Harvey v Hooper - [2010] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HARVEY -v- HOOPER [2010] WADC 68

CORAM: KEEN DCJ

HEARD: 28 & 29 APRIL 2010

DELIVERED : 14 MAY 2010

FILE NO/S: CIV 2431 of 2008

BETWEEN: WILLIAM RONALD HARVEY
Plaintiff
AND
STEPHANIE ROSE HOOPER
Defendant

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr K Pratt
Defendant: Mr B Lawrence

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: Lawrence & Howell

Case(s) referred to in judgment(s):

Nil

KEEN DCJ: On 21 April 2007 Mr Harvey was riding a Harley‑Davidson motorcycle in Bunbury. He had been to visit friends, had left and was on his way to see another friend at Australind.
His route took him down Blair Street in Bunbury towards a roundabout at the junction of Blair Street, Clifton Street, Casuarina Drive and Koombana Drive.
The traffic flow on the roundabout is defined by lane markings so that there are two lanes proceeding around the roundabout. Blair Street, on its approach to the roundabout, is also divided into two lanes in that direction. On entering the roundabout from Blair Street the first exit is Clifton Street, the second Casuarina Drive and the third Koombana Drive. Koombana Drive is also divided into two lanes in the section leading from the roundabout.
Whilst negotiating the roundabout Mr Harvey's motorcycle came into collision with a red Laser car driven by Ms Nadz (nee Hooper).
The issue before the Court relates solely to the question of liability.
Mr Harvey's case is that he approached the roundabout in the right‑hand lane of Blair Street. He negotiated the roundabout in the right‑hand lane of the roundabout past the Clifton Street and Casuarina Drive exits. It was his intention to exit into Koombana Drive and in doing so enter that road in its right‑hand lane.
Ms Nadz was at the time also negotiating the roundabout but on Mr Harvey's case was doing so in the left‑hand lane. As Mr Harvey started his turn into Koombana Drive Ms Nadz sped up and cut across the path of Mr Harvey's motorcycle. The front wheel of Mr Harvey's motorcycle struck the right rear panel behind the right rear wheel of Ms Nadz's car and Mr Harvey fell to the ground and sustained injury.
The defence case is that Ms Nadz left work that evening at the Coles supermarket to the south of the roundabout. It was her intention to travel home to Donnybrook. She entered Blair Street and headed towards the roundabout. It was not possible to make a right turn onto Blair Street and it was necessary for her to travel along Blair Street to the roundabout, negotiate the full extent of the roundabout so that, after completing a 360‑degree turn, she exited the roundabout at Blair Street and headed in a southerly direction.
Her case is that she proceeded along Blair Street towards the roundabout in the right‑hand lane and entered the roundabout with the right‑hand indicator of her car operating and negotiated the roundabout in the right‑hand of the two lanes.
At a point somewhere between the Casuarina Drive and Koombana Drive exit she felt a bump to the rear of her car. She stopped, got out and found that Mr Harvey on his motorcycle had collided with her and he was on the ground.
The principal issue in this case is as to which of the two lanes Ms Nadz was travelling in prior to the accident. Below that paramount issue there remains also the issue that, if Ms Nadz was negligent, whether and to what extent Mr Harvey was also contributory negligent. In particular in that regard it is said in the defence that Mr Harvey wrongly assumed that Ms Nadz had intended to exit the roundabout at Koombana Drive and that when she did not do so Mr Harvey was not then in a position to avoid the right rear-hand corner of Ms Nadz's vehicle.

The evidence

Mr Harvey gave evidence that it was late afternoon and the light was good. He said that he was approaching the roundabout and slowed down as he observed a car coming from Koombana Drive on his right. That car passed in front of him and then proceeded down Clifton Street.
Mr Harvey put on his right-hand indicator on entering the roundabout. He said that there were no other vehicles on the roundabout. He was travelling at between 40 and 50 kilometres per hour and it was his intention to exit at Koombana Drive and until then to stay in the right‑hand lane.
When he was at a point just past the exit to Casuarina Drive he looked for other traffic on that road. He said that he had his left‑hand indicator on to go into Koombana Drive and he was surprised to see the front end of a red car which he described as being next to him and in the left‑hand lane. He did not say why he would have been surprised to see another vehicle in this position. He identified the positions of his motorcycle on Exhibit 2A with the letter "P1" and the front of the car with "P2". Position "P1" is shown to the right of the dotted line in the roadway and on a line from the western edge of the entry of Casuarina Drive into the roundabout. Position "P2" is shown in the left lane just back from "P1".
He said that he braked but he hit the right‑hand rear panel of the car with his front tyre. He placed the point of collision at a point "P3" which is at about the centre of the road and opposite the right‑hand lane of Koombana Drive and where his motorcycle came to a stop at point "P4" which is just to the right of "P3".
Various photographs were produced of his motorcycle and of the car. The photographs of the motorcycle show what appears to be red paint on the front left‑hand fork and black scuff marks on the right rear fender of the car. There was no dispute that the red mark was from paint from the car and the black mark on the car was from the tyre of the motorcycle.
He said that after the accident the red car stopped and the driver got out and said to him "You tried to cut me off". Mr Harvey said he did not respond because he felt hurt, dizzy and shaken up. He said he had no other discussion with the driver of the car.
After that and within some minutes his friend whom he had been visiting, Jim Ireland, arrived with his partner Anita Quinn. Before they arrived the police had arrived at the scene.
Mr Harvey said that he tried to pick his motorcycle up but his friend (Ireland) took it off the road.
Mr Harvey said that he was questioned by the police officer and sat in the police officer's car while this occurred. He said that he was in a great deal of pain but he recalled telling the officer that the car had cut him off. In cross‑examination he said that he did not say this while sitting in the car but when he first got up off the ground by which I understand him to mean at the scene of the accident.
The officer wrote a statement which Mr Harvey signed at the scene. That statement (Exhibit 10A) makes no reference to the car cutting him off. Mr Harvey said that he was in so much pain he merely signed the statement and did not read it.
He was taken to hospital and then released and stayed overnight at Jim Ireland's house. The next morning they went to another friend's house. He said that somebody was reading the statement that he had made the day before and said "That's the wrong street. You weren't in that street". That statement refers to Mr Harvey entering the roundabout from Clifton Street. He said that he then spoke to a police officer to advise of the error and was told that the statement would be adjusted and typed up and that he could pick it up and sign it.
He said that his friend Ashley drove him to the police station. He remained in the car and the statement was brought out to him. This was a typed statement which he signed (Exhibit 10B). Again he said he did not read it because he was still in pain and had had no sleep that night.
The first statement (Exhibit 10A) contained a statement that "[A]ll I remember is entering the roundabout and being hit by another vehicle within roundabout" and "I can't remember much about the accident, I just remember falling off the bike and rolling on the road several times". The typed statement (Exhibit 10B) is in identical terms save for the correction of the name of the street in which Mr Harvey was riding on approaching the roundabout, namely Blair Street as opposed to Clifton Street.
In the course of cross‑examination he said that the other driver, Ms Nadz, had said to him that he had cut her off. He also said that she did not offer to assist him.
When it was put to him that all he had said in his statement was "All I remember is entering the roundabout and being hit by another vehicle within roundabout" and "I can't remember much about the accident, I just remember falling off the bike and rolling on the road several times", he said that he had told the police officer that another car had cut him off. When he was asked on a number of occasions why he had signed the statement in that form he said that he was in pain and he did not read it and he just wanted to get out of there. He said that he did not even know that it was a Ford Laser motor vehicle, although the statement refers to a Ford Laser. All he knew was that the car was red. He said that he had told the police officer that he was in a lot of pain and could not concentrate. He described the pain factor as being "beyond control".
He confirmed that he took the copy statement away with him. It was the next day that his friend said that there was an error in relation to the name of the street.
It was also put to him that at that stage he must have known that his allegation that Ms Nadz had cut him off was not in the statement. He said he did not think that it was important; it was the street name that was important. However, he agreed with counsel that what matters is who was at fault.
When pressed as to why he had not read the statement he also said that he had difficulty and was dyslexic. To demonstrate this he was asked, first, to read the typed statement which he did. He read the statement out loud quite satisfactorily. He missed some words and numbers, but otherwise there was no faulting his ability to read the statement. He then read the handwritten statement. He performed in the same manner, albeit somewhat more slowly and made a couple of mistakes. However he managed to articulate the words of the declaration at the end of the statement to the effect the statement was true and that if it was tendered in evidence and was not true he would be guilty of a crime.
In re-examination he was asked by his counsel to read passages from his statement which contained numbers which he had omitted previously and he managed this without difficulty or error.
Mr Harvey was asked whether he had heard Ms Nadz say that she had not seen him prior to the accident and he said that he heard that in the background. In re‑examination he said that the voice was fairly close.
It was put to him that he attempted to go round the side of Ms Nadz's vehicle because he believed that she was leaving the roundabout at Koombana Drive as well. Mr Harvey maintained that she was in the left lane. He did not say how Ms Nadz being in the left lane affected the position or why he would assume that she was leaving the roundabout at any particular exit. There was no evidence that he saw her indicate her intention nor did he give any evidence about his knowledge of the requirements of the Road Traffic Code (Code) which I will come to.
Police Officer Trevor Grant Rigby was called by the defence. He attended the scene of the accident and confirmed that the handwritten statement (Exhibit 10A) was in his handwriting. He recalled attending at the scene and taking the statement. He said that his usual practice was to take a statement as soon as possible after the events to obtain the person's knowledge of the event. He said that after writing the statement down and before it was signed he read it out to Mr Harvey and gave it to him to read and explained the declaration.
He said that the following day he typed up the statement as it is then easier to read and transcribed what was put down originally. He could not recall the circumstances of the second statement. Under cross‑examination he recalled taking the statement in the police car in the carpark opposite the cinema shown as the entertainment centre on Exhibit 1. He was asked whether it could be the case that more had been said than appeared on the statement. He replied that he put down all the information given. It was specifically put to him that it could be the case that Mr Harvey had said that the car came from his left and cut him off. The officer said that he did not remember but it could be but in re‑examination he said that if he was told of the cause of the accident he would expect to have seen that in the statement that he prepared.
Mr Harvey's friends who attended the scene, James Ireland and his partner Anita Quinn, also gave evidence.
Mr Ireland said he received a call from Mr Harvey and left his home to go to Mr Harvey. He was with his partner Ms Quinn. He said it was dusk, heading towards dark and he had his headlights on.
He said that when he arrived Mr Harvey was at the roundabout near his motorcycle. He marked a plan (Exhibit 2B) with the position of the motorcycle shown as "JI 1" and the position of the red Laser car at "JI 2". These positions were either side of the dotted white line shown on the plan with "JI 1" being on the right‑hand lane close to the dotted line and in a line with the western edge of Casuarina Drive where it enters the roundabout and "JI 2" on the left‑hand lane close to the dotted line on an extension from the centre line of Casuarina Drive.
He did not think that there were road markings on the road at the time.
He said that when he got there the police officer asked for the vehicles to be moved. He said Mr Harvey went to move his motorcycle but he could not do it and so he (Mr Ireland) pushed the motorcycle to the carpark. This carpark which is referred to by a number of witnesses is a carpark which is shown on Exhibit 1 either as a small rectangular box or a larger rectangular box to the east of Blair Street and below the words "707 Reserve 40834". Mr Ireland did not say from where he had moved the motorcycle and this will become material when I come to the evidence of Mr Erdmann.
Mr Ireland said that Mr Harvey was seated in a police vehicle in the carpark and he, Mr Ireland, was standing at the passenger door. He said that the other driver, Ms Nadz, was about 20 metres away standing at the back of her car with someone else. While standing there he said that he heard Ms Nadz say words to the effect that she had had to go back into town as she had forgotten something.
He said that Mr Harvey told the police officer that he had travelled down the road where there had been a Harley shop on the left. He said the police officer asked whether it could have been Clifton Street and he (Mr Ireland) replied "No" because if Mr Harvey had passed the Harley shop then that is nowhere near it (Clifton Street). He said that Mr Harvey said that the Harley shop was on his left. He recalled Mr Harvey saying that he did not know the names of the streets.
He said that Mr Harvey asked the police officer to hurry up, but other than that all he heard Mr Harvey give was his name, his address and which street he was on but not being sure of the name of the street.
He said that the policeman and Mr Harvey were speaking for about five minutes during which Mr Ireland said that he was telling the police officer that they needed to get Mr Harvey to the doctor.
He saw the police officer writing something down, but he did not hear any further words spoken and he did not see Mr Harvey sign anything that night.
In examination-in-chief he had said that he was only 10 minutes away from the scene when he received a phone call from Mr Harvey. Under cross‑examination it was put to Mr Ireland that it would have taken him at least 15 minutes to get from home to the scene of the accident. He denied that.
As to the statement made by Mr Harvey, Mr Ireland agreed that he had been told enough to tell him that Mr Harvey was unhappy with his statement.
When questioned as to where they were when the statement was being taken he marked Exhibit 1 with markings where the police car was in the carpark and where Ms Nadz was with her motor vehicle.
Anita Quinn confirmed that after receiving the phone call from Mr Harvey they went straight to the scene of the accident and it took them 10 to 15 minutes but no longer.
She was also asked as to the position of the vehicles when she arrived. She marked Exhibit 2C with the letters "AQ 1", being the position of the motorcycle and "AQ 2" as the position of the front of the car. Those positions are respectively to the right and to the left of the dotted white line, almost opposite the centre of the Casuarina Drive entry into the roundabout.
She saw another man with Ms Nadz at the time.
She said that she heard Ms Nadz say a couple of times that she did not see him (Mr Harvey). She was about 6 metres away when she heard this. She also said she heard Ms Nadz say words to the effect "This wouldn't have happened if I didn't have to go back into town". She did not hear anything else that may have been said. Under cross‑examination she was asked where Ms Nadz was when she said these words and said that both sets of words were spoken in the same place. She did not identify precisely where that was but confirmed that it was near to where she placed her marks on the plan (Exhibit 2C) with the letters "AQ 1" and "AQ 2" rather than in the carpark further south.
Ms Quinn said that her partner helped to move the motorcycle from the roadway and then he joined [us] in the carpark.
In examination‑in‑chief she said that the police officer took a statement from Mr Harvey in the carpark and that when the officer asked as to which direction he had taken Mr Harvey had said a few times that he had passed the Harley shop and he in fact pointed towards the road. She also did not see Mr Harvey sign the statement.
She said that she heard Mr Harvey tell the officer what his intentions were for leaving the roundabout and as he had gone to take the exit of the roundabout the car had come across and hit him and knocked him to the ground. Under cross‑examination she said that he did not say this on the way to the carpark but in the carpark and while he was still standing.
Ms Nadz, told the Court that she worked at Coles in the Bunbury Centre. She finished work and was travelling home to Donnybrook. She left the centre and turned left into Blair Street as she was not able to do a right turn into Blair Street. She then headed north on Blair Street until she got to the roundabout. She said that she had got into the right lane to go right around the roundabout and back out to go down Blair Street again. She said that she always took that route.
She said that she approached the roundabout in the right lane and put her right indicator on and remained in the right lane, travelling at between 45 and 50 kilometres per hour.
She said she heard a thud which she thought was a bird and she stopped straightaway and saw Mr Harvey's motorcycle on the ground. Mr Harvey was starting to get up and she asked him if he was okay and needed to go to the hospital; he said no.
Quite by chance her uncle, Geoffrey Erdmann, arrived at the scene at that time and came to help her. In cross‑examination she said that he arrived less than five minutes after the accident.
She said the police then arrived and after having moved her car to the carpark she gave a statement to the police and it was towards the end of giving the statement to a police officer that Mr Harvey's friends "rocked up".
She said that her car was moved on two occasions; first from the scene of the accident to the verge on the left of the road on the roundabout by the island separating the entry and exit to and from Koombana Drive and then to the carpark.

Ms Nadz said that at no time did she accuse Mr Harvey of cutting her off, nor did she say that she had to go back because she had forgotten to do some shopping.
She marked Exhibit 2D with where the accident occurred as being at point "DAC". The position of the motorcycle when she got out of the car was marked as "DC". She also marked the plan with the letters "DV" being the position where the car had stopped.
She was asked to mark the plan with the letters "DP 1" as to where she first parked the car and that is to the left-hand edge of the road on the roundabout approximately halfway along the dividing island between the entry and exit roads of Koombana Drive.
Her evidence was that the car had been moved by the time Mr Harvey's friends arrived but she did not think that the motorcycle had been moved.
She agreed that the scuff marks on her car shown on Exhibits 8A to 8D arose on the night of the collision.
She also agreed that she may have used the words "I did not see him" at the scene.
Under cross-examination she denied saying words to the effect that if she had not gone round the roundabout this would not have happened or that Mr Harvey had cut her off. She agreed that she did not make enquiries at that time as to how the accident had happened; she merely heard the thud and she assumed that Mr Harvey had hit her from behind and she did not see him.
She denied the suggestion that she could have been in the left-hand lane and that she had tried to overtake Mr Harvey in that left-hand lane. She said that she never saw Mr Harvey and that at no time was Mr Harvey's vehicle in front of her.
She agreed that she braked straightaway after the accident and came to a halt and said that she stopped within about a metre. Prior to that she had been doing 45 to 50 kilometres per hour.
When she got out of the vehicle she said the motorcycle was at the far end of her car. Under cross-examination on Exhibit 2E she marked the plan with the letters "SRN" in a box as being where the rear of her car stopped and a box containing "WRH" as being where the motorcycle was when she first saw it. Given that her evidence was that she had not seen it before the collision I must assume that the box "WRH" is where she first saw it lying on the ground.
Her drawing of SRN in a box straddled the dotted line in the middle of the roadway on the roundabout. It was put to her that her car had strayed outside the right lane and partly into the left lane after the accident but she did not agree and said that she was not a good drawer and proceeded to scribble out the part extending into the left lane.
She denied the suggestion that the motorcycle was moving slowly in the right‑hand lane and that she moved into the left lane to try to overtake it. When asked whether there was anything wrong with overtaking on the left‑hand lane she said that she would not do it on a roundabout.
She was further questioned about her negotiating the roundabout. She said that she had her headlights on as it was nearly dusk. She said that she was looking for other traffic both behind or in front, but did not see any. She looked in her rear vision mirror. She marked Exhibit 2E with the letters "RVM" to indicate the position. That was in the right‑hand lane shortly before where she described the collision to have occurred. She said she did not see another vehicle nor any lights or hear any noise. It was seconds before the accident, she thought about 10 seconds, and between that point "RVM" and the accident was a couple of metres or more and (by reference to distances within the courtroom) it was suggested about 8 metres.
Under re-examination she readily accepted that she had no skill in estimating time and distances and she merely heard the thud, braked as quickly as she could and got out of the car.
Geoffrey Charles Erdmann, Ms Nadz's uncle was coming into Bunbury with his wife in order to purchase some takeaway food.
At the roundabout he observed the accident and realised it was Ms Nadz. He said that the motorcycle was just by the side of the car.
He had come down Koombana Drive and he stopped at the Give Way sign in the right‑hand lane and put his hazard lights on and walked over to where the accident was.
He said Mr Harvey was standing between the motorcycle and the car and still had his helmet on.
He marked Exhibit 2F with the letter "P" being the position where he parked and with the letter "X" being the position of the motorcycle and drew a square as to the position of the car. The motorcycle was in the right‑hand lane just past the entrance to Koombana Drive. The car was forward of that by a short distance and straddling the dotted line.
He said that he assisted Mr Harvey to move his motorcycle off the road and to the island which was next to where Mr Erdmann's car was stopped. He marked the plan (Exhibit 2F) with the letter "M2" to show where they moved the motorcycle to being on the traffic island in Koombana Drive. He also depicted on the plan a box with the number "2" showing the position to where Ms Nadz's car was then moved, by the side of that traffic island.
He said after they had moved the motorcycle he and Mr Harvey stood on the island and Mr Harvey then telephoned someone. He thought that was about five minutes after he had arrived.
After the police arrived Ms Nadz drove her car to the carpark and there a police officer came over to Ms Nadz and took a statement from her. That took about 10 to 15 minutes.
He recalled that Mr Harvey's friends arrived about 10 or 15 minutes after they had got to the carpark. He described that his wife had left the scene to continue to go and get the takeaway and she had just got back when Mr Harvey's friends arrived. He thought that Mr Harvey's friends arrived pretty well at the time that the police officer had finished taking the statement from Mr Harvey, but he agreed that he was far enough away that he would not have heard what was being said. He said that one of the friends brought the motorcycle from the traffic island to the carpark.
He said that when he arrived at the scene of the accident he was sure that Ms Nadz's car still had its "flicker" operating. Under cross‑examination he said that the car did not have its motor running when he first saw it and he could not say if it still had the headlights on, but that the flicker was on the right side.
His recollection was that the lane markings on the road at the time were as shown on the plan.
He was taken to the phone call made by Mr Harvey and it was suggested to him that he could have made an earlier call. Mr Erdmann did not think so because Mr Harvey still had his helmet on and removed his helmet to make the phone call and pulled the phone out of his pocket.
As to the position of Ms Nadz's vehicle straddling the white line he thought it was perhaps half in the right and half in the left-hand lane.

Rationalisation of the evidence as to the position of vehicles shown on the plans

Apart from the fact that all witnesses placed the vehicles in the same quadrant of the roundabout there is a difference between where Mr Harvey and his witnesses say that the vehicles were and what Ms Nadz and her uncle say. Mr Harvey's evidence and that of his witnesses places the vehicles further away from the exit into Koombana Drive whereas Ms Nadz and her uncle place the vehicles closer to that exit and indeed beyond the point of exit.
It seems to me that if I accept the evidence of Mr Erdmann that when he arrived Mr Harvey's friends were not there and that he assisted Mr Harvey to move his motorcycle to the island and that Mr Harvey's friends did not arrive until the statements were being taken in the carpark then their evidence as to the position of the vehicles on the roundabout cannot be correct. They would not have been at the scene at a time when the vehicles were still on the roundabout.
I will come to my findings on the evidence shortly, but it seems to me in any event that given the many variables that may exist in the way accidents occur and the aftermath of them, it would be highly speculative to try to establish the path or final resting place of vehicles after the collision even if one could establish with any degree of certainty where the actual collision took place. It is frequently the case that positions of vehicles after an accident are plotted onto plans by police officers and other persons experienced in doing so and for the purposes of investigations. That is not the case here.
Further, it is notorious in cases such as this that when people are asked, some time after the event, to try to estimate such things as the time elapsing between various events and precise positions of vehicles that they do have real difficulty and the results of their attempts to do so should be treated with caution.
Accordingly, it seems to me that it would be entirely speculative to try to determine this case on where the respective vehicles ended up after the collision assuming that one could make a determination from the evidence as demonstrated on the various plans. I accept that the parties in this case were trying to do the best that they could to identify the positions of the vehicles at various times although perhaps influenced by their own positions in the proceeding. Without expert evidence as to the possible behaviour of vehicles in a collision such as the present it is difficult, if not impossible and it would involve speculation for me to make a determination of those matters. There was some evidence given of a second police car arriving at the scene and photographs being taken, but these were not in evidence.

The parties' submissions

In the end it seems to me that the case falls to be determined by an analysis of the oral evidence and other material not in dispute to see whether or not Mr Harvey has satisfied his burden of proving the case on liability on the balance of probabilities. Indeed, that is essentially how the defence closed its case by asking the question whether I can accept Mr Harvey's current version of events in contrast to the two statements that he made previously and in particular in relation to the second statement where he took the trouble to correct the name of the street but not the substance of the statement.
Mr Harvey said that before making his statement he had told the police officer that Ms Nadz had cut him off. Mr Ireland gave no evidence that he heard such a statement, although Ms Quinn said she heard words to that effect. The defence says that if that was said then that would be a dereliction of duty on the part of the police officer not to note it in the statement. Indeed, it seems to me, it would be entirely contrary to the content of his statement that all he could remember was entering the roundabout and being hit by another vehicle within the roundabout and that he could not remember much about the accident, just falling off the bike and rolling on the road several times.
Ms Nadz's position is that she did not see Mr Harvey prior to the accident. The case theory put forward on her behalf is that Mr Harvey must have thought that Ms Nadz was going to leave the roundabout at Koombana Drive and attempted to overtake her at that time. That the defence says was an inherently dangerous action and on that basis Mr Harvey should fail.
Mr Harvey's case is that Ms Nadz's evidence was all over the place as to the position of vehicles, time and distances. It points out that both she and her uncle placed the car partly out of the right-hand lane, but that was then inconsistent with what she said in evidence when she tried to correct the position on Exhibit 2E.
In written submissions, relied upon by counsel for Mr Harvey in closing, it is said that Ms Nadz did not see Mr Harvey because of the speed at which she was travelling and that Mr Harvey might reasonably have expected and anticipated (given the configuration of the roundabout) that any vehicle in the left lane "would have already exited the roundabout or would be exiting the roundabout at Blair Street (sic Koombana Drive)".
It is also said that as Mr Harvey was about to exit the roundabout at Koombana Drive Ms Nadz vehicle at some considerable speed cut across his path (from his left‑hand side) as she attempted to continue around the roundabout in the left‑hand lane and the collision occurred.
In opening submissions counsel for Mr Harvey referred to the Code, r 92, for direction as to the appropriate lane to use when negotiating a roundabout depending upon which exit is to be taken. It is clear that the Code requires a motorist to use the right lane if leaving the roundabout more than half way around as both Mr Harvey and Ms Nadz were doing.
It is argued on Mr Harvey's behalf that Mr Harvey gave an explanation as to the making of the statement and that Ms Quinn gave evidence consistent with Mr Harvey's version of being cut off, but that did not find its way into the statement.
Mr Harvey's counsel, whilst accepting that credit and demeanour are important in a case such as this, argued that the objective facts comprising the damage to the vehicles and Ms Nadz's marking of the plans all support Mr Harvey's case.

Findings

I am satisfied on the evidence that Mr Harvey did enter the roundabout from Blair Street and did proceed around the roundabout until the collision occurred.
I am also satisfied on the evidence that Ms Nadz did likewise. I find that she was returning home from work and that to do that it necessitated that she travel up Blair Street and negotiate the roundabout for its full 360 degrees so that she could travel back down Blair Street. She was not challenged on this as being her normal route from work. I am not satisfied that she was taking this route for any reason said to be expressed in words said to have been overheard but in any event, in my view, it matters not in the final analysis.
I have no reason to doubt Ms Nadz's evidence as to the way in which she negotiated the roundabout. She said that she was in the right lane and firmly stayed with that version of events. I am satisfied that that was so and I so find. She also said and I accept that she did not see the motorcycle at any time until after the collision.
I find that Mr Erdmann did arrive on the scene very shortly after the accident. He was unchallenged as to his evidence that he assisted Mr Harvey to move his motorcycle to the traffic island and was left unchallenged as to his evidence that Mr Harvey's friends, Mr Ireland and Ms Quinn, did not arrive until after the statements had started to be taken in the carpark. I find that to be the case and the evidence about the position of the vehicles given by Mr Ireland and Ms Quinn cannot be accepted and I do not accept it.
Further, whilst Mr Harvey said that Mr Ireland assisted him to move the motorcycle from the road I accept that it was Mr Erdmann who did so and Mr Harvey is mistaken in this regard. Mr Ireland only speaks of moving it to the carpark. Whilst Ms Quinn said that her partner helped to move the motorcycle from the roadway and then he joined them in the carpark I am of the view that she is right as to moving the motorcycle to the carpark but mistaken as to moving it from the roadway.
Mr Erdmann was careful in the giving of his evidence. In my view he did not seek to favour his niece. He clearly placed her motor vehicle as straddling the broken line on the road. He was cross‑examined as to whether or not the positions were accurate and he said he had no problem with transposing information onto the plan. Again to determine why Ms Nadz's vehicle stopped straddling the dotted line (if that be the case) would be mere speculation, but it does not lead to a finding that Ms Nadz was in the left-hand lane as argued for by Mr Harvey.
I have accepted Ms Nadz's evidence that she remained at all times in the right‑hand lane. According to Mr Harvey the first time that he saw her car it was in the left-hand lane approximately adjacent to the entry from Casuarina Drive. I am not prepared to accept that evidence. In my view the statements made by Mr Harvey to the police are telling in this regard. He makes no mention of where the car was despite referring to the car. I am prepared to accept that he did not say it was a Ford Laser or give its registration number and that this information was probably added by the police officer from the information obtained at the scene.
Further, even if it were the case that Ms Nadz was in the left lane Mr Harvey gave no evidence as to why he should have or did assume that she was exiting at Koombana Drive and not continuing around the roundabout especially as there was no evidence from him that she was signalling to turn left. Indeed her evidence, which is supported to some extent by Mr Erdmann, which I accept, is that she was signalling to the right. That part of the submission that Mr Harvey might reasonably have expected and anticipated (given the configuration of the roundabout) that any vehicle in the left lane would be exiting the roundabout at Koombana Drive is again speculation. He did not give evidence that that was his assumption based upon any understanding of the requirements of the Code or otherwise.
In addition the suggestion in the written submission that Ms Nadz vehicle at some considerable speed cut across his path (from his left‑hand side) as she attempted to continue around the roundabout in the left‑hand lane is also not supported by evidence from Mr Harvey. Again this allegation did not find expression in his statement and in the absence of evidence such a proposition is either an attempt at reconstruction or more probably speculation.
Mr Harvey had just been knocked from his motorcycle and was injured. The extent of the injury has not been made known to me. In his statement to police he refers to receiving minor injuries to his left shoulder and left knee. As I have noted in his statement he makes no mention of any of the matters referred to in his submissions nor of seeing Ms Nadz to his left nor of him indicating to his left and all he said was that all he remembered was entering the roundabout and being hit by another vehicle within the roundabout and that he could not remember much about the accident, he just remembered falling off the bike and rolling on the road several times. This was Mr Harvey's opportunity to give his version of events if someone else was to blame. I do not accept his explanation that he was in too much pain to care. Whilst I am prepared to accept, even without evidence, that he suffered some injury and was in some pain, nevertheless he had managed to assist in the moving of his motorcycle from the scene of the accident to the traffic island, then telephoned his friends and then walked down to the police car in the carpark in order to speak to the police officer. One might be able to accept that one or two details of the accident might be omitted in the agony of the moment just after an accident but not all of the material detail of an accident which might point to blame on the part of someone else.
I do not accept Mr Harvey's evidence that he told the police officer that he had been cut off. This is notwithstanding that Ms Quinn gives similar evidence. Mr Harvey says that he said this on the road having just got up. I accept the evidence of Mr Erdmann that at the time he arrived at the scene Ms Quinn was not there and she did not arrive until later. She said that this was said in the carpark. I accept the evidence of Officer Rigby that had he been told he would have expected to have put it in the statement. I am not satisfied that Ms Quinn heard any such statement at the scene. Her evidence and that of Mr Harvey are in conflict and whilst not doubting that Mr Harvey may have said something to this effect to her at some time, I am not satisfied that it was at the scene and to the police officer. Mr Ireland was at the car door and he made no mention of hearing this statement. In that case such a statement is inadmissible. It is hearsay and not part of the res gestae.

I accept the evidence of the police officer Mr Rigby as to his usual practices when obtaining evidence and reading the statement over to the maker and find that this occurred on this occasion. Even if I were wrong on that it is clear that an error occurred in the statement with the naming of the street from whence Mr Harvey came. Whether that was Mr Harvey's error or that of the police officer is immaterial as Mr Harvey was at pains to ensure that that was corrected the following day. It simply beggars belief that in making that correction Mr Harvey would not have read the statement at some stage. His explanation was that he was dyslexic. However under testing in court that did not stand up and it became quite clear that he was a very capable reader. He had no difficulty with the statement, whether typed or handwritten nor even with the more difficult concepts of language contained in the declaration at the end of the statement.
His further explanation that, having made one change to the statement, he did not think that he had the opportunity to make further changes also does not stand up to scrutiny. This action was commenced by him by writ dated 7 October 2008. It was filed by solicitors on his behalf. Accordingly, there has been a period of 17 months in order for Mr Harvey to correct the record but he has not done so even with the benefit (one assumes) of legal advice and there is no explanation as to this.
Mr Harvey's evidence in court is inconsistent with his prior statement. Whilst it is his evidence in court that is the evidence in this case and not the prior statement, where there has been an unsatisfactory explanation for an inconsistency in that prior statement such matters reflect upon his credit. I find that the explanations given for that inconsistent statement are not satisfactory and I do not accept them. I do not accept the version of events now given by Mr Harvey as to how this accident occurred. In my view the position as explained in his statement to the police is the more likely, that is that he has no real recollection of the events. Mr Harvey has given no satisfactory explanation as to why he only said that which he did or why it is that he is now able to give a version of events with detail.
I am not satisfied on Mr Harvey's evidence that the accident occurred as he alleges and given that Ms Nadz's evidence was that she did not see the motorcycle prior to the accident I am not prepared to speculate further as to how the front forks of the motorcycle came into collision with the right rear fender of Ms Nadz's car.
Having regard to the findings that I have made as to the use to which I can put the material contained on the various plans exhibited and irrespective of my findings in relation to Ms Nadz's evidence, Mr Harvey has failed to satisfy his burden of proof in this matter that Ms Nadz was negligent as alleged.

Conclusion

In the circumstances Mr Harvey's claim should be dismissed.