morgan's assumptions as to his reasonable needs may corroborate the requirement for what was provided, but her assumptions do not establish the claim. The claim is to be assessed on the basis of the evidence as to the services that were actually provided.

38. I accept the submission that damages for recompense of gratuitous services are not to be awarded except for services rendered by a parent spouse or child. Wrongs Act 1936.[118] I accept the submission that services provided by others such as Erika Elliott's relatives are excluded.

    [118] s 24H(a).

39. Defendant’s counsel submitted that the award for past services should reflect the evidence and not simply adopt the tables. I accept that as a general proposition. In there are gratuitous services which must have been provided by either Erika Elliott or Dale Elliott's parents of which there is insufficient direct evidence. This is an area where I propose to apply a degree of common sense in order to arrive at the value of services that were obviously provided, notwithstanding the lack of strict proof.

    1.   For the period from 5 March 2003 to November 2003 I allow the full claim 35 weeks at 20 hours of care per week at $32 per hour that is a total of $22,400.

    2.   For the period from November 2003 until 28 February 2009 the plaintiff claims 273 weeks at 12 hours of domestic services per week at $32 per hour - a total of $104,832. There is no evidence which establishes the provision of 12 hours per week. I have already accepted the need for four hours per week domestic assistance and two hours per week for a Handyman/Gardener. Some of those services are not provided gratuitously by Erika but are provided by others. For example, there was evidence of a person who provided cleaning work. The claim that domestic services were provided for 12 hours per week during this period is inconsistent with the evidence there is.

    I assume one hour per day and allow seven hours of domestic or Handyman services per week, at $32 per hour for 273 weeks, that is $61,152.

    3.   For the period from 5 March 2003 to 28 February 2009 the plaintiff claims 310 weeks at three hours of Handyman assistance per week at $3,442 per hour, a total of $32,010.60. I have allowed for Handyman assistance in the seven hours per week allowed in paragraph 2.

    4.   $6,560 is claimed for additional assistance while on holidays. This claim is not supported by the evidence. I make no allowance under this head.

40. Accordingly the total allowed under this head is $83,552.

    Attachment 4 - First Plaintiff - Past Losses Incurred

41. 1.     Special damages have been agreed at $67,166.63. I allow that amount.

42. 2.     The Medicare payment has been agreed at $2,277.90.

43. 3.     The plaintiff claims the sum of $5,000 for loss on the sale of the Astra motor vehicle. The defendant disputes this claim. The vehicle had been purchased about one month prior to the accident. There is no evidence which supports the claim. Relevantly there is no evidence as to the value of the vehicle at the time that it was purchased or at the time that it was sold. The evidence does not establish that the vehicle had to be sold below its actual value or that the loss was due to the accident.

44. I would disallow this claim.

45. 4.     Past Personal Care Needs:

46. This part of the claim was based on its expenditure incurred over the period of six years and two months from the accident until 26 February 2009 that is 320 weeks.

    Manual Wheelchair

47. The plaintiff claims $3,800 for the cost of the manual wheelchair. The defendant disputes the claim on the basis that there is no evidence that the plaintiff has purchased a chair. There is evidence that the plaintiff has two chairs. One was provided by the Hampstead Rehabilitation Centre. There is evidence which supports the purchase of the other chair. I allow the claim for $3,800 for the cost of the manual wheelchair.

    Spare Parts and Maintenance of the Wheelchair

48. The plaintiff claims $250 per annum for spare parts and maintenance for the wheelchair. Mr Elliott's counsel referred to his evidence at T 355, but that does not establish the cost of maintenance. There is no evidence of actual expenditure having been incurred. I assume that some moneys must have been expended and allow six years at $50 per year or $300 under this head.

    Wheelchair Tyres

49. The plaintiff claims $120 for three pairs of tyres at $40 per set. The evidence establishes that claim and I allow $120.

    Wheelchair Cushion

50. The plaintiff claims $700. The evidence at p 354 proves the claim. I allow the sum of $700.

    Wheelchair Gloves

51. I allow the claim for $240.

    Mobile Phone/Phone Credit

52. Claims for $420 and $3,600 respectively are no longer pursued.

    Egg Shell Mattress

53. This claim is agreed at $900.

    Disabled Parking Permit

54. The claim for $30 is allowed.

    Catheters/Milton Tablets

55. The two claims are alternatives. The tablets are used to sterilise used catheters for reuse. Mr Elliott is entitled to reimbursement of actual expenditure rather than assessment of what is reasonable, but the evidence does not establish his actual expenditure. However I am prepared to assume an expenditure of $30 per month for 74 months or $2,220 which I allow for the combination of these items.

    Bed Pads

56. I allow the claim for $487.80.

    Miscellaneous Items

57. There is no dispute as to the following items and I allow $1,892 for Bisalex enemas, $850.80 for lubricant gel, $6,246.50 for Depend undergarments, $310.80 for antiseptic hand gel, and $1,800 for a mattress.

    Laptop Computer and Computer Access

58. I disallow the claim of $3,200 for a laptop computer and $2,454.84 for mobile computer access.

    Car Cleaning

59. I allow the claim for $1,050 for car cleaning. While there is no evidence which establishes the cost, it is not unreasonable that Mr Elliott had his car cleaned every two months at a cost of $20.

    Non Economic Loss

60. The defendant acknowledges that the plaintiff is entitled to an assessment at the upper end of the range. I allow 50 points out of the maximum 60. That converts to $85,500.

    Summary of Claim of Dale Elliott

61. In the circumstance, no worthwhile purpose will be served by totalling the items. I would need further evidence and submissions as to some of the items.

    The Second Plaintiff - Mrs Erika Elliott

62. There are two components to the claim of Mrs Elliott. First, a claim pursuant to s 33(1) of the Wrongs Act 1936 for the loss of consortium of her husband. Secondly, a claim for nervous shock and mental injury suffered as a result of being present at the scene.

63. Mrs Elliott was born in Germany on 27 December 1974 and came to Australia with her family as a child. Prior to the accident she had no health problems. She met Mr Elliott in 1994 and they were married on 26 April 1997. Initially she worked as a waitress and later in bakeries as a shop assistant. She had worked at the same bakery since the plaintiffs returned to live in Adelaide in 1998.

64. The evidence establishes that the plaintiffs had a good marriage and engaged in many activities together. They planned to start a family once Dale Elliott obtained employment as a pilot. Mrs Elliott was supportive of her husband's career plans and had helped finance his training.

65. Erika Elliott was at the home of her parents-in-law at the time of the accident. She learnt about the accident shortly after its occurrence from one of the cousins who told the family that Mr Elliott had an accident and could not feel his legs. She went to the scene and observed her husband on the ground. She started crying and collapsed. She was given a blanket to lie on. She was in shock, very distressed, crying and trembling. She has little recollection of the events.

66. Mrs Elliott was taken to Waikerie Hospital where she remained in a state of shock and collapsed again. After her husband was transported to Adelaide, Mrs Elliott was driven to Adelaide in her Astra motor vehicle by her brother-in-law Ben Elliott.

67. On the night of the accident she briefly visited her husband in the Royal Adelaide Hospital prior to Mr Elliott going into the operating theatre. That night she had little sleep.

68. On the following day she found it difficult to face the reality of what had happened and did not do so until Mr Elliott's parents telephoned her.

69. She remained in a distressed condition following the accident. She returned to work because the family had no other income. She lost 10 to 12 kg in weight in the first two weeks after the accident.

70. While her husband was at the Royal Adelaide Hospital and the Hampstead Rehabilitation Centre Mrs Elliott lived for many weeks with her parents and visited her husband after work.

71. The time following the accident were a stressful time for her. She struggled to go to work and made mistakes. She eventually gave up work at the bakery in about March 2004.

72. In 2005 Mrs Elliott obtained casual work in a school canteen but left that job after a term and a half following an altercation with a workmate.

73. In March of 2006 she obtained employment in another school canteen where she worked up until May 2008. She left because of her pregnancy. She had been working in the canteen four hours a day for five days a week during school term.

74. Mrs Elliott did not seek medical attention until approximately 12 months after the accident when she visited a general practitioner and was diagnosed with a depressive disorder. She was placed on antidepressant medication which she took for six months. She stopped taking the antidepressant medication because she was concerned about the stigma of being diagnosed with depression.

75. She said in evidence that she does not believe that she has coped well with her depression. She still sees the accident every day.

76. Since the accident Mrs Elliott has not socialised and does not invite friends to the family home.

77. Some days she is better than others. On a bad day she stays in bed and cries. She is slow to get dressed and does not go out. She has a bad day about once a week.

78. On occasion she has felt suicidal, particularly when she contemplates the future. Even now that she has a child she still occasionally feels suicidal.

79. Mr Elliott gave evidence of the change in his wife and said that since the accident she has become reclusive and negative. She seems to have lost interest in life.

80. I accept that prior to the accident the plaintiffs had a good marriage with a good relationship and an active sex life. Since the accident the sexual relationship has ceased and the plaintiffs share no intimacy. The plaintiff has lost his sexual function as a result of his injuries. Mrs Elliott has lost her libido and desire to make love to her husband. She told the court she does not find Mr Elliott sexually attractive and she has doubts as to whether the marriage will last. She is unsure as to whether she still loves Mr Elliott. The plaintiffs rarely sleep in the same bed and Mrs Elliott falls asleep on the couch. They often argue. Mrs Elliott blames her husband for their predicament. She has packed her bags and left home, but has always returned shortly afterwards.

81. Mr Ben Elliott gave evidence that the plaintiffs argue and he never sees physical contact between them.

82. Since the accident Mrs Elliott has performed most of the household tasks.

83. Mr and Mrs Elliott now have a son, Jayden, who was born in May 2008. His arrival has been good for the marriage. I think Mr Elliott does his best to have contact with his son, but because of his disabilities Mrs Elliott has had to assume the role of primary carer. Mrs Elliott is undertaking a further IVF program.

1. Mrs Elliott has difficulty coping with the burden of a baby and a disabled husband.

2. When the plaintiffs have gone on holidays Mrs Elliott has most of the responsibility for dealing with the luggage. The task of booking restaurants and hotel rooms falls to her as does the task of laundering bedding if Mr Elliott is incontinent.

3. Mrs Kathleen Elliott described Erika Elliott as fragile and lacking in energy as a consequence of the demands placed upon.

4. Mrs Elliott was seen by Dr Blakemore, a psychiatrist, on 13 July 2004 and again on 4 August 2008. He has prepared two reports dated 17 July 2004 and 5 August 2008.[119]

   [119] Exhibit P125.

5. Initially Dr Blakemore diagnosed an Adjustment Disorder with Depressed Mood together with some Post-Traumatic Stress Feature Disorders. He recommended treatment and noted that Mrs Elliott had not yet come to terms with the accident and the change in their lives.

6. After the second consultation Dr Blakemore thought that Mrs Elliott had improved although he noted that she still had down days. In his opinion she still suffers from depression but formed the opinion that Mrs Elliott's condition is linked to the mental state of her husband and that if he remained well then she would also cope emotionally.

7. Evidence was given by Dr Martin Ewer who examined Mrs Elliott on 7 February 2005. He diagnosed Mrs Elliott as having suffered from a Major Depressive Disorder which had almost resolved. In his opinion the symptoms would have been at their worst in about March 2004. At the time she saw Dr Ewer Mrs Elliott had ceased antidepressant medication and she told Dr Ewer that most of her symptoms had resolved.

8. Dr Ewer has the opinion that the plaintiff was totally incapacitated for work between March 2004 and September 2004. He thought that at the time of the consultation her symptoms had almost resolved.

   Loss of Consortium

9. Counsel for the plaintiffs submitted that upon the basis that Mr Elliott is fully compensated for his need for domestic services and care in the future, an award of damages of $100,000 would be appropriate for loss of consortium.[120]

   [120] Final submission on behalf of the Plaintiffs Dale Elliott and Erika Elliott [420].

10. In South Australia the Wrongs Act 1936 has been amended to provide wives with a remedy for loss of consortium which was formerly confined to husbands.[121] Consortium refers to such things as the comfort, society and assistance of a spouse. The nature of the claim is described in Toohey v Hollier.[122] Consortium it was said "involves a sharing of two lives, a sharing of the joys and sorrows of each party, of their successes and disappointments. In its fullest sense it implies a companionship between each of them, entertainment of mutual friends, sexual intercourse" (Luntz Assessment of Damages for Personal Injury and Death, fourth edition s 10.1.1 referring to Curator of Estates of Deceased Persons v Fernandez (1977) 16 ALR 445 at 452 and Crabtree v Crabtree(No 2) [1964] ALR 820 at 821).

    [121] Wrongs Act 1936 s 33.

    [122] (1955) 92 CLR 618, 624-629.

11. Courts treated claims by husbands as having two components, consortium and servitium. There is no reason why a wife's claim should not be treated in the same way.

12. So far as a claim for services is concerned one needs to be careful to avoid duplication with the cost of voluntary or other expenses for which allowance has already been made in the claim of Mr Elliott. In my opinion the evidence discloses little in the way of loss of services previously provided by Mr Elliott which has not already been dealt with in Mr Elliott's claim.

13. So far as the component of consortium is concerned Mrs Elliott must be compensated for matters such as the cessation of the sexual relationship and the detriment to companionship. The evidence establishes a significant deterioration in what was once a loving relationship.

14. Plaintiffs’ counsel referred to Tooheyv Hollier and pointed out that the claim can lie for impairment of consortium and that it is not necessary to show a complete loss of consortium. They accepted that damages can only be awarded where the loss of consortium gives rise to some actual temporal loss or the deprivation of some advantage which is capable of estimation in money terms.

15. In Mann v Flinders Medical Centre[123] Lander J pointed out the need to take care not to duplicate in a claim for loss of consortium damages for the provision of voluntary services. His honour said:

    A claim for loss of consortium gives rise to a claim for "the material consequences of the loss or impairment of his wife’s society, companionship and service in the home and the expense of her care and treatment incurred as a result of the injury form proper subjects of compensation to the husband"; Toohey v Hollier at 627.

    [123] [1998] SASC 236, 4 June 1999.

16. Lander J noted[124] that it is well settled that the loss of sexual intercourse is part of the temporal loss which may be included in consortium and should be allowed for. Also[125] His Honour noted that the services for which damages are awarded include any domestic services that the male plaintiff previously rendered the female plaintiff.

    [124] [654].

    [125] [655].

17. In Andrewartha v Andrewartha (No 1) (1987) 44 SASR 1 the Full Court emphasised that the plaintiff cannot claim for any loss that does not give rise to material consequences.[126]

    [126] See also Toohey at [625] and Luntz [10.1.3].

18. Quantifying the loss of the sexual relationship is never an easy task, but it must be carried out (Luntz Assessment of Damages for Personal Injury and Death, fourth edition s 10.1.8).

19. Mental distress is not recoverable under this heading.

20. Mrs Elliott is entitled to recover costs incurred in replacing the services Mr Elliott rendered, but the evidence does not disclose anything significant beyond that for which Mr Elliott has already been compensated. As the defendant’s counsel have pointed out there is no evidence of Mrs Elliott having actually incurred expenses.

21. In Mrs Elliott’s case the more significant loss is the loss of her husband's society and companionship.

22. Professor Luntz says of claims by a husband:[127]

    Companionship and advice seem to be regarded as "material" or "temporal" and capable of estimation in money. This would include "aid and comfort". If the wife's injuries make her a less agreeable companion, then the diminution in the quality, as well as the extent, of the companionship may be regarded as a material or temporal loss. However, matters of sentiment are to be put aside and the helplessness of the wife may even make the companionship more dear to the husband. Unlike the matters considered in [10.1.4 (medical and like expenses)] and [10.1.5 (services)], loss of society and companionship is not likely to create an overlap with damages awarded in the spouse’s action under Griffiths v Kerkemeyer in respect of the need for services provided voluntarily.

    [127] [10.1.7].

23. Previous awards of consortium include $15,000 in Mann v Flinders Medical Centre[128] and $27,500 in Kite v Malycha.[129] Those awards are now over 10 years old. In the latter case Perry J referred to the preliminary question as to the period over which the assessment of damages should extend.

    [128] [1998] SASC 236.

    [129] (1998) 71 SASR 321.

24. In the present case the relevant period is the joint lives of the plaintiffs.

25. In Andrewartha v Andrewartha (No 1)[130] the husband of a quadriplegic victim of a road accident claimed damages for loss of consortium including a loss of servitium. The trial judge awarded $185,000 damages for loss of consortium to the husband. The Full Court allowed an appeal from that award and substituted an award of $50,000. That was over 20 years ago. The court referred to the decision of Hogarth J in Markellos v Wakefield[131] in connection with the "blurred line, drawn in earlier High Court cases between the temporal aspects of loss of society and the economic aspects of loss of servitium, on the one hand, and the "spiritual" aspects of loss of society such as distress, unhappiness, sorrow, gloom, sadness and the like, on the other". White J preferred the approach of the New South Wales Court of Appeal in Kealley v Jones[132] which referred to Toohey v Hollier where the High Court said "such elements as mental distress are to be excluded but the material consequences of the loss or impairment of his wife’s society, companionship and service in the home" are to be included in the assessment.

    [130] (1987) 44 SASR 1.

    [131] (1974) 7 SASR 436.

    [132] [1979] 1 NSWLR 723.

26. Andrewartha is authority for the proposition that the spouses damages are confined to the loss of society, for the temporal losses involved there in and for the loss of services to her as a spouse. The pain and suffering, distress and depression, heartache and sorrow, and the mental, emotional and spiritual losses which Mrs Elliott has suffered in the course of her efforts to care for Mr Elliott are not compensable.

27. In Keally Hutley JA referred to Toohey where the court said with respect to the claim for special damage:

    Matters of sentiment or feeling –

    were doubtless not regarded but that is because, speaking generally, special damage is not made out except by some actual temporal loss, the deprivation of some material temporal advantage capable of estimation in money…

28. Hutley JA continued:[133]

    The husband was entitled to damages for the diminution in monetary terms of the comfort and companionship given by the wife. As their Honours (in Toohey v Hollier) said: "... the general conclusion appears to be that such elements as mental distress are to be excluded but the material consequences of the loss or impairment of his wife’s society, companionship and service in the home and the expense of her care and treatment incurred as a result of the injury form proper subjects of compensation to the husband.

    [133] at p 740.

29. White J referred to the likely pain and suffering element in the wife's damages which he estimated to be no more than $225,000 and commented "I find it incongruous that the husband’s derivative action for loss of society might nearly approach or even overtake the wife's award for pain and suffering. If we were to allow the cross appeal and increased the present $185,000, or if we were to permit the award of $185,000 to stand, I think we would be circumventing the restrictions placed on the loss of consortium by the earlier High Court cases and allowing by the back door of consortium what is prohibited by Jaensch v Coffey[134] in ordinary negligence claims". In this case Mr Elliott's award for pain and suffering is limited by the points system in the Wrongs Act 1936. The amount claimed by Mrs Elliott for loss of consortium exceeds the award to Mr Elliott for pain and suffering. In my opinion the points system is not a reason to put a car on claims for loss of consortium.

    [134] (1984) 155 CLR 549.

30. Mrs Elliott seeks to be compensated for the fact that as a result of her husband's injuries she has had no sexual relations with him since the accident, will not be able to have sex with him for the rest of the marriage and she is not able to conceive children naturally with Mr Elliott. They are matters that justify a significant award.

31. Mrs Elliott seeks to be compensated for the fact that she is required to bear a much greater load in relation to the care of children. To the extent that there are services relating to the care of the children which have not been taken into account, I think that is a proper matter to take into account but the evidence does not quantify the services.

32. Mrs Elliott also seeks damages on the basis that she has lost the assistance of her husband when travelling. The evidence does not identify the precise services or quantify them but I think a modest allowance should be made.

33. Taking all these matters into account I allow the sum of $100,000 for loss of consortium. I would like to hear submissions as to the apportionment of that sum between past and future. Any inclination is to distribute the award over the joint lives to arrive at an annual figure.

    Nervous Shock

34. Mrs Elliott is entitled to damages in respect of any psychiatric illness sustained as a result of being subjected to the shock of learning of the accident and seeing Mr Elliott lying on the ground at the scene. Jaensch v Coffey.

35. The evidence establishes that Mrs Elliott was distressed and collapsed at the scene. She has been diagnosed as suffering from a psychiatric condition.

36. The award should not extend to general unhappiness related to the change in her circumstances which can be distinguished from a psychiatric illness resulting from shock.

37. As I have mentioned Mrs Elliott has been diagnosed as suffering from Depression and an Adjustment Disorder with Depressed Mood.

38. Mrs Elliott claims an award of 15 points on the scale set out in s 24AB of the Wrongs Act 1936. The relevant multiplier is $1,710. In addition she claims $60,000 for past economic loss and $6,000 for lost superannuation benefits. For future economic loss Mrs Elliott claims $25,000. Mrs Elliott's medical expenses to date are agreed at $314.  She claims $2,500 for future medical treatment. Finally Mrs Elliott claims $7,800 by way of interest on her alleged lost earnings to date.

39. I accept the submission of the defendant that Mrs Elliott is only entitled to compensation for any period during which she has suffered from a recognisable psychiatric illness.

40. The evidence does establish that she was suffering from Depression and an Adjustment Disorder with Depressed Mood in 2004 and 2005. She has recovered from that illness. At the present time she is not suffering from a recognizable psychiatric illness but there is the risk of a relapse. I take into account the fact that it is now three years since she suffered from the illness. That indicates that the risk of a relapse is slight.

41. She is not to be compensated for general unhappiness resulting from dissatisfaction with her lot in life or from reflecting upon her indisputable misfortune.

42. There is no evidence that Mrs Elliott has required any treatment for depression since 2005. There is no evidence that she will require treatment.

43. The evidence does not permit the period during which Mrs Elliott was suffering a recognizable psychiatric illness to be defined with certainty. The defendant argued that her entitlement is confined to a period of less than 12 months from mid-2004 to the beginning of 2005. I propose to assess damages for nervous shock on the basis that Mrs Elliott has suffered from a psychiatric illness for an undefined period of 12 months. That covers the period from March 2004 to September 2004 plus any further periods which have not been identified. On the basis that her loss was confined to a period of one year I would assess damages for nervous shock as follows:

    · 10 points pursuant to s 24AB of the Wrongs Act 1936 - $17,100

    ·    Net loss of income for 12 months - $25,000

    ·    Loss of superannuation benefit - 10% of $25,000 - $2500

    ·    Past medical expenses - $314

    ·    Interest on lost earnings 6.5% of $25,000 - 5 years - $8,125

44. Mrs Elliott has no immediate plans to return to work. I am not satisfied that she will lose income in the future as a consequence of a psychiatric condition caused by the nervous shock of the accident. I make no allowance for future loss of earnings.

45. Mrs Elliott's medical expenses to date have been minimal. There is no evidence that she is likely to require psychiatric treatment in the future but it is a contingency for which I allow the sum of $1,000.

46. Mrs Elliott is entitled to interest on the loss of consortium. I would need to hear submissions as to the proper way to calculate this component.