Fletcher v Neal

[2022] NSWDC 595

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Fletcher v Neal [2022] NSWDC 595

Hearing dates:

19 – 22, 25 – 26 July 2022

Date of orders:

30 November 2022

Decision date:

30 November 2022

Jurisdiction:

Civil

Before:

Ainslie-Wallace ADCJ

Decision:

See paragraph [155] for orders

Catchwords:

TORTS – negligence – motor vehicle accident – plaintiff in lifetime care and support scheme; DAMAGES – assessment of damages

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B(1)

Evidence Act 1995 (NSW), s 63

Motor Accident Injuries Act 2017 (NSW), s 4.7

Cases Cited:

Fox v Wood [1981] HCA 41

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58

Category:

Principal judgment

Parties:

Edwin Fletcher (Plaintiff)
Marcus Neal (Defendant)

Representation:

Counsel:
Mr A Stone SC with Ms J Magee (Plaintiff)
Mr D O’Dowd (Defendant)

Solicitors:
Carroll & O’Dea (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2021/293520

Publication restriction:

None

Judgment

1. On 28 August 2018 at about 7.20 pm, the plaintiff, Edwin Fletcher was injured on the Princes Highway near Milton, NSW, when his motorcycle was struck from behind by a Ford utility driven by the defendant, Marcus Neal. As a result, the plaintiff sustained serious physical injuries, including a traumatic brain injury. He has been accepted into the Lifetime Care and Support Scheme.

2. The plaintiff’s damages for non-economic loss have been agreed at $425,000. It is also agreed that the plaintiff has been left without any residual earning capacity.

3. The remaining issues for determination then are, first, liability, and if liability is established, then secondly, whether the plaintiff had to any degree contributed to the accident, and thirdly, for the purpose of assessing economic loss, what would have been the plaintiff’s most probable earning capacity but for the accident.

Liability

4. Many of the underlying facts and circumstances of the accident are undisputed.

5. On the day of the accident, the plaintiff, his partner Ms Tanya Ladmore and several other people had been on a South Coast motorcycle ride from Ulludulla to Wollongong and back. Not all of the group of riders was known to the plaintiff. He had been invited to take part in the ride by a friend, Craig Norris. Amongst the group was Cameron Wayte (then known as Cameron Phillpotts) and Harley Simpson.

6. The group was riding back south along the Princes Highway towards Ulludulla when the accident occurred. The highway at that point comprises a long and straight stretch.

7. The plaintiff said that at this point the group was strung out along the roadway and he and Ms Ladmore were a little behind the others as she was a learner rider and was riding at a slower speed.

8. At a point heading south approaching Milton, the plaintiff noticed that two of the other riders in the group, Mr Wayte and Mr Simpson, had stopped their motorcycles in the breakdown lane on the side of the southbound road. The plaintiff and Ms Ladmore rode past them. Through Bluetooth communication, the plaintiff told her that he was going to go back to see if they needed any assistance. Ms Ladmore rode on.

9. Having ridden past the two other riders, and in order to turn around and head north, the plaintiff made a right turn off the Princes Highway into a side street, made a U-turn in that street, and then re-joined the highway heading north.

10. At about that time the defendant was driving his vehicle north on the Princes Highway at a point further to the south of the plaintiff’s location.

11. A collision occurred between the defendant’s utility and the plaintiff whilst he was seated on his motorcycle when the front left corner of the defendant’s utility struck the rear of the plaintiff’s motorcycle. As a result, the plaintiff’s motorcycle fell in front of the utility and became wedged under the front of the defendant’s utility. The vehicles then travelled some distance before an ensuing fire engulfed them. Both vehicles were extensively damaged. The plaintiff was thrown off the motorcycle in that collision and he landed on the road at a point ahead of the two vehicles.

Review of relevant evidence as to liability

12. The plaintiff said that on turning around and re-joining the northbound lane of the highway, he had ridden his motorcycle north and stopped about 20 metres south of the other two riders who were on the opposite or eastern side of the road facing south. The plaintiff said he indicated to the left and pulled over into the breakdown lane of the road and stopped. He said he had not switched off the ignition and his left indicator remained on and flashing. The plaintiff said that his motorcycle was within the breakdown lane beside the road.

13. From where the plaintiff had stopped his motorcycle he said that he could see both of the other riders who had alighted from their motorcycles. He saw that they were looking at one of the motorcycles. The plaintiff said that he intended to pull back onto highway and ride a further distance to the north, past where the other riders had stopped, to turn right into Pointer Gap Road. He intended to turn around in that road and re-join the highway and ride south to where the other riders had stopped.

14. The plaintiff was not particularly anxious to get to the two other riders because he saw that both riders appeared to be alright, they were standing up, no-one was on the ground, and there was no impact and no fire. The plaintiff said he was going to go back to where they were stopped in order to throw some light on the scene and “… just make sure no one runs up their butt”, using what I infer to be his cycle headlight for illumination.

15. The plaintiff said when he was stopped in the breakdown lane he was watching for traffic behind him in his rear vision mirrors. He was waiting for a gap in which to come back onto the highway and drive further north but he was struck by the defendant’s utility before he had the chance to move out of the breakdown lane onto the highway.

16. The plaintiff estimated that he was stopped for a minute or less in the breakdown lane before he felt “… a large gust of wind and then just an impact”. While he recalled cars coming from the south, he did know which vehicle had struck him.

17. One of the riders stopped on the opposite side of the road was Mr Cameron Wayte. He had not met the plaintiff before that day and he did not he speak to him at any time after the accident.

18. Mr Wayte said that on the return trip south he saw Mr Simpson stopped in the breakdown lane on the southbound side of the road and he stopped to see what was happening. Mr Wayte pulled into the breakdown lane, stopping behind the other motorcycle, put on his hazard lights and took out his phone to use as a torch. He and Mr Simpson stood on the eastern edge of the road, that is, the edge furthest away from the highway, looking at Mr Simpson’s motorcycle which was between them and the roadway.

19. Mr Wayte said he became aware of a motorcycle approaching from the south first by hearing the sound of a motorcycle, and then he saw a single headlight of a motorcycle in the centre of the northbound lane. He did not know who the rider was. He saw the motorcycle’s left indicator come on. He saw the motorcycle slow down and turn off the road onto the shoulder. He said the motorcycle continued slowly travelling along the breakdown lane. He saw the rider’s left indicator change to indicate right while it was still moving slowly forward in the breakdown lane. Mr Wayte estimated that he watched the motorcycle on the road shoulder for about 5 to 10 seconds.

20. Mr Wayte said that he saw the approach of the defendant’s utility when it was at a “reasonable distance” behind the plaintiff’s motorcycle.

21. Mr Wayte said that through the headlights of a car travelling south along the highway, he saw the defendant look in the direction of where he and Mr Simpson were standing on the other side of the road and said (T150.32):

“… I could see the driver look in myself and Harley’s direction before it proceeded to, sorry, I’m just trying to think of the appropriate word. I wouldn’t say swerve, like list, I think, would be the appropriate word off into the north bound shoulder.”

22. Mr Wayte saw this when the utility was in line with his position or a “little bit further past...”. He said the utility obscured his view of the plaintiff and he then lost sight of the motorcycle which was at that time still moving in the breakdown lane. He heard the sound of the collision and said:

“Next there was sparks. The vehicle that impacted the motorcycle moving over towards the right back into the lane.”

23. When Mr Wayte was asked what else he saw after the sound of the collision Mr Wayte said:

“I also saw the rider up above the bonnet level of the vehicle. I could see over the top of the vehicle and the rider was in the air.”

24. Mr Wayte saw the utility stop about 30 to 50 metres ahead of where he was standing. He saw that it was on fire. He ran to the wreckage and saw the plaintiff lying on the northbound road a few metres in front of the burning vehicles. He moved the plaintiff further away from the burning vehicles.

25. As to the sequence and timing of what he saw, Mr Wayte said after he saw the utility “list” into the breakdown lane, the accident happened “reasonably quickly” afterwards, he said it was more than a few moments and agreed that it may have been a couple of seconds. When pressed by counsel for the defendant to agree that the time he had in which to see the defendant’s utility before the collision was “very very brief …probably in the order of a couple of seconds”, Mr Wayte said:

“ … I could not accurately tell you times. Everything slowed down, sped up. I could not tell you time frames.”

26. The defendant contended that Mr Wayte’s evidence was “… incorrect and unreliable, and ought not to be accepted”. The basis for this submission was twofold. First, Mr Wayte was “focussed” so hard on trying to identify the rider of the motorcycle that he did not see the defendant’s utility until it came into his peripheral vision and thus he only had a very short time to see the defendant’s utility. Secondly, the event occurred so quickly that he was incorrect in his description of what he saw.

27. I do not accept either of those submissions, nor do I find Mr Wayte’s evidence to be inherently improbable, incorrect, or unreliable.

28. While Mr Wayte said that when he saw a motorcycle approaching from the south he looked to see who the rider was, at no time did he say it was his only, or even his main focus to the point that he was oblivious of the approach of the defendant’s utility. Nor does his evidence readily permit that inference. Mr Wayte said that he was aware of the approach of the defendant’s utility when it was a reasonable distance from the plaintiff’s motorcycle. He did not accept the corrections of the defendant’s suggestion that the utility emerged from his peripheral vision almost immediately before the collision. I see no reason not to accept his evidence as to when he first saw the approach of the defendant’s utility.

29. Mr Wayte did not agree with the proposition that the incident occurred so fast and was so dramatic that his recollection of seeing the utility “list” was wrong. While it is clear that the event he witnessed was distressing, there is nothing in the evidence to suggest that the distressing nature of the event or the speed at which it occurred caused him to mistake what he saw.

30. There is a discrepancy between the plaintiff’s account that he was stopped in the breakdown lane when he was struck by the defendant’s utility, and that of Mr Wayte, who said that the plaintiff was moving slowly north in the breakdown lane when he last saw him.

31. In this regard, I prefer the evidence of Mr Wayte. First, he was a bystander observing the scene being played out on the other side of the road and, I am satisfied had a clear view of the plaintiff on his motorcycle. Secondly, the plaintiff sustained a traumatic brain injury in the accident and had a period of post-traumatic amnesia. Dr Bentivoglio, a neurosurgeon who examined the plaintiff for the purpose of these proceedings, noted that as a result of the accident the plaintiff has “has memory issues” and is “forgetful”. On a number of occasions during his evidence when being questioned about statements he was reported to have made to a doctor and to an investigator, the plaintiff said that he had trouble understanding, or was confused.

32. Such discrepancies between Mr Wayte’s account and that of the plaintiff do not cause me to doubt the plaintiff’s credibility nor was it submitted that it would. However I do find that when Mr Wayte last saw the plaintiff on his motorcycle, he was travelling slowly north in the breakdown lane.

The defendant’s evidence

33. The defendant did not attend to give evidence and it was agreed he was “unavailable” for the purposes of s 63 of the Evidence Act 1995 (NSW). Instead, a statement made by him in March 2022 (Ex 2) was tendered.

34. In that statement, when addressing the circumstances of the accident, the defendant said:

“19. … all of a sudden a motorcyclist who had been on the left hand side of the Princes Highway, pulled out in front of me. He turned in front of me…”

35. The defendant’s statement also went on to say:

“21. The motorcycle rider attempted to make a U-turn in front of me. I saw the rider of the motorcycle in my lane and his bike was sideways to me. When I saw this, I would estimate my distance from him to be about 10 metres away, perhaps less. One minute he was not there, the next minute he was in front of me.

25. When I saw this motorcycle, it was sideways to the direction I was travelling.”

36. There was a challenge as to the weight to be accorded to the defendant’s account. That assessment is not without its difficulties.

37. The defendant’s account contains what are agreed to be factual inaccuracies, for example, as to the weather conditions at the time of the accident and how many motorcyclists were stopped on the other side of the road to his direction of travel.

38. Perhaps the length of time between the accident in August 2018 and when the defendant made his statement, March 2022, has had an effect on his recollection. The discrepancies are in relation to matters peripheral to the issue of how the accident occurred and of themselves do not cause the defendant’s evidence to have no weight, but do suggest that his recollection of the events of that evening are not completely clear.

39. However, rather than giving an account of his own observations as would ordinarily be expected, the defendant adopted a somewhat adversarial role in which he sought to repeat and refute the evidence of other witnesses. For example he said:

“28. The allegation by a witness stating that the indicator on the motorcycle I had the collision with, was first indicating left and then he indicated right and that the motorcyclist was positioned on the western shoulder as I rode past this witness is not true. I disagree with this allegation.

…

25. When I saw this motorcycle, it was sideways to the direction I was travelling. This rider has alleged that he was in the emergency land and dragged him onto the northbound lane of the Princes Highway. There were burn marks on the road which show this not to be true.”

40. It was never suggested to Mr Wayte, to whose statement paragraph 28 clearly refers, that he was in any way in error about those observations at least not so far as the motorcycle’s indicators was concerned.

41. The adversarial nature of the narrative in the statement tends to suggest that the defendant was at pains to advocate on the question of liability for the accident rather than giving a straightforward account of what he recalled. This must have a discounting effect on the weight to be given to his evidence.

42. Finally, it is noted that the defendant was unable to be questioned on his account by the plaintiff’s counsel and the discrepancies explored or his recollection challenged.

43. Counsel for the defendant submitted that the Court should accept the defendant’s evidence that at the time of the collision he was wholly within his lane (paragraph 30), that he was focussed on the road ahead of him, and had slowed down when he saw the motorcyclists on the other side of the road (paragraph 18).

44. Counsel for the defendant urged the court to “parse” paragraphs 21 and 25 of the defendant’s statement to give them a meaning quite different from what appears on their face. It was suggested that what the defendant actually meant was that he saw the plaintiff sideways in front of his utility after the collision rather than the plain meaning of his words that he saw the plaintiff in that position before the collision. It was suggested that perhaps the defendant’s account of the plaintiff being sideways to his utility was a reference to the movement of the motorcycle after it was hit by the utility.

45. I cannot accept that submission, the words used by the defendant are plain and clear in their meaning which is that before the collision and about 10 metres in front of him he saw the plaintiff’s motorcycle was sideways to his utility. These words are consistent with the defendant’s assertion that the plaintiff turned his motorcycle in front of his utility.

46. I am unable to attribute a meaning to the defendant’s account other than as appears on its face, that is, that the plaintiff had turned his motorcycle in front of the defendant’s utility before the impact between the two vehicles.

47. The frailties in the defendant’s account persuade me that although the defendant asserted that at all times he was driving in the centre of the northbound lane, I prefer Mr Wayte’s evidence that he saw the defendant’s utility “list” into the breakdown lane and then correct to move back into the centre of the road. Mr Wayte was a dispassionate bystander, his evidence about what he saw is credible and I accept it.

48. Mr Wayte’s evidence however does not extend to having seen the point of impact between the motorcycle and the utility.

The dispute as to how and where did the collision occur?

49. At the commencement of the hearing it was suggested that there were four scenarios as to how and where the collision occurred:

1. The plaintiff was stationary on his motorcycle in the breakdown lane facing north when he was struck from behind by the defendant’s utility;

2. The plaintiff was riding slowly north in the breakdown lane when he was struck from behind;

3. The plaintiff was pulling out onto the northbound roadway in front of the utility and the front of the utility struck the rear of the motorcycle;

4. The plaintiff was performing a U-turn across the road and was struck side-on by the defendant.

50. Those scenarios must be considered in light of the expert evidence, which had its limitations.

Expert evidence

51. Both parties engaged experts in accident reconstruction, Mr Glen Urquhart for the defendant and Mr Nigel McDonald for the plaintiff. In their respective analyses the focus of their attention was the nature of and point of impact between the two vehicles. They conferred and produced a joint report in which many issues were agreed or resolved. They gave concurrent evidence in the hearing.

52. In their preliminary reports each expert was asked to consider two scenarios: whether the impact between the two vehicles occurred when the plaintiff performed a U-turn from the breakdown lane in front of the defendant’s utility, or whether the impact occurred while the motorcycle was in the breakdown lane. Mr Urquhart was later asked to consider a third scenario, that is, whether the impact occurred when the motorcycle, in the breakdown lane pulled out in front of the defendant’s utility to join the northbound lane.

Was the plaintiff performing a U-turn across the highway at the point of impact with the defendant’s utility?

53. The scenario of the plaintiff being struck whilst performing a U-turn can be readily rejected. The experts, having reviewed the physical damage to the motorcycle and, on consideration of the nature and position of the plaintiff’s injuries, agreed that the evidence did not support a side-on collision as must necessarily follow from the suggestion that the plaintiff did a U-turn in front of the defendant’s utility.

53. Turning to the plaintiff’s evidence on this point, it was suggested to him that there was no reason why he would ride 500 metres north up the highway to use a side road to turn, only to ride 500 metres back to get to where the other riders were stopped, rather than execute a U-turn on the roadway from his position.

54. On this point, the plaintiff said:

“… I would never do a U turn on a highway where there’s traffic going 100 kilometres an hour because on a motorcycle you are very slow to do a U turn. … In a car you can put your foot down and turn fast. … say you misjudge and you fall over on your motorcycle. A car is going to come and pin you…”

56. The plaintiff continued with that explanation and pointed to how he had earlier changed direction from riding south to riding north, by entering a side road and turning there.

57. The only evidence on which this suggested scenario could be based was that of the defendant, as given in paragraphs 21 and 25 of his statement, which I do not accept as being accurate.

58. Given the undoubted riding experience of the plaintiff and the considerable force of his explanation why he would not have carried out a U-turn on the highway, together with the evidence of the accident reconstruction experts, I am satisfied that the plaintiff did not attempt to perform a U-turn across the highway from where he was stopped in the breakdown lane, nor does the physical evidence support the contention that the motorcycle was side-on to the defendant’s utility when it was struck.

59. There are three remaining scenarios requiring consideration. Obviously (1) and (2) above reflect the variation in the accounts of the plaintiff and Mr Wayte as to whether the plaintiff was stopped in the breakdown lane or was slowly moving within it at the time he was struck by the defendant’s utility.

60. As earlier indicated, I accept Mr Wayte’s evidence on this point. It is not glaringly improbable.

61. Ultimately, the question for determination is whether, as was argued for the plaintiff, the impact occurred when the plaintiff was wholly in the breakdown lane and the defendant’s utility drifted partially into the breakdown lane or whether, as the defendant argued, the collision occurred when the plaintiff attempted to merge from the breakdown lane into the northbound lane and had, it was argued, failed to see or perhaps failed to allow himself enough time to move ahead of the defendant’s utility and was struck by the utility.

A measure of agreement between the experts

62. Before addressing the competing contentions, it is useful to set out the matters on which the experts agreed.

63. The sequence of events that occurred after such a rear-end collision were agreed. After the initial impact, the motorcycle would have been propelled upright for a time until it rotated sideways before falling to the roadway and becoming wedged under the front of the utility. At impact the plaintiff was flung into the air and landed on the roadway ahead of the final resting point of the two vehicles.

64. In the collision the front left corner of the defendant’s utility came into contact with the rear of the plaintiff’s motorcycle. Neither expert could say precisely in which direction the motorcycle’s front wheel was facing at the moment of impact but agreed that it was either “… on the road alignment or on a slight angle as if the be (sic) merging changing lanes into the northbound.” The experts agreed that the evidence did not allow them to distinguish between an “in-line” rear impact and a slight angle as if merging.

65. The experts agreed that there was no physical evidence to identify the point of impact between the two vehicles.

66. Neither expert saw tyre scuff marks to show a point of impact although each expert said that they would expect there to be such marks. Had the motorcycle been struck on the shoulder, they would have expected to see scuff marks there but, by the same token, neither were there any observable scuff marks on the northbound road lane. Thus, they agreed the absence of scuff marks did not assist in determining the point of impact.

Gouge mark D

67. Both experts visited the site of the accident and each identified a long gouge mark in the northbound road surface running approximately south to north. The gouge while broadly straight, is slightly angled to the right and moves half a metre towards the centre of the lane over a distance of 15 to 20 metres.

68. This mark, identified as “D” in the evidence, was accepted by both experts to be related to the accident and most likely to have been made by the foot peg of the motorcycle being pressed into the road surface by the weight of the utility whilst being dragged along underneath it.

69. No similar gouge marks were observed on the surface of the road shoulder. The experts agreed that this indicated the motorcycle did not fall to the ground in the shoulder, but again the experts agreed that this does not define the point of impact.

70. The gouge mark “D” ends short of the final resting position of the motorcycle and utility which Mr Urquhart considered represented the slowing of the vehicles and a change in contact with the road. He thought it possible that whatever part of the motorcycle was causing the gouge could have broken off or worn away.

71. Both experts agreed that it was not possible to be certain that the start point of the gouge represented the initial point of contact between the side of the motorcycle and the roadway.

“Q. …or is it possible that the bike has gone down before the start of gouge, but the [gouge mark] is the point where the [utility], in effect, gets on top of the bike to agree [sic to the degree] that it’s pressing the peg down in and making that gouge mark?” : T321

72. Mr Urquhart agreed and said that the start of the gouge mark is the point of “maximum engagement between the car and the motorcycle on the road” (T321.23), and it was at this point that the sparks were generated. However, he continued and said that it was not known if before that point, the motorcycle was sliding for a period of time before reaching that point, there could “possibly” have been contact before then: T322.

73. The experts agreed that the motorcycle was struck “at some point south of mark D and fell to the roadway to produce mark D”: (Joint report 1 June 2022, page 18, question 17). In their joint report neither expert attempted to further identify the point of impact.

Determining the point of impact

74. In an effort to determine the point of impact, both experts were asked, in effect, to extrapolate back from the commencement of the gouge mark “D” to suggest where the collision most likely occurred.

75. That exercise involved an assessment of the probable time between the creation of gouge mark “D” and the associated sparks, and the impact between the two vehicles and, from that, the likely distance from the point of impact to gouge “D”, which also had to take into account the speed of the utility. Neither could be precise on that question, although they concluded that the utility was not likely to have been exceeding the speed limit of 100 kph.

76. While the experts agreed on the movement of the motorcycle after being struck, how long it might take for the motorcycle to fall and rotate under the utility after the collision, was not able to be accurately identified. Each agreed that the assessment of the time in which the motorcycle may have been upright after the impact was not the subject of any studies or other empirical evidence which may be because, as Mr McDonald said, there are so many variables that can operate to affect that time.

77. The period of time involved in this sequence was described as a “short time”. It could be “… a fraction of a second or it may be a second…” (T254.30). Mr Urquhart agreed and said:

“…we’ve used the phrase consistently through the reports, a rotation that’s rapid. Rapidly rotates. It’s not rotate and then fall, it might be rotate and fall it might be slightly fall as it’s rotating. We …don’t know. It’s a short time frame though I agree.” (T354.45)

Sparks

78. In a further effort to identify the point of impact, each expert was taken to Mr Wayte’s evidence about seeing sparks after hearing the noise of the impact.

79. The experts both agreed that the sparks were caused by the pressure of the utility on the motorcycle which created mark “D”. They agreed that the sparks from that pressure would appear close in time to the point of impact but each pointed out that the distance from the point of impact to “D” would depend on a number of matters, some of which were unknown, for example the time taken from impact to the motorcycle falling under the utility and pressed down sufficiently to create the sparks and the gouge.

80. In cross examination, Mr Wayte agreed with the proposition:

“You saw the sparks immediately after the impact and about the same time as you saw the rider emerge above the roof.”

81. Considerable effort was put into seeking to refine Mr Wayte’s acceptance of the word “immediately” to seconds or parts of seconds. Neither expert was prepared to extrapolate from those ordinary words to something scientific saying it was impossible to be precise. Indeed, Mr Wayte said himself that it was impossible to accurately identify times, saying:

“Everything slowed down, sped up. I could not tell you time frames.”

82. Mr McDonald said that if the sparks were observed close in time to the sound of the impact, the time between impact and sparks:

“…sounds like we’re looking at a fraction of a second, like in the order of half a second, potentially.” (McDonald at T263)

83. Converting time to distance if there was “less than half a second between the sound of the impact and the observation of the sparks”, they would expect the point of impact to be 10 to 15 metres south from gouge mark “D”.

84. Further complicating any attempt to identify the point of impact based on Mr Wayte’s recollection of the event is frailty of memory. Each expert commented on the difficulties a witness might have in remembering how long an event seemed to take compared with objective evidence of the time actually taken in the event. The experts identified the truism that when an event occurs quickly, a witness can have difficulty in correctly recalling the sequence of events.

85. Equally, considerable reliance was placed by the defence on the exact sequence of events as observed by Mr Wayte, as being a means from which the point of impact could be ascertained. The defence argued that seeing the plaintiff’s body in the air “silhouetted” in the sparks, meant that there was a very short time between impact and the commencement of gouge “D”. Mr McDonald agreed, but qualified it as being subject to what was meant by a “very short time”.

86. Each expert however pointed out that in determining the point of impact by reference to the time between events had to take into account the speed of the utility. Mr McDonald noted that even in a short time, given the utility’s estimated speed in the order of 100 kph, it would still involve a distance, of 12 metres per second.

87. The problem with attempting to identify the point of impact back from gouge mark “D” and based on Mr Wayte’s sequence of events, was perhaps illustrated by an earlier statement of Mr Wayte which was put to both experts by the plaintiff’s counsel. In that account Mr Wayte described the sequence of events as him hearing the sound of the impact then seeing the plaintiff’s body in the air, after that he described seeing the utility move back towards the northbound lane and then a trail of sparks.

88. It was agreed by both experts that if this description of events by Mr Wayte was accurate, then the plaintiff’s body was thrown into the air before the utility moved back into the lane and then the sparks occur which, is in line with gouge mark “D”.

89. Thus, as counsel for the plaintiff put to both experts:

“And that, if this sequencing is correct, we can put aside all of the reverse engineering discussions from yesterday, which were contingent upon sparks being much more closely aligned with the body in the air and leaving out the step of the sideways movement of the vehicle”: T340

In the shoulder or on the roadway?

90. Mr McDonald’s opinion was that gouge mark “D” was consistent with the impact being either in the shoulder or in the lane, whereas Mr Urquhart said that if the motorcycle was struck in the shoulder the motorcycle would fall in or near it and he would expect to see gouge marks in or near the shoulder. He said the position of gouge mark “D” in the northbound lane means the point of impact was more likely to be in the northbound lane, and observed that the gouge does not curve which shows that the defendant did not swerve post impact. Mr McDonald disagreed and noted that there was a slight curve in the gouge, it commenced 1.56 metres from the edge and moved to 1.96 metres from the edge. He said that 1.56 metres from the edge line was about the width of the utility and said that in his opinion the utility most likely moved to the right before the motorcycle fell to the road surface, and said the absence of marks on the road before gouge mark “D” showed the motorcycle was in the process of falling.

Diagram 5.11

91. A considerable amount of time was spent in discussion of a diagram included in Mr McDonald’s report.

92. During his visit to the site of the accident, Mr McDonald saw three roughly diagonal marks extending from the road shoulder and ending near the start of gouge mark “D”. He considered that the marks might represent where the motorcycle, having been struck, would have fallen in the shoulder and moved across to make gouge mark “D”. The diagram, Figure 5.11 appears under the heading “Position of Impact Across the Roadway” and refers to the three marks as “A”, “B” and “C”. These marks had not been seen by Mr Urquhart during his inspection, but nothing turns on that. Mr Urquhart did however think that they were unrelated to the accident, a position eventually adopted to a degree by Mr McDonald, although he was not prepared entirely to discount that mark “B” might be associated with the accident.

93. In the diagram, Mr McDonald postulated the movement of the motorcycle from a point of collision on the road shoulder and being on the ground at the position of the three marks, “A”, “B” and “C”, across the road to the commencement of “D” after the collision.

94. Mr Urquhart was of the view that if the three marks, “A”, “B” and “C”, reflected where the motorcycle landed on the road, the motorcycle and the utility would have been unable to move across the road to the point where mark “D” commenced in the distance between the marks. He said the distances involved, required a move sideways across the road to a point which was in effect a half-a-car width in a half-a-car length. In short, he said that the three marks, “A”, “B” and “C”, could not sustain an argument that the utility was in the shoulder when it hit the motorcycle: T268.

95. Mr McDonald agreed with Mr Urquhart’s evidence about the distance necessary to move between the three marks, “A”, “B” and “C”, to point “D”, and said that for the three marks to be associated with the point of impact, the motorcycle would more likely have been on the edge line between the breakdown lane and the northbound lane, or potentially into the lane rather than being entirely in the shoulder: T271. The point of contention between the two experts in relation to this diagram was not where the impact occurred but the association of the three marks, “A”, “B” and “C”, with the collision and the point at “D” where the sparks were created. Neither relied on the diagram as showing the point of impact between the motorcycle and the utility.

96. Both experts agreed that these three marks, whatever their genesis, did not affect their fundamental conclusions about mark “D” and the mechanics, and effect of the collision on the motorcycle.

97. In the result, the experts agreed that the longer the motorcycle remained upright immediately after the impact and before rotating and falling underneath the utility, the longer it had to move laterally from the shoulder of the road to finally reach mark “D”: T318.

98. Counsel for the plaintiff put this question to both experts in relation to the point of impact and mark “D”:

“If the motorcycle has remained upright for a second and travelled somewhere between 20 and 28 metres over that period of time that it remains upright, does that mean that there is sufficient time and space, at least in terms of lateral movement, for it to have been off the road to begin with.”

99. Mr McDonald agreed and, having clarified for Mr Urquhart that “off the road” meant outside the white fog line, he too agreed.

100. The recognised difficulties in translating or interpreting words such as “immediate” and “short time” to seconds or parts of them; the difficulty of a witness ascribing a time to the occurrence of an event and equally remembering the correct sequence of it, and particularly the absence of any empirical evidence to assist the experts in determining how long the motorcycle remained upright before rotating and falling under the utility, have the effect that the experts cannot say where the point of impact was.

101. In short, whether the impact occurred in the breakdown lane the devolved to how long the motorcycle remained upright after impact, whether a half a second or a second, in circumstances where neither expert could offer an opinion based on their training study or experience.

102. Their evidence does not assist me in determining this issue: See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

103. I now turn to a consideration of the two competing scenarios.

Did the plaintiff move out of the breakdown lane into the path of the defendant?

104. The experts agreed that, so far as the plaintiff’s capacity to see the defendant was concerned, the lights of the approaching utility would have illuminated the plaintiff’s motorcycle and the surrounding area at a time before the defendant could see the plaintiff on the shoulder. As the utility neared the plaintiff the illumination would become brighter and the plaintiff would have been aware of the approach of the utility from when it was 100 metres away from him. It was said that he would have had 4 seconds in which to become aware of the approach of the defendant’s utility, or longer if the defendant was travelling at a speed less than 100kph.

105. The plaintiff’s unchallenged evidence was that whilst he was waiting on the shoulder of the road he used his rear-view mirrors to watch for traffic coming from behind him.

106. As I have earlier found, the plaintiff’s evidence supports a finding that he was a cautious and careful rider, never having had an accident in many years of motorcycle riding.

107. While it is possible that, notwithstanding the plaintiff’s evidence that he was watching for traffic behind him, he either pulled out heedless of the defendant’s approach or misjudged the distance available to him to do so and pulled in front of the defendant, in my view that scenario is improbable. I am not persuaded that the plaintiff moved from the breakdown lane into the path of the defendant and in doing so was struck by the defendant’s utility.

Findings as to the circumstances of the collision

108. Having accepted Mr Wayte’s evidence that moments before hearing the sound of the impact he saw the plaintiff’s motorcycle in the breakdown lane and he saw the defendant’s utility move or drift from the carriageway into the shoulder area, I am satisfied that it is more probable than not that it was this action, that is, the movement of the defendant’s utility and its change of direction into the breakdown lane, that caused the collision with the rear of the plaintiff’s motorcycle.

109. There was no evidence to suggest that the defendant was travelling in excess of the applicable speed limit of 100 kph although the experts agreed that it was not possible to arrive at a precise estimate of speed. Nor was there any evidence to suggest that the defendant had braked heavily before the impact.

108. At a point where the motorcycle would have been visible to the defendant, which was said to be well before 50 metres (being the range of the utility’s head lights) and given the illumination of the plaintiff and his motorcycle, had the defendant been looking ahead, the experts agreed he would have seen the plaintiff’s motorcycle. The experts agreed that there was room for the defendant to move across the lane to avoid the plaintiff in the shoulder area even if the motorcycle was on the line between the shoulder and the northbound lane.

109. Both experts agreed that there was no evidence that the defendant had swerved or moved within the lane to avoid contact with the plaintiff. Absent such evidence I am satisfied that the defendant did not see the plaintiff in the shoulder area of the road until it was too late to avoid a collision. This is consistent with the defendant’s evidence that he did not see the plaintiff until he was 10 metres away from him.

110. Thus I conclude that the plaintiff was wholly within the breakdown lane travelling slowly northward when his motorcycle was struck from behind by the defendant’s utility which had drifted into the breakdown lane in circumstances where the defendant had not been keeping a proper lookout and did not see the plaintiff until just before the collision by which time it was too late to avoid a collision.

Was the collision due to the defendant’s negligence?

113. To establish negligence the plaintiff must satisfy the mandatory requirements of s 5B(1) of the Civil Liability Act 2002 (NSW). That is whether the risk that eventuated was foreseeable and of which the defendant knew or ought to have known; the risk was not insignificant and, in the circumstances a reasonable person would have taken precautions against the risk of harm.

114. While the experts considered that the plaintiff moving slowly on his motorcycle in the breakdown did not constitute a significant risk, they agreed that had the defendant been looking ahead as he drove, he would have seen the plaintiff well before the 10 metres he said was the first time he saw him and would have recognised the risk of there being a person within the breakdown lane.

115. Had the defendant been keeping a proper lookout and kept his utility wholly within the lane, it is probable that he could have avoided the collision with the plaintiff and the consequent serious injury which was bound to occur when a heavy utility strikes the back of a slow moving motorcycle.

116. The plaintiff’s motorcycle was well lit and obvious in the breakdown lane. There was sufficient width in the road surface for the defendant, had he seen the plaintiff, to move across the lane to avoid coming into contact with the plaintiff, even if the plaintiff had been on or near the line dividing the northbound lane from the breakdown lane. It follows that a reasonable person would have taken precautions against the risk of harm.

117. As a result I find that the defendant was negligent and caused the collision, and that, but for the defendant’s negligence, the accident would not have occurred and the plaintiff would not have been injured.

118. On the facts as I have found them, the defendant cannot establish any contributory negligence on the plaintiff’s part in accordance with s 5B(1)(a) to(c)

Damages

119. The following heads of damage call for quantification:

1. Non-economic loss;

2. Past loss of earnings;

3. Past loss of superannuation;

4. Fox v Wood damages identified as being $37,238 as at the commencement of the hearing;

5. Future loss of earning capacity;

6. Future loss of superannuation.

Non-economic loss

120. The parties agree that the plaintiff’s damages for non-economic loss should be assessed at $425,000.

Past loss of earnings

121. There is no dispute that as a result of his injuries, the plaintiff has no residual earning capacity, nor is there any dispute as to the plaintiff’s approach to the assessment of his claim for past economic loss. However, the plaintiff’s most likely future financial circumstances were a matter of contention.

122. The plaintiff is presently aged 60 years. He was aged 56 at the date of the accident. After leaving school, having completed year 10, he first studied carpentry and joinery at TAFE but did not complete the course. He then studied cement rendering at TAFE and started his own business as a cement renderer trading as “Ed Fletcher Cement Rendering”. He continued that business for thirty years before ceasing about a year before the accident in order to work as a contractor with John Weisberger laying internet cables. On ceasing that work, from May 2018 until the date of the accident, he was employed by Tarl Dowd, the proprietor of ATD Infrastructure, also laying internet cables. The plaintiff was not clear on how long before going to work for ATD he had worked for Mr Weisberger but thought it was less than a year.

123. ATD is a contractor to the National Broadband Network roll out. It also accepts contracts in landscaping, utilities management and civil construction.

124. While the plaintiff was self-employed as a cement renderer, his tax returns show modest earnings. His net weekly earnings were between $582 in 2015, $448 in 2016 and $229 in 2017. In contrast, his weekly earnings for the time that he worked at ATD were considerably more, about $1,200 per week. In addition, he was paid superannuation, something he said he had not been able to afford to contribute to while self-employed. No records were available as to what the plaintiff was paid when working for Mr Weisberger because he did not declare the income received and he no longer kept the invoice book relating to that work.

125. Mr Dowd gave evidence and said that the plaintiff was an energetic and reliable employee who had come to him with the necessary credentials to lay NBN cable. Mr Dowd said, and I accept him, that he could not see an end to the work involving the NBN cables but in any event he said that he had other work available for the plaintiff to do if he was fit, and he would have employed him.

126. Returning then to the question of past economic loss, it is clear from the summary of the plaintiff’s earnings from ATD (MFI 7), that the plaintiff’s weekly net income varied with the hours he worked, and whether he worked away from home, which involved further payments. The parties agreed that an average net weekly figure of $1190 represented his earnings at ATD in 2018. This figure includes allowances and represents an hourly rate of pay of $27 for his work with ATD at the date of the accident.

127. The defendant argued that while the plaintiff’s average net weekly income was agreed to be $1190 per week, the appropriate figure should be $1041, this being the net income less allowances that were paid to the plaintiff. In reliance on the plaintiff’s taxation returns, counsel for the plaintiff submitted that the plaintiff declared as taxable income his base salary together with the paid allowances and he did not claim deductions for travel or accommodation, although part of the allowance included a living away from home allowance and thus the whole amount should be treated as income.

128. I accept the plaintiff’s submission and I consider the figure of $1190 to be more representative of the plaintiff’s net weekly earnings at the date of the accident.

129. As to the plaintiff’s economic loss from the date of the accident to the date of hearing, counsel for the plaintiff argued that as Mr Dowd had work available, was presently seeking to hire workers and was offering to pay them between $30 to $40 per hour, it would be reasonable to assume that had the plaintiff remained fit, he would have continued to be employed by Mr Dowd and given that he was regarded as a reliable and hard-working employee, most likely he would have been paid “at the top end of that range”. Thus, the plaintiff argued that an appropriate figure for net weekly earnings over the past four years since the accident should be $1350. Given my findings concerning the evidence of Mr Dowd, I accept that this is a reasonable assumption and I adopt the figure of $1350 as representing the average rate for calculation of the plaintiff’s past loss of income from the date of the accident.

130. The interval between the plaintiff’s accident on 28 August 2018 and the commencement of the hearing is 203 weeks. At the average rate of $1350 per week net, the plaintiff’s claim for past economic loss may be assessed at $274,050.

131. Accordingly, I assess the plaintiff’s net past economic loss at $274,050 net.

Past loss of superannuation

132. I assess the plaintiff’s past loss of employer funded superannuation benefits at 11 per cent of the discounted sum of $274,050, amounting to a loss of $30,145.00.

Fox v Wood

133. The plaintiff has had tax of $37,238 deducted from his workers’ compensation payments. He is entitled to be reimbursed for those deductions: Fox v Wood [1981] HCA 41.

Future Economic loss

134. It is necessary to determine damages for future economic loss based on the plaintiff’s most likely future circumstances but for the injury: s 4.7 of the Motor Accident Injuries Act 2017 (NSW).

135. The section requires a court, before making an award for damages for future economic loss, to be satisfied that the assumptions about the plaintiff’s future earning capacity accord with the plaintiff’s most likely future circumstances but for the injury.

136. In considering this requirement, the material question is whether, but for the accident, it was most likely that the plaintiff would have continued working for Mr Dowd at ATD or whether he would have returned to working as a self-employed cement renderer.

137. In the plaintiff’s amended answers to particulars, filed on 14 July 2022, the following appears in relation to future economic loss:

“4. If self-employment as a renderer was substantially less remunerative than employment as a cable layer, the Plaintiff had the option of finding further contract work as a cable layer.

5. But for the accident, it was the Plaintiff’s intention to continue operation and working for his business until the age of 75.”

138. The defendant argued that the particulars demonstrate the plaintiff’s intention in the future was to remain self-employed or return to self-employment after having worked with Mr Dowd for a short time.

139. In my view, the defendant’s submission does not adequately reflect the evidence which was to the effect that the plaintiff’s business was not providing him with a sufficient income to justify him persevering in that business. The particulars, of themselves, do not constitute persuasive evidence to the contrary.

140. The plaintiff said that he decided to leave the rendering business because he “needed the money to feed and house the kids better”. The background circumstances clearly being that the plaintiff’s rendering business was not delivering that sort of income: T73.20.

141. At the time of the accident the plaintiff had no assets but for his house which was mortgaged, he had no savings, and he had little if any superannuation. He had one dependent child living at home and his wife worked at night stacking shelves in a local supermarket. The plaintiff said he was not in a financial position to retire before the age of 67.

142. The plaintiff said that before the accident he had hoped to return to cement rendering in partnership with his son if his son was interested in joining him in the business and if the business could provide for two incomes. He had hoped the business would pick up and he could start it up again. However, he agreed that before the accident the business was not doing very well in providing him with an income. Therefore, the plaintiff’s evidence of an intention to return to his business as a cement renderer must be seen to be a contingent intention that was unlikely to come to fruition.

143. The plaintiff said he enjoyed working with ATD and the additional income had eased his family’s financial situation. He denied that the work with ATD was a “short-term proposition” to earn more money. He denied he intended to return to rendering but for the accident.

144. The defendant argued that for many years the plaintiff’s business was producing only modest returns, and if the plaintiff had wanted to earn more money, he could have sought out other opportunities. It was further submitted that he had not done so because he was “content with his lifestyle”. That proposition was not accepted by the plaintiff and it is inconsistent with his evidence of needing more money to provide housing and support for his children.

145. In fact, the plaintiff did find different employment that paid him more and it made his life easier. Although paragraphs 4 and 5 of the particulars do not necessarily sit easily together, the plaintiff’s evidence was in broad conformity – he would have liked to work with his son in the business, if his son was interested and if the business would support the two of them, although as he said, at the time of the accident it was not producing more than a modest income. However, he said that having found more remunerative work and the additional money easing the financial burden in the household, he did not intend to return to his former work.

146. Although there was perhaps a dissonance between the particulars of future economic loss and the plaintiff’s evidence of his intentions for the future, but for the accident, in my view, the plaintiff’s evidence about the employment with ADT making his life easier was persuasive, should be accepted and given effect in the assessment of his claim for future economic loss.

147. I accept the plaintiff’s evidence that, but for the accident, he intended to continue working for Mr Dowd at ATD. It was in his interests to do so to fulfil his financial obligations.

148. In my view, the plaintiff’s most likely future circumstances but for the accident was that he would have continued working for Mr Dowd or in a like occupation and similarly rewarding occupation. Mr Dowd’s evidence persuades me that he had sufficient work to provide continued employment for the plaintiff and that he was committed to training his employees to equip them with the necessary accreditation to perform the work that his contracts required, and that he would have done so with the plaintiff.

149. In relation to the plaintiff’s future net weekly income, it was argued that an appropriate figure on which to base an assessment of the plaintiff’s future economic loss was $1450. The basis for this amount was by reference to the Average Weekly Earnings for a male in NSW in May 2021 which, less tax amounts to $1450. The plaintiff argued that there was no sound basis on which the plaintiff’s future economic loss should be calculated at a rate less than average weekly earnings. I accept that this is a reasonable figure on which to base an assessment of the plaintiff’s future economic loss.

150. The defendant argued that damages for future economic loss should be discounted to take into account the heavy nature of the work required of the plaintiff at ATD, as described by him in his evidence and the plaintiff’s increasing age. There is some force in this argument. To accommodate that argument a discount greater than the usual 15 per cent is appropriate. I therefore propose to adopt a 20 per cent discount to reflect and take into account that the plaintiff’s capacity to do heavy work might diminish with age.

151. But for his accident, being presently aged 60 years, the plaintiff would have had a remaining 7 years working life, subject to potentially adverse vicissitudes. The projection of a net weekly loss of $1450 over 7 years on the 5 per cent discount tables (x 321.4) less a 20 per cent discount amounts to $372,824.

(6) Future Loss of superannuation

152. Future loss of employer funded superannuation benefits is assessed at 14 per cent of the discounted future economic loss assessment of $372,824, namely $52,795.

Summary of damages assessment

153. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$425,000.00
(b) Past loss of earnings	$274,050.00
(c) Past loss of superannuation	$30,145.00
(d) Fox v Wood	$37,238.00
(e) Future loss of earning capacity	$372,824.00
(f) Future loss of superannuation	$52,795.00
Total	$1,192,052.00

154. On the basis of the above assessment the plaintiff is entitled to a verdict in the amount of $1,192,052. At the conclusion of submissions, the plaintiff’s counsel indicated he intended to update some of the damages components. Accordingly, the legal representatives of the parties are to agree on and provide by email to the District Court Civil Registry a short minute comprising a final amount of the judgment to be entered in the plaintiff’s favour in conformity with my findings, including any agreement as to costs.

Orders

155. I make the following orders:

1. Verdict for the plaintiff.

2. The lawyers for the parties are to confer and agree on a minute of orders in conformity with the economic loss findings to be sent to the District Court Registry no later than 12.30pm on Friday 2 December 2022.

3. The exhibits may be returned.

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

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Amendments

01 December 2022 - coversheet - corrected representation

Decision last updated: 01 December 2022