Guest v Southern
[2000] NSWSC 793
•11 August 2000
CITATION: Guest v Southern [2000] NSWSC 793 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 19154/93 HEARING DATE(S): 7-14 June, 20-22 June 2000 JUDGMENT DATE: 11 August 2000 PARTIES :
David John Paul Guest (Plaintiff)
David John Southern (Defendant)JUDGMENT OF: Studdert J
COUNSEL : P. McEwen SC/D. Timmins (Plaintiff)
P. Hall QC/S. Kettle (Defendant)SOLICITORS: Timmins & Partners (Plaintiff)
Ferguson Holz (Defendant)LEGISLATION CITED: Evidence Act
Motor Accidents ActDECISION: See para 55
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONSTUDDERT J
Friday 11 August 2000
19154/93 DAVID JOHN PAUL GUEST v DAVID JOHN SOUTHERN
JUDGMENT
1 HIS HONOUR: In this cause the plaintiff David Guest is claiming damages from the defendant David Southern, alleging negligence in the circumstances of an accident that happened on 31 May 1990 at Greygums Road, Mt Pleasant. The plaintiff sustained serious injuries in the accident, being tragically rendered quadriplegic, but the hearing before me has been for the decision, as a separate question, of the issue of liability only.
2 The plaintiff and the defendant were work acquaintances, and on the afternoon of 31 May 1990 the defendant called upon the plaintiff at his home at Mt Pleasant, near Penrith. They left that place together, shortly before 4.00 pm to travel towards Penrith, each riding his motorcycle. Their journey took them to Greygums Road, Mt Pleasant, which I propose to describe as running approximately north and south. Whilst the compass points I have decided to adopt are not strictly accurate, they accord with the evidence of at least one of the witnesses, Mr Schuberg (T201-202), and I adopt those compass points for the sake of convenience.
3 The plaintiff and the defendant rode together to the point where they entered Greygums Road, approximately 900 metres to the north of a crest, which is a focal point in this case. Both cyclists proceeded south along Greygums Road to a point in the roadway where the plaintiff lost control of his motorcycle, it fell on its side, and then cycle and cyclist slid down the road into a safety fence beside the roadway, the plaintiff thereby sustaining his injuries. There was a safety fence both to the north and to the south of Elk Place which forms a T intersection with Greygums Road on the eastern side. The plaintiff and his motorcycle struck the fence to the south of Elk Place.
4 There was, I am satisfied, a depression caused by a break in the bitumen surface which extended across Greygums Road to the north of the intersection with Elk Place. Constable Stewart, who attended the scene of the accident, observed this depression and scrape marks that led from it a distance of thirty-five metres down to the safety fence. I am satisfied that the northern most end of the scrape marks evidences the place where the plaintiff lost control of his cycle, and that the marks that extended from that point to the fence were made by his cycle thereafter. These scrape marks indicate that the plaintiff was on the correct side of the road but near the centreline when he lost control. The depression to which I have been referring is shown in photograph Exhibit 3 and the scrape marks appear in the photos Exhibit 9B and 9C. The latter two photos were taken by Mr Welsh, for whom the plaintiff was working under contract. Mr Welsh took these photos the day after the plaintiff’s accident.
5 It is not the plaintiff’s case that there was any collision between the two motorcycles, but that the defendant handled his motorcycle negligently, thus putting the plaintiff in the position of taking urgent evasive action in the course of which he lost control of his cycle.
6 For his part, the defendant has denied that he did anything which contributed to the accident or the plaintiff’s misfortune. Liability has been strenuously contested.
7 At the outset it is necessary to describe Greygums Road and the features surrounding the accident scene. I have had the advantage of a view in this case, and I remind myself that s 54 of the Evidence Act permits me to draw any reasonable inference from what I observed on my inspection.
8 Immediately beyond the crest to which I have referred the road bends fairly sharply to the right for motorists driving south.
9 Since this accident happened there have been some changes to the markings on the relevant stretch of roadway. In May 1990 the centre of the roadway in the vicinity of the crest was marked with double unbroken lines but there were no lane lines marked. Since that time, apart from the unbroken centrelines, there have also been marked unbroken white lines dividing the road surface both to the east and to the west of the centrelines. These unbroken white lines define the area for parked cars.
10 At the time of the accident there was an advisory sign beside the road facing motorists travelling south towards the crest, warning of a right hand bend and advising an approach speed of forty-five kilometres per hour. That sign was located approximately 105 metres from the crest. There is still a sign in that position but the advisory speed has now been reduced to forty kilometres per hour. Apart from that advisory sign, there were also seven other notices to the south of the principal advisory sign. Six of these displayed chevrons to alert south-bound motorists to the change in the direction of the roadway. There are now only five chevron notices.
11 In 1990 shortly after the advisory speed sign there was a further notice bearing the legend “Reduce Speed”. That notice is no longer there.
12 These various changes are shown by a comparison of the photos comprising Exhibit A, taken shortly after the accident, and those photos comprising Exhibit G, taken quite recently. Allowing for those changes, both sets of photos give the observer an adequate appreciation of that part of Greygums Road with which this action is concerned. Further photos comprising Exhibit F taken on the view add to that appreciation.
13 In addition a survey plan was introduced into evidence as Exhibit 8. This plan locates the crest of Greygums Road and usefully establishes distance references both to the north and to the south of the crest. It also emphasises the nature of the right hand bend located to the south of the crest for motorists travelling south. I accept the survey plan as being accurate, and indeed its accuracy was not challenged. I note that this plan locates the depression in the road surface referred to in para 4 above as being approximately fifty metres to the south of the crest of the hill and I am satisfied that the scrape marks commenced there.
14 It is a feature of the roadway that beyond the crest to the south the road surface for south bound motorists falls away significantly towards the eastern kerb. The plaintiff, who I accept was very familiar with this stretch of roadway, described this bend as “tricky”, because of what he called “a fairly extreme left hand camber on a right hand bend” (T16). I accept that description as accurate.
15 The crest of the roadway does, I am satisfied, obstruct vision beyond it. The extent of that obstruction I shall consider later in this judgment.
16 The plaintiff was at the time of his accident an experienced motorcyclist who started to ride minibikes as a ten year old, riding them on various dirt tracks. From the time he was old enough to ride on public streets, the plaintiff owned and rode a succession of motorcycles, continuing to do so up to the date of his accident, by which time he was nearly twenty-eight years old.
17 According to the plaintiff, and this is not in contention, he and the defendant travelled together a distance of about two kilometres to the point where they entered Greygums Road. The plaintiff said that he was the first to enter Greygums Road and there was a slow moving car in front of his cycle also travelling south. He said he “sat behind the car”, which was only doing about forty kilometres per hour. The defendant drew alongside the plaintiff and indicated he was going to overtake the car. The defendant did so and drew away. The plaintiff said that the defendant overtook the car at a point “at least 400 yards” to the north of the forty-five kilometres per hour advisory sign. The defendant does not dispute this, and I accept that this is what occurred. It is what happened afterwards that is contentious.
18 According to the plaintiff, having paused, he decided to overtake the car and did so at a point he fixed as “getting down to 250 metres” from that same advisory sign. He said in overtaking he reached a speed of sixty kilometres per hour. He said that when he came back in front of the car the defendant was a fair way ahead, some eighty to ninety metres away. He gave the following evidence as to what occurred after he had overtaken the car (T6-9):19 In cross examination the plaintiff said that he entered the bend at about fifty kilometres per hour. His evidence was that it was safe to negotiate the bend at forty-five to fifty kilometres per hour. In cross examination he was asked these questions and gave these answers at T55-56:
“Q. When you come back in front of the car, having overtaken it, Mr Southern is out in front of you?
A. Yeah, he was a fair way. He was sort of disappearing into the, sort of distance and --
Q. Do you remember, in relation to your side of the carriageway, that is, the carriageway travelling in the direction you are going. Do you remember where, on the carriageway he was, whether he was to the centre, or more to the left, or more to the right?
A. No, no, no. He resumed his position. He was only less than 1 m, or approximately, yeah. Less than 1 m from the left hand side of the road.
Q. That’s the kerb on the left?
A. Yes.
Q. Did you remain behind him then?
A. Well, I was to the right and he actually, if you look at the photo, he actually, I don’t know, he would have been about 80 to 90 m ahead of me, when he entered the curve on the left hand side and then I lost sight of him, just over the crest and --
Q. How long did you lose sight of him for?
A. Probably about four or five seconds, just the time it took me to get, to come over the crest. I came over the crest only 1 m, or so, from the centre lines and to my horror, he was on, around about a 45 degree angle, just moving off again. It seemed --
Q. Let me stop you there?
A. Yes, yeah.
Q. Are you able to tell us, by reference to the photos, where you were in one of the photos, at the time when you say you lost sight of him?
A. I’d say I was probably, probably around about, probably a little bit further back than photo 3.
Q. A little bit further back from photo 3, is towards photo 2. Somewhere a little further back than 3 you think?
A. Yeah, I think that, I think that would be about it.
Q. Then you say you lost sight of him?
A. For a brief while, yeah.
Q. When you next saw him, by reference to the photos, are you able to tell us which photo shows where you would have been when you first saw him again?
A. Basically, just between 6 and 7, or closer to 7. Just, yeah, probably 6, probably 6 at my height on the bike.
Q. When you do see him, if you look at photo 6, or photo 7, are you able to identify roughly where, on the photo, you saw him?
A. At least a 45 degree angle towards the centre line, like coming to the right.
Q. Let me ask it another way. In relation to the kerb on the left hand side of the centre line from the middle of the road, when you first saw him, where was he, closer, or closest to the centre line. How far was he from the centre line?
A. About 1 m.
Q. What speed were you doing, when you first saw him as you came over the crest?
A. About 50 km an hour.
HIS HONOUR: Q. 50 km did you say?
A. Yes.
McEWEN: Q. Are you able to estimate what his speed would have been, at the point where you last saw him, before he went over the crest?
A. I’d say he might have been doing, I don’t know, I’d say he might have been doing 70 km an hour, or thereabouts. It was, he was disappearing on me sort of.
Q. When you came over the crest and first saw him, I think you said your speed was about 50 km an hour?
A. Yes.
Q. When you first see him, after the gap in time when you don’t see him, has anything happened to the speed at which he was travelling?
A. Massively had reduced. He was almost sitting still in the middle of the road. He was doing less than 10 km an hour and totally, I was totally shocked as to how he could have positioned his bike, from the left to so far to the right.
Q. When you see him in that position, what do you do?
A. Well, I thought, well, he was still headed in that direction.
Q. What direction was that when you said --
A. He was straightening out of the curve, so he was headed right towards the centre lines, which was going to squeeze me out. I just tried to go a little bit further to the right and just brake as much as I could.
Q. Were there any on-coming cars?
A. Not that I can recollect. And I was just leaning my bike further to the right, getting closer to the centre lines and that’s when I, that’s when I come off. I just sort of saw the back of his bike sort of moving out of the way as I come off but.
Q. When you say as you came off as you leant your bike over, do you had any recollection as to where you were in relation to the centre lines, the double yellow lines?
A. They were just about under my eyesight. It would have put the tyres contacting the road, at least two foot to the left from the lines, if not a little bit more, because I can clearly remember that I couldn’t have got much closer to the centre lines.
Q. In relation to your friend’s bike, Mr Southern, do you remember hearing anything any noise, that is, changed?
A. Well, his bike was accelerating and going up through the gears, sort of in a moving off type sound.
Q. When did you first hear that start to happen?
A. No, I didn’t actually hear that until I, just the bike had just started to slide.
………………
Q. Bringing you up to the point where he started to disappear around the right hand bend, which he does in photo 3. Do you have a recollection of where he is, on the carriageway?
A. Yeah, exactly the same.
Q. The same where?
A. He was still only a metre from the outside of the road, the left hand side and a metre from the kerb.
Q. Prior to coming upon Mr Southern’s bike over the crest, had you noticed anything in his riding, or manner of riding, or style of riding, which suggested that he may be likely to either brake suddenly, or change direction suddenly?
A. No, not at all really. He had been quite, quite normal. To me quite, he appeared to ride quite in the way to be expected.
Q. Was there anything though, that suggested to you that you should anticipate any sudden change of speed, or direction?
A. No, not at all.”
(The reference to photo 3 in the above passage is a reference to the photo Exhibit A3, which placed the plaintiff north of the northern most of the chevron notices when, according to his evidence, he lost sight of the defendant.)
“Q. Mr Guest, as earlier discussed, a cycle travelling at about 60 kilometres per hour along this type of surfaced road could be brought to a safe stopping within about 12, 13 metres; correct?
A. I’d say approximately.
Q. And I put to you that you would have seen David Southern, if you were a good distance back from him, at a point of 20, 30 metres, 40 metres at least; what do you say?
A. My recollection is I came over the crest. He was 3, 4 metres away from me, in front of me. There was no way I could stop before him. There was, I was trying to avoid him going on the right. I, I knew that it was impossible to brake, to brake to avoid him.
Q. So you see the point of my question, what I’m putting to you is this: Even accepting for the purposes of this question that there was some distance between you, much greater than three bike lengths back from Mr Southern as he went to the corner?
A. Yes.
Q. Even if, for example, you were 30 metres back, 40 metres back, 50 metres back at least, you still at all times would be able to see him as you were approaching the bend; what do you say?
A. In my memory he was unsighted until, until I came upon him.”20 The plaintiff was asked by Mr Hall to mark on Exhibit 6, a rough sketch plan, the respective positions of the defendant and himself when he first sighted the defendant after having reached the crest, and he did so. The sketch was not, of course, to scale and this evidence does not help in determining precisely where the plaintiff claims to have been when he first saw the defendant. On the same issue, the plaintiff marked the photo Exhibit A5 as showing where he was when he first saw the defendant in the position marked on the photo Exhibit A6. Later, following the introduction of the survey plan, the plaintiff marked on it where he was when the defendant came back into sight, and where the defendant then was. The plaintiff placed himself at the crest and the defendant more than forty-five metres further to the south (T112). In re-examination the plaintiff said he must have been further south when he saw the defendant again (T129 and 131-2), which would have placed the plaintiff beyond the crest when the defendant came back into view.
21 During cross examination (T72) the plaintiff was asked the following questions and gave the following responses:22 The defendant, like the plaintiff, was an experienced motorcyclist, although unlike the plaintiff he was not familiar with the stretch of roadway where this accident occurred. The defendant was thirty-two years of age at the time of the accident and had been riding motorcycles since he was sixteen years old, riding in England until he came to Australia in 1980. Whilst the defendant quickly became aware after the accident that it occurred, he said that so far as he could recall he did nothing in relation to his control of his cycle that interfered with the plaintiff (T148). He gave this account of what happened from the time he and the plaintiff approached the slow moving vehicle in Greygums Road (T144):
“Q. What I’m putting to you is that you had sufficient sight of him, from at least from the crest of the hill, or the apex for that matter, as you have defined it, to where he was located and he was travelling at the point you first resighted him, of at least 80 m and that that was more than adequate time for you to comfortably bring your cycle either to a halt, or to drive it with care, so as to avoid any situation of urgency. What do you say?
A. I wish he was that far away. But like I said, he was, he was not much, not much over 10 m in front of me, once I came upon him.
Q. 10 m now do you say, between the time you first resighted him and where you were?
A. It’s hard to pick an exact distance but it’s not much more than 10 and less than 20.
Q. Mr Guest, you know that’s just physically impossible don’t you?
A. I don’t know that.
Q. Given this road and the topography and the shape of road?
A. I don’t know that.”23 And then at T146:
“Q. So then as you proceeded upon Greygums Road, what happened?
A. Dave pulled right up behind a learner who was going reasonably slow.
Q. Can you estimate what speed that learner was travelling?
A. 30, 40 k’s.
Q. What sort of vehicle did he come up behind, was it a car, or a cycle?
A. A car, yeah, four cylinder car I’d say, small.
Q. Then what happened?
A. I overtook Dave and the car indicated right, I overtook then pulled back into left.
Q. Did you proceed up Greygums Road?
A. Yes, I did.
Q. At what speed?
A. 50, 60 km.
Q. Do you recall whether you noticed anything about Dave Southern, Dave Guest, after you had overtaken and then come back and proceeded forward?
A. I were concentrating on the double yellow lines. I had to get back there before the double yellow lines and then I’m pretty sure I glanced in me mirror and see Dave overtaking them, overtaking the car and then just proceed on.
Q. Would you then describe what happened as you proceeded along?
A. Like I say, I were concentrating on the double yellow lines. I have pulled to the left of the double yellow lines and gone round the corner, gone round the bend.
Q. Can you then describe by your recollection, what happened as you went around that bend and at what speed and so on you were doing coming to a bend?
A. I would have clicked down a gear before I took the bend. As I come round the bend there was a feeling of it wanting to drag me to the left. It definitely wanted to pull me to the left, because of the angle of the road.
Q. Yes, keep going?
A. And like I say then, I come round the corner and just as I floated towards the armco railing, I just carried on.
Q. What then?
A. Then I heard some kind of noise behind me. I looked in me rear vision mirror, me right rear vision mirror and I could see sparks and I just, I thought, no it can’t be and I was hoping it was the car that was behind me. But the car - I carried on further down. There another turning. I didn’t even know about Elk Street, or Elk Place. There was another turn on your left. I started on past that. I turned round and Dave was lying up under the Armco railing and the car never came round.
Q. What did you do then?
A. I turned round and went back to where Dave Guest was.”24 He continued (T147-148):
“Q. Did you, at any stage at the point of going into the curve, to the time of coming out of it, suddenly reduce speed, or significantly reduce speed to any level?
A. Not my memory.
Q. Did you heavily hit the brakes, so as to bring your cycle from a speed of 60 or 50 km per hour, down to some lesser speed, that you recall?
A. Not to my memory.
Q. Do you recall, at any stage, as you negotiated that curve being at a speed of 10 km an hour, or even less firstly and secondly, of coming out from the left at something like an almost 45 degree angle, towards the centre line, at any point in that curve?
A. I can’t, like I say, not to my memory. That seems a very slow, as if I was heading off again out.
Q. Just relying on your recollection, is all I am asking you to rely on at the moment. Do you ever recall reducing speed down to something like 10 km per hour firstly?
A. No.
Q. What do you say is your best recollection, as to the speed that you entered it and came out of it?
A. If I entered it at 60, I’d say I probably would have come out 45. It’s hard to say. Like I say there was that feeling of being pulled away and then carrying on.
Q. As to the proposition that you came out from the left of the curve, after having entered it and came across at 45 degrees and kept heading towards the centre line, what do you say as to that proposition?
A. Don’t recall doing that.
Q. As you went through the curve, was there anything that to you caused you to either swerve, or move out in an abnormal fashion, towards the centre line, as you recall?
A. No, as I said, as I recall I was becoming dragged more to the left, because of that camber away, or slope away.”
“Q. In relation to the sensation, or the pull of gravity that you have described as you went around that curve, did it have any effect on the path of travel that you followed through the curve?
A. In my recollection, if anything, it was pulling me to the left, if anything.
Q. I’m asking how you responded to what you said you felt in terms of the path of your cycle?
A. Just carried on. Like I say just obviously maybe backed off a bit more and just carried on around.
HIS HONOUR: Q. What do you mean maybe backed off a bit more and just carried on around?
A. I were doing 60 or something, I would have slowed down once it started pulling me away. I would have let go, would have backed off my throttle a bit more.
Q. Are you telling me what you remember, or what you reason you would have done?
A. Like I say, as I recollect it, I definitely had a feeling of going to the left, so if I did slow down any, if anything it would have just backed off a bit more as, until I negotiated that funny feeling.
HALL: Q. In terms of the events, as you have described them, as you drove up this road, including the negotiating of the turn, do you have, yourself now, an independent recollection of those events, as you have described them, driving at the speed and taking the curve with the effect that you have described from your recollection. You still have a recollection of those events?
A. Yes.
Q. When you are talking about throttling back somewhat to cater with any drag effect, what sort of throttling back, in terms of reduction of speed, if any, are you there referring to, as to what happened on the day?
A. I’d say very little, because I would have already clicked down coming into a sharp bend anyway, so--
Q. As to the suggestion, if one be made, that you went into this corner and in some way got into difficulties and had to suddenly reduce your speed right down to say 10 km per hour and that you were angling across after that event at a 45 degree angle where Mr Guest came along, what do you say to that sort of suggestion?
OBJECTION. QUESTION ALLOWED.
HALL: Q. Do you recall what I put to you. Do you recall the last question?
A. The one you just said to me, what he objected against?
Q. Yes?
A. Yes.
Q. Are you able to answer that question. What would you say?
A. Yeah, I still recollect it pretty well, yeah.
Q. What I am saying to you, if it is suggested to this Court, that you entered that curve and in some way got yourself into difficulty and suddenly reduced speed to as low as 10 km per hour and that you were slowly moving off again and angling off at 45 degrees towards the centre line when David Guest came along and he was at that point, what would you say if that was, in fact, suggested that is what happened?
A. Very hard to say what’s happening behind me. Like I say, I come round that corner just as normal. I had the feeling of pulling to the left and so.
Q. My question is not directed to what was coming behind you, I am just saying if it is suggested to this Court that you, yourself, got into difficulty and reduced to 10 km an hour, and you were just starting off again, when David Guest came along, is that what happened according to your recollection?
A. No.
Q. Was there anything that you recall that you did, in relation to the driving of this cycle on the day on this road, that interfered with David Guest at all?
A. Not as I could see, no.”25 The defendant marked on Exhibit 8, the survey plan, the direction his cycle took through the bend. According to this marking the further south the cycle went as it proceeded past Elk Place, the closer it went towards the nearside kerb. The defendant marked with a cross on Exhibit 8 the position where he was when he saw the sparks through his rear vision mirror, and at that point he was fairly close to the centre of the road; he said that he entered the bend at one to two metres from the centreline but that the cycle was drawn to the left.
26 In cross examination he denied that he cut the plaintiff off or that he braked heavily (T188). Earlier he was tested as to his recollection of events and responded as follows (T173-174):27 And later at T174-175:
“Q. In giving your evidence here, in respect of some aspects of what happened, I suggest to some extent, thinking back at that accident, you have thought what you would have done and told us that’s the best of your recollection. For example, you said at p 144 line 50, you said that in relation to the corner, entering the corner you would have clicked down a gear. You used the words you ‘would have clicked down a gear’?
A. Yeah.
Q. I take it you said you would have clicked down a gear, because knowing the corner now as you do, that would be the thing to do approaching that corner, you would click down a gear to be able - you would do it for any corner basically?
A. Yes.
Q. When you said you would have clicked down a gear, what you are telling us is, with hindsight what you would do for any corner. Is that correct?
A. Yes.
Q. Then my learned friend invited you to tell us what recollection, you might have had, of any sudden change in speed, or sudden braking. You said you had no memory of it p 146 line 45. You had no memory of a sudden change in speed, sudden braking. Do you remember saying that?
A. Yeah.
Q. I take it, because with the passing of time, you simply have no memory of doing that. That’s why you said you had no memory of it?
A. Yes.
Q. So it’s possible is it, it is possible, you having no memory of it, that in fact, you did brake as was suggested to you suddenly, or changed speed with some suddenness?
A. I think I would have remembered something like that.
Q. You said you have no memory, you see, of it?
A. Well, because I didn’t do it. That’s why I don’t have a memory of it.”
“Q. In relation to speed, you remember you had said to my learned friend, that your speed up the road was 50, reducing to 60, then you came out of the kerb at about 45. Do you remember that. Because I took you to that --
A. Yes.
Q. -- in cross examination. I took you to some of those speeds, because you varied them by some 5 or 10 km. Eventually, when I put to you this difference, you said ‘Oh whatever’. Remember using those words?
A. Yes.
Q. Because you used the words, I suggest to you, because with the passing of time you really don’t have a clear memory of any exactness in relation to speed?
A. Correct.”28 I have set out above lengthy extracts from the evidence of both the plaintiff and the defendant. Plainly it is not possible to reconcile the plaintiff’s account of events with that of the defendant. The plaintiff impressed me as a courageous, cheerful and honest witness. The defendant also impressed me as an honest witness. Mr McEwen did not submit that the defendant was seeking to deceive the Court and I do not find that he was. As I understand his submissions, Mr Hall did not submit that the plaintiff was consciously seeking to deceive the Court either, and I do not find that he was. I have no doubt that the versions of events from both parties suffer from the passage of time. My task is to determine, if I can, what evidence I regard as reliable.
29 Was it possible for the plaintiff to have lost sight of the defendant as he followed him towards the crest of the hill? Mr Hall called Mr Schuberg, the director of a motorcyclist training company. Mr Schuberg gave evidence that the bend was one which could be taken safely at sixty kilometres per hour with no need to brake. He gave evidence of following another cyclist over the crest on a number of occasions and that he did so without losing sight of that cyclist when travelling thirty metres behind him. Mr Schuberg also said that he did not lose sight of the leading cyclist on an occasion when he travelled seventy metres behind him. Indeed, as I understand the effect of his evidence, it was not until the leading motorcyclist travelled 165 metres ahead of Mr Schuberg over this stretch of roadway that upon the lead cyclist cresting the crest Mr Schuberg lost sight of him. His evidence thus invites the conclusion that for the plaintiff to have lost sight of the defendant at all he must have been 165 metres behind him. I am not persuaded that this is so. Indeed, I accept that if the plaintiff was travelling ninety metres behind the defendant as the latter went over the crest the defendant would have disappeared from the plaintiff’s view for a short period. I accept Mr McEwen’s submissions on this issue, having studied the survey plan and the photos and heeding my observations upon the view.
30 However, was the plaintiff travelling so far behind the defendant, and did he lose sight of the defendant for four to five seconds? There is no independent eye-witness to assist me in addressing this question.
31 Mr Hall called Mrs Barden who, when the accident happened, lived on the western side of Greygums Road, just south of the intersection with Elk Place. Mrs Barden said she was in her lounge room and was attracted by the changing pitch of a motorcycle as it came over the hill. Mrs Barden then saw the plaintiff and his bike sliding across the road and ran to his aid. Mrs Barden gave evidence that the plaintiff told her something to the effect that he did not know what happened and (presumably referring to his motorcycle) said that “it just went”. Mrs Barden could not recall seeing a second motorcycle.
32 However, it transpired that Mrs Barden had given a statement to an investigator in September 1991. In that statement she said that she did not have any conversation with the plaintiff about how the accident happened, so I do not treat her evidence in Court as to what the plaintiff told her as being reliable because the oral evidence in this respect is not consistent with the detailed statement taken so much closer to the event. In the written statement, contrary to her oral evidence, Mrs Barden said that she heard the sound of two motorbikes approaching and the statement records that she saw two bikes and two riders. The recorded observations, even at face value, do not permit a conclusion as to how close the cycles were to each other when the plaintiff met with his accident, and having reflected on her evidence overall, I find that I am not assisted by Mrs Barden. I do not for one moment doubt her honesty, but her recollection of the events of ten years ago, particularly having regard to the inconsistencies between such evidence and the earlier statement.
33 Prior to giving oral evidence in this case the plaintiff had not said in any recorded account disclosed in evidence that he had lost sight of the defendant at any time before the accident, or that he was travelling eighty to ninety metres behind him. The claim form submitted on the plaintiff’s behalf pursuant to the requirements of the Motor Accidents Act did not contain the required “Brief Description of Accident”, and this prompted the defendant’s solicitors to write to the plaintiff’s solicitors on 21 June 1991 drawing attention to this omission and requesting the missing information. On 1 July 1991 the plaintiff’s solicitors responded to this request, forwarding a diagram and a description of the accident. The description of the accident was in the form of handwritten notes apparently taken by the plaintiff’s former solicitor Mr Weller when he attended upon the plaintiff at Prince of Wales Hospital on 31 May 1990. These handwritten notes read:
“We were riding along Grey Gums Road from Mt Pleasant virtually side by side, but I was behind him. He was to my left and ahead of me. I was comfortable with the bend because I knew it. I was doing about 60 kph. David Southern, as we came into the bend, he came across towards me braking at the same time and cut me off.
Prior to that I was comfortable. To avoid a collision I had to brake heavily. Braking heavily caused me to lose the bike.
Before the bend I dropped back slightly. I was behind David’s bike slightly to the right and just behind.
There is a change in the surface level of the roadway as you go around the bend. The roadway is off camber.”
34 The plaintiff was understandably cross examined on the content of that document. The plaintiff said that he did not think that it accurately recorded what he told Mr Weller (T45-46, T51).
35 By 24 July 1990 Mr Mallam was acting for the plaintiff. He also saw the plaintiff at Prince of Wales Hospital and so far as he can remember he recorded the plaintiff’s statement at the hospital and this was later typed but not signed by the plaintiff. This statement, which became Exhibit J, contained the following passages:
“Shortly before the bend, I was riding behind a motor vehicle. A friend, who had been riding his motor cycle with me, and had lagged behind, joined me behind the vehicle. My friend pulled out to pass the vehicle. We both passed the vehicle shortly before the sharp corner, however, my friend who was travelling in front of me, was travelling at a speed which he found too fast for the camber of the corner, and began to brake heavily and suddenly. Because of the suddenness and heaviness of his braking, he became a hazard to me. As a result of this I was forced to brake heavily also, leaning my bike to the right, in order to avoid a collision with my friend’s motor bike. As I bent my bike over, the right foot peg of my bike caught a bump in the uneven surface of the road, causing the bike to fall from under me. My bike continued on down the road, sliding on its side. I left the bike and continued to slide towards the armaguard railing on the left hand side of the road. I slammed into the railing.
……………..
I believe the accident was caused, firstly, by my friend braking suddenly when he was negotiating the corner. It was his braking suddenly and moving over to the right that caused me to attempt to brake and avoid him, and it was the unevenness of the road which caught my foot peg.
………………
When I say that I had to brake to avoid my friend, he in fact was riding on the left hand part of his side of the road, and he came back to the right hand side, cutting across my path. I would not have had to brake suddenly if he had not crossed my path, causing me to brake. If he had not crossed my path, I would have been able to get either beside him or around him.”
36 It is to be observed that a feature common to both versions attributed to the plaintiff in 1990 was the absence of any statement to the effect that the plaintiff had at any time lost sight of the defendant. Indeed, whilst the bend in the roadway was mentioned, the crest was not.
37 The statement of claim filed in 1993 is expressed in terms consistent with the statement Exhibit J but again there is no mention of the plaintiff losing sight of the defendant.
38 Addressing this topic in re-examination, the plaintiff said (T119):
“I just wanted to say that I do not feel that I have been asked in any way to put a detailed, a really detailed description of the whole events as anything at any time. I was always told that it would be worked out later. There was matters of whether the case was going to come as to some technicality earlier. I was always told by other people that if it was my case I would be more involved or watching, talking and everything; but I had a conversation with my solicitor not that long ago about reviewing my statement and I was told: No, you do not need to review that. Just tell them the truth, you’ll be right, and that’s what I am doing.”
39 The plaintiff was interviewed by Mr Burns, an investigator. The interview took place on 1 May 1991. Mr Burns did not obtain a formal statement from the plaintiff but he said that he made notes of what the plaintiff told him at the time and the substance of those notes was later incorporated in his report. According to Mr Burns (and the relevant record is to be found in Exhibit 15), the plaintiff told him that before the accident he had closed to a position of “at least three or four bike lengths behind and to the right of” the defendant before the accident happened. Consistently with what the plaintiff told his solicitors in 1990, Mr Burns said he told him that the defendant had braked “quite significantly” and “he appeared to drop back and across his path”. This led to the evasive action on the version recorded by Mr Burns that resulted in the plaintiff having his accident.
40 The crest and its significance in terms of obstructing the plaintiff’s view of the defendant prior to the accident was central to the plaintiff’s account of the accident given in this Court and the absence of any earlier reference to this feature of the case is to be carefully weighed in determining the reliability of the plaintiff’s evidence.
41 The evidence given by the defendant in this Court was not the first account he gave of what had happened. The first account he gave on the day of the accident to the police officer who attended the scene. He signed the notes recorded by the police officer:42 The defendant gave a statement (Exhibit 10) to Mr Mallam on 9 August 1990. The version then given as to what happened after he passed the car was as follows:
“About 4.30pm on Thursday 31 May, 1990 I was travelling south along Greygums, ‘Spike’ was in front of me and a car was in front of him.
I was going about 45 to 50 kilometres per hour and overtook Spike and the car, I then saw Spike overtake the car behind me, I was doing about 60 kilometres per hour then.
I then braked to go into a right hand corner over a crest, I then straightened it up. I heard scrapes and saw sparks in my rear vision mirror.
I then stopped, turned around Spike had hit the amco-railing, people were running out of there houses.”
43 The defendant later made a statement to Mr Burns on 20 December 1990 (Exhibit 11). In that statement, which the defendant signed, this passage appears:
“As I was coming in to my side of the road after passing the car, I checked in my rear vision mirror to see David’s position. I observed that David was in turn coming in behind me from overtaking the car. At this point, David would have been approximately three bike lengths behind me. Shortly after this, I observed the bend in front of me to the right. I also observed double yellow lines coming into the bend and an advisory speed sign of 45 k.p.h. I braked and steadied myself for the corner. I drove my bike into the corner, however, the corner was very badly cambered and was cambered away from the turn. I had to brake in order to accommodate for the bad camber of the road and I slowed down in order to take the corner.
Shortly after this, when I was just coming through the corner, I heard a scraping sound and looked into my rear vision mirror where I saw a shower of sparks. Almost immediately afterwards I heard a bang. I immediately stopped my bike, turned around and saw David lying under the side barrier rail. He was not moving. I saw his motor cycle in front of him.”
44 The defendant later said at p 8:
“On entering Grey Gums Rd. with David Guest still leading, we came up behind a small red vehicle travelling quite slowly. I saw that it was safe and legal to overtake both David and the car.
I noted in my rear vision mirror that David Guest had also overtaken the vehicle. At this point I also noted a sign with an arrow curving to the right and an advisory speed of 45 kph. I also noted double yellow lines in the centre of the road. I braked and changed down a gear, slowing my vehicle from an estimated 60 kph to an estimated 50 kph.
On entering the corner, I realized that the camber of the road was completely wrong and I could feel my bike wanting to steer towards the AMCO railing because of the camber. I again braked gently and changed down another gear, accelerating out of the corner.
As I came out of the corner I heard the sound of David’s motor cycle sliding along the road. I saw sparks in my rear vision mirror. I realised that David had come off his bike and came to a stop before turning around and riding back to where he was lying near the AMCO railing.”
“…I do not think that my slight braking would have any bearing on the course of events.”
45 At a subsequent date Mr Burns saw the defendant again and the defendant told him, at variance with his original statement, that he did not have to change gears in the bend, as he was in third gear when coming around the corner and only required two light touches on the brake to balance his bike.
46 The defendant said, and I accept, that he did not refer to his earlier statements, in order to refresh his recollection, before giving his evidence in this Court.
47 Mr McEwen submitted that the evidence given by the defendant established that he had no clear recollection of the relevant events. There were a significant number of responses which the defendant gave indicative of this lack of recall, he argued: “Not to my memory”; “Don’t recall doing that” (see para 23 above); “Would have clicked down a gear”; and “No memory of it” (see para 26 above). The defendant did not recall that there was an Armco barrier on the eastern side of Greygums Road on both sides of the intersection with Elk Place (T 181). Further, there was the evidence of Mr Burns to the effect that the defendant had varied the statement first made to him (see para 45 above) and the last questions and answers in cross examination of the defendant (T254A):
“Q. You are shaking your head. Had you felt in danger you had a number of options open to you including placing your right foot out to steady the bike bringing the bike to a complete stop because of your low speed. Did you tell Mr Burns that?
A. It doesn’t sound logical. If you say I said it I might have said it.
Q. I suggest Mr Burns recorded this as something you said at this meeting on 22 January 1992?
A. I can’t recall.”48 Mr McEwen submitted that I ought not to find the defendant’s evidence reliable.
49 In considering this submission and the competing versions of what occurred, I am mindful that the plaintiff was familiar with this crest, with the sharpness of the bend and with the camber of the road. The defendant was not. I am also mindful of the evidence given by the defendant acknowledging that the camber did affect the control of his motorcycle in the manner recorded earlier.
50 On the other hand if the plaintiff was some ninety metres behind the defendant when the latter disappeared over the crest, I would have expected that the plaintiff would have said so in the one of the earlier versions of the accident, when his recollection of events was fresher than it is now. Moreover, had the defendant gone over the crest as far ahead of the plaintiff as the plaintiff said in his evidence, there ought to have been time for the plaintiff to have seen the defendant’s position on the roadway and to have reacted to his presence in time sufficient to have taken safe evasive action. As to this feature of the case, Mr McEwen referred to the plaintiff’s evidence to the effect that when the defendant reappeared his position on the roadway was altogether unexpected: an “impossible position” (T124) rendering the plaintiff “totally shocked” (T7). Also, the plaintiff said that he did not immediately appreciate the danger presented by the defendant (T132):
“…when I came to first see him, he was, I thought at the time, that he was off, off to the left and was - we had been travelling side by side almost and I could only, I could only think that he was waiting - everything happened really fast and I thought he maybe - almost stationary, maybe something and as I continued, as I continued I got - seen the top half of him. Then I started to see the full picture. That’s where I meant about the, between 10, 20 metres of him coming across and like braking even further and coming across and across. Where I referred to a shorter distance, was when I realised that coming across would have been the time when I started braking. I didn’t see, my brain didn’t automatically register that there was going to be cause to brake. You really wouldn’t brake at all, going around that bend if you could help, I mean after the bend, or in the bend sort of. But it just became more apparent, which was hard to believe, that there was not going to be any space for me and that’s, that’s when the braking distance I saw was going to fail and that’s when I had to change my attitude to an extreme.”
51 On the other hand, I accept, that, allowing for reaction time, the plaintiff should have been able to drive his motorcycle to a complete halt in thirty metres. Mr Schuberg gave evidence that for a cyclist travelling at sixty kilometres per hour the stopping distance was twenty-nine metres, allowing for reaction time (T202-203). The plaintiff did not disagree with this (T132). Although the plaintiff said at one point that the defendant was only ten to twenty metres ahead when he “came upon him” (T72), it seems to me, heeding the evidence in point, that if the plaintiff was travelling as far behind the defendant as he now recalls he would have had the defendant in his vision once again when the defendant was some forty-five metres ahead.
52 Of course, this would be relevant to a consideration of contributory negligence if negligence first be proved, but it seems to me that it also assumes relevance in considering whether the plaintiff has proved on the balance of probabilities that the defendant was as far ahead of the plaintiff going over the crest as the plaintiff has stated that he was.
53 I have come to the conclusion that the plaintiff has failed to prove on the balance of probabilities that the motorcycles were ninety metres apart as they crossed the crest, or that they were apart by a distance approaching this. Mr McEwen submitted that even if I were to find that the plaintiff was only three or four cycle lengths behind the defendant I would still be satisfied that the defendant acted negligently in then changing speed and direction so as to cause the plaintiff to take evasive action. The difficulty with that submission is that the plaintiff’s case depends upon an acceptance of his version of the accident, and the feature at the crux of the plaintiff’s evidence given in the witness box is that the defendant disappeared from sight when he was ninety metres ahead. That is a very different version from a version, not given by the plaintiff in this Court, to the effect that when the cyclists were travelling close together the defendant suddenly changed speed and direction so as to cause the plaintiff to take evasive action.
54 I am acutely aware of the gravity of the injuries which the plaintiff has sustained and I have given this case much anxious consideration. However, having reflected closely upon the evidence of the parties in the setting of all the features of the roadway I have reviewed, I am not persuaded that the plaintiff’s version of events ought to be preferred to that given by the defendant, or that such version is accurate and reliable. Nor am I persuaded that the plaintiff lost control of his motorcycle by reason of anything that the defendant did or failed to do. I have concluded therefore that the plaintiff has not discharged the burden of proof that he bears in satisfying me on the balance of probabilities that the accident was caused by any negligence on the part of the defendant.
55 It follows that there must be verdict and judgment for the defendant.
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