Hipworth v TAC

[2021] VCC 1972

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION
GENERAL LIST

Revised
Not Restricted
Suitable for Publication

Case No. CI-18-01436

DEAN HIPWORTH	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28, 19, 30 September 2021, 1, 4, 5, 6, 7 and 12 October 2021
DATE OF JUDGMENT:	10 December 2021
CASE MAY BE CITED AS:	Hipworth v TAC
MEDIUM NEUTRAL CITATION:	[2021] VCC 1972

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Alleged incident between Vespa and four-wheel-drive-type vehicle – Plaintiff’s description of incident given at Trial was different to description previously given – Plaintiff’s description of incident not probable when regard is had to the expert evidence – Plaintiff’s evidence was unreliable

Legislation Cited:      Evidence Act 2008 (Vic)

Judgment:                  Claim dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The Plaintiff appeared in person
For the Defendant	Mr J Ruskin QC with Mr S Gladman	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

1Mr Dean Hipworth alleges he was knocked from his Vespa motor scooter by a four-wheel-drive-type vehicle when it crossed onto his side of the road. If that can be proved then Mr Hipworth would succeed in his claim in negligence. However, the Defendant here denies the incident occurred in the way Mr Hipworth alleges.

2For Mr Hipworth’s case to succeed, I am required to be satisfied on the balance of probabilities that the transport incident happened in the circumstances as he alleges. I am not satisfied that the transport incident occurred in the manner Mr Hipworth alleges. I make this finding after having regard to the inconsistencies in the different versions of the transport incident proffered by Mr Hipworth. The expert evidence of Mr William Keramidas, which I accept in preference to that of Dr Peter Hart, also tells strongly against Mr Hipworth’s case.

Background

3The background facts of this matter are non-controversial and need only be set out very briefly. The Plaintiff was born in October 1963. He grew up in Melbourne and had a somewhat difficult home life. He moved out of home at a young age and completed high school to Year 11 at Oakleigh High School. He attempted a plumbing apprenticeship, but did not complete it. He was a very capable footballer, but suffered a right knee injury, being a torn ACL, for which he had a reconstruction at a young age. He then moved into work in real estate in the early 1980s and has remained in that industry since that time. He has had generally good health. He was married from age 22 to age 39. There was one son from this marriage. He and his wife divorced in the late 1990s. He had a short period around the time of his sister’s death where he sought some counselling, but otherwise his mental health was unremarkable. He married Ms Kerry Di Natale, shortly after his first marriage ended. He remains married to her presently, but they are separated.

4In the early 2000s he moved into real estate development and marketing. Particularly, he ran two companies known as Hippo Holdings Pty Ltd (“Hippo”) and Real Estate Real Easy Pty Ltd (“RERE”). He also had a commercial rental property in Bali, Indonesia, which he rented out and derived income from.

5In the months immediately prior to March 2015 he was self-employed through both of these businesses full time. He had a range of friends and social contacts. On his evidence, he was happily married to Ms Di Natale. They lived in a unit on St Georges Road, Toorak. They otherwise owned a property at Phillip Island, and regularly travelled to Bali, where their rental property was.

The circumstances of the incident

The layout of Lansell Road

6Lansell Road is located in Toorak and intersects with St Georges Road. The best diagram of the scene where the incident occurred is located in the Joint Expert Report (“JER”) at Defendant’s Court Book 463. Photographs of the scene were tendered in evidence as Exhibits P1, D1, D2 and D3. The scene is depicted in Annexure A. These diagrams and photographs set out the scene of the incident clearly. As can be seen from the diagram in the JER, a laneway runs behind houses which face onto St Georges Road. That laneway runs behind the houses, down to Lansell Road. The laneway ends at Lansell Road, and if a driver turns left, the driver will proceed in the direction of St Georges Road. Lansell Road and St Georges Road intersect at a roundabout. Just prior to the roundabout, Lansell Road has a slip lane for traffic proceeding up Lansell Road, to take if they want to merge onto St Georges Road.[1] Between the laneway and the roundabout there are a series of four speed humps. These speed humps are 23.5 metres from the point where the laneway enters Lansell Road. From the laneway to the roundabout is approximately 70 metres.[2] This means from the speed humps to the roundabout is about 46 metres.[3]

[1]Defendant’s Court Book (“DCB”) 444

[2]DCB 381

[3]DCB 382

7The roadway was about 12 metres wide and curved slightly from the roundabout to the right as a driver proceeds down Lansell Road. From the roundabout to about 10 metres short of the speed humps, there is a solid dividing white line. The speed humps are four separate blocks. They are separate moulded rubber segments and run from one gutter to the other across Lansell Road. Each rubber segment is 2 metres by 2 metres in length and width. There were four segments positioned across the road as at March 2015, with gaps of 800 to 900 millimetres between each of them.[4] It is to be noted that the centre of the road was free of speed humps, however there was no white dividing line that marked the centre of the road between the two centre most speed humps.

[4]DCB 382

8About 10 metres past the speed humps towards the roundabout was a defect in the road caused by an unknown surface problem. Just prior to the roundabout and slip lane were pedestrian “islands”. The relevant slip lane pedestrian refuge was about 43 metres after the speed humps.

The incident

9The Plaintiff was the only one who gave evidence about the circumstances of the incident. He gave evidence that on 29 March 2015 he left his property on St Georges Road. He gave evidence that he had decided to go to the shops to buy food for a barbeque later that day. He went to the rear of the property where there was a garage. In that garage, he had a Piaggio Vespa motor scooter. It was off white in colour. This was a second-hand motor scooter he had purchased sometime previously. I have set out below the Plaintiff’s sworn version of events in some detail because it was a central point of controversy between the parties. He gave evidence that he wheeled the Vespa from the garage and mounted it. He was wearing a helmet and gloves at the time. He was also wearing blue jeans and a white t-shirt, with leather shoes. He mounted the Vespa in the laneway and rode it to the end of the laneway at the intersection with Lansell Road. He then gave the following evidence in evidence in chief:[5]

“I looked left first and it was clear, so then I looked to the right and focused a bit more carefully and then I was good to go so I pulled out into the centre of the road and headed towards the roundabout on St Georges Road and out of the very corner of my eye I could see that a vehicle was exiting the roundabout up in the top corner, turning left into Lansell Road. The vehicle was a four-wheel drive in size and it was red, maroon, burgundy or something similar in colour. It appeared to be moving quickly and was following the centre of the road white line marker.

All I can remember clearly is that I went to the left of the centre line marker and in between the approaching speed bump before me. I noticed that the four-wheel drive still seemed to be seemingly heading towards me but I knew that the roadway deviates quite sharply some 20 metres in front of me. The next second I noticed that the four-wheel drive isn't deviating along the same way as the road direction and he/it/she is now encroaching into my side of the roadway very slightly.

I remember leaning the bike to the left to move out of the path of the four-wheel drive. Next, I just heard a noise and then felt everything was going slow and I remembered to try and brake very hard to stop the bike. Next second, and I can't remember in order, but I think the scooter started sliding and then I felt the scooter flip and then it landed on me, but I can't say exactly where.”

[5]        Transcript (“T”) 98, Line (“L”) 26 ꟷ T99, L23

10He went on to say in evidence that he was travelling at around 20 to 30 kilometres per hour at the time of the collision.[6] He stated that he became conscious when he was in the gutter opposite the traffic refuge next to the slip lane. He gave evidence that the scooter came to rest upon the concrete and bluestone road divider just short of the intersection and roundabout.[7] He marked on Exhibit P1 the location of where the scooter ended up.

[6]T99, L27-28

[7]T101, L18-20

11Many of the details of this version of events came under sustained attack. I will set out these areas of controversy later on in greater detail, however I will continue with the chronology at this point.

12After the incident, the Plaintiff gave evidence that he felt sore and bruised. He gave evidence that he was helped up by two elderly people, but he stated that he did not have their details and they were not called to give evidence. He was able to walk, however, so he picked up the scooter and walked it home. He gave evidence that it has not been used since this time. After arriving home, he realised he was not in good shape and drove himself to the Alfred Hospital. While there, Mr Hipworth had scans which cleared him of any structural damage and he was sent home. His wife came to pick him up and he told her that he had been involved in an incident ꟷ but she did not give any evidence of the details that she was provided with by Mr Hipworth. Some weeks later, on 19 May 2015, his wife told him to see his treating doctor, given he was in ongoing pain. He did this. He saw his treating doctor, Dr Peter Lewis, on 19 May 2015. He sent him for scans of both his left wrist and right ankle. Both showed breaks. He also encouraged Mr Hipworth to file a police report and a Transport Accident Claim form. Mr Hipworth did both these things shortly thereafter.

13Dealing briefly with the medical history. Mr Hipworth ultimately came to have surgery on the left wrist on 15 July 2015 under the care of orthopaedic surgeon, Mr Ash Chehata.[8] He also had a triple fusion of the right ankle under the care of Mr Williams Edwards, orthopaedic surgeon.[9] He has developed Complex Regional Pain Syndrome Type 1[10] and a very significant psychiatric reaction to his injuries.[11] He gave evidence that he has not worked at all since the incident, that he has tried to commit suicide, and that he has had to endure “six years of hell”.

[8]Plaintiff’s Court Book (“PCB”) 36

[9]PCB 24

[10]PCB 70

[11]See the report of Dr Alan Jager at Exhibit P4 and email from Dr Jager’s office at Exhibit P5

14Turning, then, to consider the central issue in the case: Did the incident occur in the way the Plaintiff described in evidence? I find there are two main reasons why Mr Hipworth’s version of events cannot be accepted. First, the expert evidence of Mr Keramidas contradicts his version categorically. Second, there are such inconsistencies in his version of events that I cannot be certain, on the balance of probabilities, which is the version to be accepted. These topics overlap at various points, but I have identified each topic separately below.

Inconsistency with the expert evidence

15Expert evidence in the case was tendered from three experts. Dr Adrian Grosvenor, a materials expert engineer, who commented on the paint markings found on the Vespa. He opined that the paint on the right rear panel is consistent with paint from a car, but also consistent with being from other surfaces. Mr Keramidas, an accident reconstruction engineer who provided opinion for the Defendant, and Dr Hart, a consulting engineer, who provided opinion for the Plaintiff. The first opinions of Mr Keramidas and Dr Hart were compromised because they were given in respect of the wrong location as to the incident. Their second reports focused on the correct location. They further produced a JER in response to questions settled by the Court and the conduct of an expert conclave. Both Dr Hart and Mr Keramidas appeared in a joint session before the Court. They agreed on many of the questions posed for their consideration. However, the areas of disagreement fell into the following categories. In each of those categories, I find the evidence of Mr Keramidas is to be preferred. I have set out why this is so under each topic, but I have also come to that finding having considered all of the evidence. I state here, before the analysis, that both Mr Keramidas and Dr Hart both gave evidence in a straightforward and helpful manner. I consider that while they disagreed on some matters, it was a professional disagreement and not one borne out of advocacy for a particular party. The JER was similarly expressed. To come, then, to each area where the expert evidence was inconsistent with the incident and how it happened as recounted by Mr Hipworth.

(i)     The angle of impact

16On the Plaintiff’s version of events prior to Trial, he stated in his Answers to Interrogatories, the following:

Interrogatory 3

Question: Describe, as precisely as you are able, your last recollection of events leading up to the accident?

Answer to Interrogatory 3: I saw the car coming towards me. I was driving straight on towards the roundabout. I had not needed to veer or swerve in any way. The car must have clipped the rear portion of my scooter.

Interrogatory 5

Question: Describe your vehicle’s movements from the time when you first saw the other vehicle until the moment of the accident (or until the moment of your last recollection stating which) setting out each and every change in your vehicle’s course, speed and position on the roadway.

Answer to Interrogatory 5: Never changed anything, speed, direction and road position. I was driving my scooter slightly to the left of the centre line of the road. I was proceeding normally toward the roundabout at approximately 25-30km/h.

17It will be recalled that, in evidence, the Plaintiff stated, in contrast to the above, that he “leaned” his scooter just prior to impact.[12] This change in the Plaintiff’s version was not considered by the experts prior to Trial. They were taken to that version during cross examination however. Neither said it affected their opinion. Mr Keramidas’ position was that, if the scooter and the four-wheel-drive-type vehicle were travelling in straight parallel lines, it was not possible for the front driver side of the bumper bar of the four-wheel-drive-type vehicle to strike the right rear panel of the Vespa without there being damage of the handlebars of the Vespa. This is best shown by the diagrammatic representation at DCB 417 and 418. Both experts agreed that the damage to the handlebars (and driver’s mirror and brake handle) were caused by road impact.[13] Further, on the Plaintiff’s version, even if the handlebars passed over the four-wheel-drive-type vehicle’s bonnet, they would then impact on the base of the windscreen. There is no evidence of this on the Vespa, and Mr Hipworth did not give evidence of such an impact. Dr Hart opined that for the four-wheel-drive-type vehicle to strike only the rear right side of the Vespa, required “both vehicles [to be] angled from the centre line of the road”.[14] It is enough to say that this is not the evidence about the vehicles’ positions at the time of impact given by Mr Hipworth. I note Mr Hipworth gave evidence that he was going straight ahead, and that the four-wheel-drive-type vehicle was not on the wrong side of the road when he first saw it and “[i]t didn’t swerve suddenly”.[15] On this point, the evidence does not support the vehicles being angled at the time of impact and the opinion of Mr Keramidas must be preferred. Mr Hipworth argued that the road had a curve in it which Mr Keramidas had not accounted for. I do not accept that to be the case, given Mr Keramidas clearly noted this factor in his report.[16] At one point Mr Hipworth submitted that the four-wheel-drive-type vehicle driver was distracted – perhaps by being on their phone – resulting in the incident. I consider this speculation and put this submission aside as there is no evidence to support it from the experts. This is the first reason why the expert opinion is inconsistent with the Plaintiff’s version of events.

[12]        T99, L16-17

[13]        DCB 466-467

[14]DCB 489

[15]        T169, L11

[16]        Annexure A

(ii)    The shape of the dent

18Mr Hipworth’s case is that the dent on the right rear panel of the Vespa is consistent with it being struck by the bumper bar of a four-wheel-drive-type vehicle. To understand this point something must be said about the shape of the Vespa panel itself. The Vespa is shown at DCB 91. It can be seen that behind where driver’s seat is, and underneath it on both sides, there are convex panels. That is, the panels have a slightly rounded appearance to them. This was accepted by both experts. It was also accepted that the material these rounded panels were made from was a thin, light material. As stated, the Plaintiff’s case was that the front right bumper bar of the four-wheel-drive-type vehicle had struck the right rear convex panel, causing it to form a dent. After this, the Vespa had fallen onto its right side, slid for some way and then flipped over and fallen onto the left side, causing a further dent on the left side rear convex panel.

19At first blush, the Plaintiff’s proposition is simple to accept because the dent on the right rear panel looks, to the untrained eye, as if it could be formed by a bumper bar striking the convex panel. That is, because the bumper bar and the four-wheel-type vehicle possess weight and momentum, it impacts the light thin material on the Vespa’s right rear convex panel, causing that Vespa panel to crumple inwards, forming the hollow shape seen at DCB 392. To meet this, the Defendant’s case is that the dent seen on the right rear panel is entirely consistent with it striking a flat road surface. This was because, on the Defendant’s case, the convex shape of the right rear panel was made of thin light material which “popped” on impact with the road and crumpled inward, leading to the shape seen on the photograph. This, as a matter of principle and at a general level, was accepted to be entirely plausible by Dr Hart. Moving, then to the specifics of the Defendant’s arguments. In support of this assertion was Mr Keramidas’ evidence that the “popping” effect was seen, not only on the right rear panel, but consistently with the left side. There is no doubt that the left side of the Vespa was not struck by any vehicle, and yet the dent seen on the left rear panel is reasonably consistent with that on the right side, though it is slightly shallower. It does, however, stand as a good example of Mr Keramidas’ theory at work. He gave evidence under cross examination that he had seen this phenomenon in many of the cases he had done, though not specifically in respect of a Vespa, but certainly on motorcycles and dealing with materials of similar structural capacity. Mr Keramidas also supported his argument by reference to the presence of deep gouging at the centre of the dent. This seems to me to be an important and determinative point. This is because, on Dr Hart’s thesis, if the centre of the dent had crumpled inwards on impact with the four-wheel-drive-type vehicle, there would be few, and certainly not deep, gouge marks at the centre of the dent, as it would not have primary contact with the road when the Vespa fell onto its right side. However, if the dent had been caused simply by the Vespa falling onto the road and there being no vehicle involved then, at the time of striking the roadway, if the right rear panel was in its normal convex shape, the rounded portion would come into contact with the roadway first, and deeper gouging marks would be caused at what would become the centre of the dent. This theory is confirmed by the findings in respect of the gouge marks inside the dent and surrounding the rim. Though Dr Hart queried the depth of the gouge marks at the centre of the dent, they can be clearly seen as deep scoring marks in the centre of the dent.[17]

[17]See DSC 6696 at DCB 392

20The third matter raised which contradicts the Plaintiff’s case as to the shape of the dent is also the height of the dent. It will be recalled that the Plaintiff’s evidence was that he was struck by a four-wheel-drive-type vehicle. No further identification of the vehicle has ever been made. In cross examination, he rejected the notion it was a large four-wheel-drive-type vehicle, and he simply maintained it was a four-wheel-drive-type vehicle. In his expert evidence, Mr Keramidas noted that four-wheel-drive vehicles are generally raised higher off the ground than a normal sedan and, as such, would cause a dent higher on the right rear Vespa panel than that which actually occurred, particularly noting that the Plaintiff was seated, and therefore depressing the rear shock absorbers. In response, Dr Hart maintained that the height of the dent was consistent with three potential vehicles, which he identified in his report, being a Subaru, a Toyota and a Hyundai. However, in cross examination, Dr Hart admitted that the Subaru must be excluded because of the shape of the bumper bar.[18] The fact that Dr Hart only recanted his opinion under cross examination, and at no time after the production of his initial report, the JER, or even at the time of being sworn in and being asked if he wished to correct any matter in his report, goes against acceptance of his evidence overall. Turning to the Toyota, Mr Keramidas excluded that because of the shape of the right driver side corner. Dr Hart’s evidence was that it was plausible that the Toyota could have been involved[19] because the right rear panel of the Vespa was not flat, but convex. However, he made the point that the contact would have to have been with a hard bumper bar and he was not certain if the location at the right bottom of the Toyota was in fact hard, or was simply light plastic trim. Given this, it is hard to see why Dr Hart proffered the Toyota as a potential example of a vehicle of the right height when it might not have had the hard bumper necessary to create the dent. Turning then to the Hyundai, Dr Hart, when faced with Mr Keramidas’ opinion that the Hyundai, by reason of its shape and styling could not have caused the dent, retreated to the statement that it was “possible” and in the absence of real-world tests he was not prepared to exclude it.[20] Once again, these qualifications were not in his report, they were not the subject of comment in the JER and, further, no indication of these qualifications were given prior to cross examination starting. These are very significant amendments to Dr Hart’s opinions. In the face of them, I accept Mr Keramidas’ evidence. This is the second reason why the expert evidence tells against acceptance of Mr Hipworth’s version of events

(iii ) The paint transfer to the dent

[18]        T595, L28-30

[19]T598, L4

[20]T599, L27-28

21The Plaintiff’s case is that there was paint transfer found, of a red colour, in the centre of the dent on the right rear panel of the Vespa. In support of this, he relied on the opinion of Dr Grosvenor, the materials expert engineer. It is to be recalled that his evidence was that the paint was of a kind found in automotive applications, but not exclusively so, and was also found in other applications. As a result, testing of paint samples was not definitive that it came from a vehicle. Dr Hart said that the paint transfer was consistent with the Plaintiff’s version of events. Mr Keramidas opposed this on two bases. First, the paint locations. By this, Mr Keramidas argued the paint was found widely separated within the dent, that it was found on a lower portion of the Vespa as well, and that it was also found on the inside of the steering column. Secondly, that the directions of the paint transfer were inconsistent with a glancing blow from the bumper bar of a vehicle. I immediately put to one side the issue about the paint on the inside of the steering column. This was explained in evidence by Mr Hipworth as being likely from a box he would wedge in front of his knees when riding the Vespa. Furthermore, there was no paint testing of this sample site to match it with that found on the right rear panel.

22However, the paint directions, which are evident from the photographs, match very closely with the evidence of Mr Keramidas. Mr Keramidas also made the point that there were striations at an angle to the horizontal plane in the dent which tell against there being a transfer of paint when the bumper bar moved horizontally across the right rear panel.[21] If that were the case, then the paint marks would not have an angle downwards of about 20 degrees and would not have the downward striations. To explain this discrepancy, Dr Hart stated that because the Vespa and four-wheel-drive-type vehicle were of such different masses moving in different directions, there was buffeting, or movement, of the Vespa at the point of impact. This much may be accepted. Dr Hart described this phenomena as “buffeting”. However, when analysed, it can only be accepted that the contact was momentary. Both the car and the Vespa were moving on flat surfaces at the point of impact and the blow lasted perhaps three one hundredths of a second.[22] On Dr Hart’s case, the Vespa did not move only in a horizontal direction during impact, but also had a vertical component to the movement. Mr Keramidas made the fair concession that the impact of the car and the scooter involved a dynamic situation which may not be as clear as a horizontal force of the car pushing the scooter out of the way. However, even accepting that, he then considered that the marks of paint should have been on the horizontal plane rather than with the horizontal aspect and striations. That was a well-explained concession[23] and analysis of Dr Hart’s position. It is entirely consistent with the evidence of Mr Hipworth, who gave no evidence about the scooter being moved upward, but rather proceeding straight. In all those circumstances, and with no evidence to support the theory of buffeting, I am bound to accept Mr Keramidas’ evidence. I find that the paint-transfer pattern is inconsistent with Mr Hipworth’s version of events. This is the third reason that the Plaintiff’s version cannot be accepted.

[21]        DCB 475

[22]        T569, L4-6

[23]T581, L25 – T582, L9; T582, L17-31

(iv) The sliding distance

23It is the Plaintiff’s case that the incident occurred just after the speed humps. From there, to the position the scooter came to rest at the pedestrian refuge, is a distance of about 43 metres. Mr Keramidas made an assessment that if the Plaintiff was travelling between 20 and 30 kilometres per hour and the slide began 1 to 2 seconds after the vehicle struck the Vespa, then the slide distance was of the order of 15 to 33 metres. His opinion was that there was considerable possibility that the calculation of 15 to 33 metres slide distance was an underestimate, given the unknown friction factors involved in the sliding. For example, whether there were road artifacts or debris which would have slowed the slide. However, he concluded that the distance that the slide would have occurred on the Plaintiff’s version of events was so far out of the range of his calculation that it made the Plaintiff’s version of events highly improbable. In essence, his opinion was the scooter could not have slid as far as claimed. Rather, for the Plaintiff’s version of events to be accurate, he would have had to be travelling at a speed in excess of 40 kilometres per hour at the time of the collision. This was not the Plaintiff’s version of events. Dr Hart simply dismissed the calculation on the basis of there being too many variables to correctly calculate the slide distance. The difficulty with Dr Hart’s position is that it does not grapple with the central issue raised by Mr Keramidas, which is that the slide distance on the Plaintiff’s case is a distance of over 43 metres. Dr Hart’s opinion cannot be accepted, because he simply provided no explanation as to why the scooter could have slid such a considerable distance. He was not taken to the evidence of the Plaintiff braking, but it must work against the notion that the scooter could slide for such an extended period, and particularly a significant period after the calculation suggested. This is combined with the fact that there is a very slight up hill and the evidence given by the Plaintiff during his opening that he braked after the impact.[24] In fact, his evidence was that he tried to brake very hard to stop the Vespa. In cross examination, and later in his closing submission, Mr Hipworth attempted to say that he could not remember braking, but simply tried to. However, his evidence set out above, was clear that he remembered to try and brake very hard. The fact, allowing for the wide difference in the slide calculation of Mr Keramidas, that the purported slide distance was so far out of the range calculated, supports Mr Keramidas’ central thesis that the slide length does not accord with the Plaintiff’s recounting of the events. This is the fourth reason why the expert evidence does not support the Plaintiff’s version of events.

[24]T99, L19-20

The credit of Mr Hipworth

24Turning to the second overall reason why Mr Hipworth’s case cannot be accepted. This comes broadly under the heading of the Plaintiff’s credit. I find, having considered all the evidence, that Mr Hipworth gave evidence which was inconsistent, implausible, unhelpful, contradictory and at times obviously designed to conceal the truth of matters. In the end, I am not able to accept Mr Hipworth’s version of events on the balance of probabilities. The reasons why I have come to such findings are set out below in sequential order.

25Firsty, Mr Hipworth’s version of events is inconsistent with the most contemporaneous recording from the Alfred Hospital.[25] It will be recalled Mr Hipworth stated that immediately after the incident he had made his way to the Alfred Hospital where he had made his first reporting of the incident. This reporting, contained in the Alfred Hospital notes, recorded that the incident had occurred at a speed of about 10 kilometres per hour. In evidence and in Answers to Interrogatories, Mr Hipworth estimated his speed to be 20 to 30 kilometres per hour. Nothing much turns on this however, given the recording of the Alfred Hospital also notes “low speed”, and it may well be thought that the relevant medical officer or nurse simply took this to be 10 kilometres per hour. Certainly Mr Hipworth denied stating that it was 10 kilometres per hour. What is more important however are some of the medical observations taken at the time. For example, hospital notes record “nil headache” and there is no recording of vomiting. Yet Mr Hipworth, in evidence, clearly said that he was vomiting and had a “belting” headache at the time of attendance. There are two effects of this. It shows that Mr Hipworth had very good recall of matters when it suited him. However, it also showed inconsistency between his recall and that of the notes. When faced with the medical observation recorded in the notes of “nil headache”, for example, Mr Hipworth was adamant that this was simply incorrect. This is a highly specific memory and contradicts a written note of the hospital. The notes are also significant because they omit any mention of a red four-wheel-drive-type vehicle or, in fact, any other vehicle being involved in the incident at all. Mr Hipworth was unable to explain this absence from the notes. Though, to be fair, this would have been of less importance to the history taker at the hospital than the medical observations. If this were an isolated incident, it would be entirely plausible to prefer Mr Hipworth’s version of events. By reason of the other matters set out below however, there is a compounding effect, where Mr Hipworth’s version of the incident itself cannot be believed.

[25]PCB 20-23; See Mr Hipworth’s comments at T145, L13 – T148, L20

26Secondly, Mr Hipworth, in evidence, stated that after he was taken home by his wife, he was in an enormous amount of pain and simply rested. I interpolate to note that his wife was the second person who he had significant interaction with after the incident. However, her evidence does not state that after the incident he implicated a second vehicle, the four-wheel-drive-type vehicle, in the incident at all. Her evidence is simply that Mr Hipworth had been “knocked off his Vespa”.[26] Her evidence did not descend to implicating a four-wheel-drive-type vehicle or that this vehicle had been across the white line at the time of impact.

[26]T477, L30-31

27Thirdly, Mr Hipworth, in evidence, stated that after the incident he was in tremendous pain and was unable to function properly. However, he made no mention of the fact that four days after the incident he flew to Bali to visit the rental property he owns there. Photographs from his social media postings were tendered. They did not show him to be suffering as he deposed around this time. However, I do recognise that the social media posts are only one moment in time and are not truly representative of an individual’s total life circumstance. In fact, the evidence from Ms Di Natale was that Mr Hipworth was in significant pain during this period. It is also likely that he was struggling with multiple breaks in the right ankle and also in the left wrist during this period. It is undoubted, if he was, these were producing significant pain, and so the social media posts are of limited benefit in understanding his true physical and pain situation at this time.

28After his return to Australia, he continued to be in pain and suffering with reduced mobility, such that he was required to use crutches. On 19 May 2015, he went to see his treating doctor, Dr Lewis, who ordered scans of both the left wrist and right ankle. He also encouraged him to see police to make a formal report and also to make a TAC claim. It is to be noted that the scans showed the breaks in the right ankle and the left wrist. However, the police report made[27] shows a number of inconsistencies with the version of events given in his Answers to Interrogatories and in his evidence. First, the police report records that the driver of the other vehicle (being the four-wheel-drive-type vehicle) had “swerved into the lane where the victim was travelling”,[28] it can be seen that the recording of the other vehicle “swerving” is inconsistent with the evidence given in court, which suggested that the four-wheel-drive was simply positioned and moving in a straight line along the centre of the road. There is also the reference to an “unknown reason” for the four-wheel-drive-type vehicle coming onto the wrong side yet, in evidence, the reason given was that the four-wheel-drive driver was aiming for the midpoint of the speed humps. Mr Hipworth denied that he had given these instructions to the police officer for the purposes of the report.[29] However, it is significant that the evidence was that the police officer was sitting across from Mr Hipworth and writing what he told her. This would indicate some contemporaneous recording of instructions that he was giving. However, even taking into account the fact that the police officer might well have taken the history incorrectly, with the other matters set out above and which I will come to, this inconsistency in the recording of a reasonably contemporaneous note of Mr Hipworth’s ultimate version of events in his Answers to Interrogatories and in evidence, stands as a strong factor to support my finding as to the lack of veracity in Mr Hipworth’s account.

[27]PCB 14-16

[28]        PCB 14

[29]T154, L25 – T155, L2

29Fourthly, the TAC claim form,[30] also has a different version of events, where the four-wheel-drive vehicle “came out of the roundabout”.[31] This contrasts with the evidence at Trial, which was that the incident occurred at about the speed humps.

[30]        PCB 17-19

[31]        PCB 17

30Fifthly, the police report diagram has the incident occurring at the pedestrian island on the Lansell Road side of the roundabout.[32] It is not at the speed humps as evidence was given about.

[32]        PCB 16

31Sixthly, in histories to various doctors, the incident site is given at about the roundabout in contrast to the evidence at Trial, which was that the incident was at or about the speed humps. For example, in the reporting of Professor Stephen Davis,[33] Dr Timothy Entwisle where it was recorded as being “part way through [the] turn” [34] and also Dr Clayton Thomas.[35]

[33]PCB 115

[34]DCB 23

[35]PCB 146

32Seventhly, the evidence about leaning the Vespa only arose during the course of Trial and as I have set out above it was never a feature of the Plaintiff’s case until he gave evidence. This late evidence was significant because it sought to explain away the difficulties posed by Mr Keramidas’ evidence about the angle of impact being inconsistent with Mr Hipworth’s version of events. I consider it to be significantly inconsistent with all evidence given to that point in time.

33Eighthly, there was significant difference about Mr Hipworth’s claims to be incapacitated with that shown by posting on social media. I have touched on the limitations of social media postings above. In this case however, there is consistent posting over numerous years at numerous holiday sites which tends to support an overall proposition that the Plaintiff’s physical and mental conditions are not as serious as he opened as being “six years of hell”. Rather, they tend to show someone who has at times been able to travel overseas and engage in a range of pastimes which give him pleasure. For example, it appears that he has travelled to Bali on at least four occasions since the incident,[36] and he has travelled to at France, and also once to Europe and once to the United States for extended holidays with friends. Some of these friends were called to give evidence and described how Mr Hipworth struggled on those holidays. That evidence can be accepted. The point to be made however is that they did not give evidence that he was incapacitated for all of these holidays, but certainly for some days out of the many days he was on holidays, he did struggle. That much can be accepted, but it leads to an inconsistency with his presentation to this Court of being entirely incapacitated day after day after day with no remit.

[36]        See social media posts show the Plaintiff in Bail in April 2015, October 2015, August 2018 and

December  2018/January 2019 at Exhibit D20

34Extensive film was also shown of Mr Hipworth, particularly in 2019. That film was shown for five hours and comprised the entirety of the video footage taken of Mr Hipworth. I consider a fair summation of the film is that it shows Mr Hipworth engaging in reasonably normal behaviour. He is seen driving around, particularly attending at the Burnt Lemon Café, a business run by Ms Di Natale and her associate. In the footage, he converses with numerous people in a quite normal manner and also seems to assist. That is, he clears tables and chairs away and assists with minor repair works at the front. Mr Hipworth’s evidence that he was required to do this because the business was struggling due to a co-partner embezzling funds and also Ms Di Natale having to care for her sick sister. As a result, it fell to Mr Hipworth to do work at the café, as he was a trusted person. This much can be accepted. It is also to be noted that Instagram posts for the café list him as the primary contact during this time. It all paints a picture of a man who was able to complete business tasks and work at a café reasonably normally. Once again, this stands in direct contrast to the evidence he gave in court as to his physical and mental condition, and also that contained in the majority of medical material. Mr Hipworth’s response to this argument by the Defendant was that the film was “doctored”. I do not understand the import of this submission and I dismiss it. I reiterate, I find the film to be an accurate depiction of Mr Hipworth’s function during the periods he is shown on the film.

35Ninthly, I also accept it shows he has a capacity for work. That work may only be on a part time basis, but even this is in contrast to the evidence which Mr Hipworth gave, which was that he is totally incapacitated for work at present. I find this inconsistency telling. It strengthens my view that Mr Hipworth’s evidence is unreliable. However, he did, in opening, suggest to the Court that he might regain some capacity in the future, and that was the basis for claiming a Farlow.

36Tenthly, and perhaps most importantly, the evidence Mr Hipworth gave in respect of his taxation returns leads me to believe he was not being helpful or entirely truthful in much of his evidence. From 2016 onwards, both businesses he runs, being Hippo and RERE, have entries for claims of wages and various deductions related to business operations being for motor vehicle expenses, office expenses and wages. It was put to Mr Hipworth that if he was unable to work from 2015 onwards then there are no business expenses which can properly be claimed. Mr Hipworth was given a certificate pursuant to s 128 of the Evidence Act 2008 (Vic) in respect of this evidence. It was suggested to him, for each of the tax returns for each of the companies, that he was either working and properly claiming the deductions or he was falsifying the return to the Australian Taxation Office. Mr Hipworth essentially declined to answer these questions. He answered repeatedly that he was not working and, in direct contradiction, claimed that the expenses were properly incurred and claimed on the return. When asked how both things could be true and asked to give an explanation, he said that he could not explain it. I found this answer to be directly contradictory and internally inconsistent. Mr Hipworth then called in aid the evidence of Mr Greg Valles, his accountant. He gave evidence that he only submitted returns which were proper and accurate. This much can be accepted, however any tax agent only makes claims which they are instructed to make and the return is declared by the taxpayer to be a true and accurate record. I find that it is most likely the returns are a true and accurate reflection of the Plaintiff’s situation, which is that he was performing some work from 2016 onwards and therefore claiming the necessary deductions. This finding is supported by the evidence contained in the video surveillance which I have set out above. However, it stands in direct contrast to the evidence which he has given in court, which I do not accept, that he has been unable to work at all since the incident.

37For the above reasons, I find Mr Hipworth’s evidence lacks credit and I do not accept that the incident occurred in the way he described.

38For these reasons, it is not necessary to go further and consider the issue of damages.

39In summation, I find for the Defendant on the basis that the expert evidence does not support Mr Hipworth’s version of events occurring in the way he described. I further find that Mr Hipworth’s evidence as to how the incident occurred cannot be accepted because I consider his evidence is inconsistent, unreliable and lacks veracity.

40I will find for the Defendant and dismiss Mr Hipworth’s claim.

Annexure A

Extracted from Defendant’s Court Book 463