Hobson v Rogers

[2018] NSWDC 414

District Court

New South Wales

Medium Neutral Citation:	Hobson v Rogers [2018] NSWDC 414
Hearing dates:	30 October 2018 and 1 November 2018
Date of orders:	20 December 2018
Decision date:	20 December 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Plaintiff pay defendant’s costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	PERSONAL INJURY – plaintiff injured in motorcycle accident – liability – quantum – whether the explanation for delay in commencing proceedings was full and satisfactory conformably with s 109 Motor Accidents Compensation Act 1999 (NSW) – no issue of principle
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 109 and 110
Cases Cited:	Container Terminals Australia v Huseyin [2008] NSWCA 320 Hill v Richards [2011] NSWCA 291 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mason v Demasi [2009] NSWCA 227 Mastronardi v State of New South Wales [2009] NSWCA 270 Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 Walker v Howard [2009] NSWCA 408
Category:	Principal judgment
Parties:	Plaintiff: George Brian Hobson Defendant: Glenn Rogers
Representation:	Counsel: Plaintiff: Mr J Reimer Defendant: Mr A Black SC   Solicitors: Plaintiff: Maxwell Berghouse & Ives Defendant: Holman Webb Lawyers
File Number(s):	2016/373484
Publication restriction:	None

Judgment

The plaintiff’s claim for damages for personal injury

1. The plaintiff brings proceedings for damages arising out of the circumstances in which he suffered injury when he fell from his motorcycle onto the hard shoulder of the road while riding along Henry Lawson Drive, Mudgee in the State of New South Wales on 12 October 2008.

2. The accident is described in the statement of claim as follows:

“1. On 12 October 2008 at about 11.30am, the Plaintiff was riding his Triumph motorcycle, registered No. WUC70 in a generally southerly direction along Henry Lawson Drive, Mudgee in the State of New South Wales.

2. As the Plaintiff proceeded, the Plaintiff’s motorcycle approached a Honda motorcycle, register No. GROO, ridden by the Defendant which had slowed to almost a stop or had stopped.

3. Whilst the Plaintiff was overtaking the Defendant’s motorcycle, the Defendant accelerated his motorcycle rapidly which required the plaintiff to take sudden action to avoid a collision.

4. In so doing, the plaintiff lost control of his motorcycle, and crashed onto the hard shoulder of the road.”

3. The particulars of negligence pleaded in the Amended Statement of Claim are as follows:

1. Failing to allow the plaintiff to overtake in a safe manner;

2. Accelerating rapidly and into the path of the plaintiff’s motorcycle so as to oblige the plaintiff to take emergency action;

3. Failing to take any adequate precautions for the plaintiff’s safety;

4. Putting the plaintiff in a position of peril.

4. The defences raised in the pleadings are:

1. The defendant denies that the plaintiff had a valid cause of action in that the plaintiff first made a claim against the Nominal Defendant which was settled by a deed dated 2 December 2009. In the event that the plaintiff asserts the deed has been validly set aside (which was not referred to in the statement of claim) this was disputed. (I note, however, that this argument was abandoned at the hearing).

2. The defendant denies the plaintiff is entitled to commence these proceedings, as he is in breach of s 109 Motor Accidents Compensation Act 1999 (NSW) and does not have a full and satisfactory explanation for delay.

3. The defendant denies that he owed the plaintiff any duty of care or that he was negligent as pleaded and particularised.

The issues in the case

5. The parties agreed that the following issues arise:

1. Should the plaintiff be given leave to proceed with this claim?

2. Was the defendant negligent in any way?

3. Was the plaintiff guilty of contributory negligence?

4. What is the appropriate amount for damages for non-economic loss?

5. What is the appropriate amount for damages for past and future economic loss?

6. What is the appropriate amount for damages for domestic assistance?

7. What is the appropriate amount for damages for past and future medical expenses?

6. The particulars of the plaintiff’s injuries are set out in the section of this judgment in relation to damages.

The approach to take to the evidence in these proceedings

7. There are two unusual features to this claim:

1. The accident occurred on 13 November 2008, a decade ago, in circumstances where the plaintiff entered into a deed of release with the nominal defendant less than a year later, on 2 September 2009.

2. Although applications for an extension of time are generally heard separately to the hearing, the application in the present case was listed for hearing at the same time. The defendant submitted that I should consider the question of extension of time first but, in view of the fact that liability was also before the court at the same time, I have not done so. The reason for this will become apparent from the contemporaneous records of the accident tendered by the parties.

Contemporaneous records relating to the accident

8. The plaintiff made contemporaneous statements concerning the accident to:

1. The hospital and hospital staff;

2. The defendant;

3. The police; and

4. Insurers and a solicitor.

9. The plaintiff’s evidence in the witness box contradicts many of his own statements in these documents.

The plaintiff’s statements to the hospital staff

10. When the plaintiff was admitted to Orange Base Hospital, he described the accident as follows:

“MBA at Mudgee – travelling home midday at high speed – 90 kph hit gravel + crashed Triumph trying to avoid pole [arrow] hit the deck. Denies LOC.”

(12 October 2008; Dr Cunningham’s notes).

11. Other notes, in other handwriting, say “front wheel slid out on gravel, 90 kph.”

12. The description given by the plaintiff of a motor vehicle accident at high speed (90km/hr) where he was “trying to avoid pole” was the subject of further enquiry by a Ms Charnock on 28 October 2008. In the course of a review of the plaintiff’s file, she interviewed him and noted:

“Patient represents as very articulate and in good spirits. Patient described accident and from description does not meet criteria for financial support from RTA for medical treat [sic] due to accident. IPTAAS form placed in file for completion by team and to be transferred to Mudgee with patient.”

13. The Court of Appeal has repeatedly warned trial judges that descriptions as to the circumstances of accidents, injuries and the like, written by busy medical professionals in the course of urgent treatment must be treated with caution: Hill v Richards [2011] NSWCA 291 at [23]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]. That is in part because their focus is on treatment of the plaintiff rather than the cause of the accident.

14. However, there are exceptions to that rule, particularly where the specific purpose of the note taking relates to the circumstances of the accident for some patient-related purpose.

15. In the present case, the notes prepared by the social worker demonstrate that she was asking him about how the accident happened in order to determine whether he had some form of compensation entitlement, presumably because this could be relevant to some aspect of liability for payment of expenses incurred in the hospital system. In other words, the social worker was directing her enquiries in the course of the accident with a degree of precision and was carefully noting down the plaintiff’s answers. As such, the observations that she made and the information she wrote down should not be treated with the caution that may be exercised where there are other factors, such as urgent treatment or medical observations.

The plaintiff’s statement to the defendant

16. On or about 7 November 2008, the plaintiff telephoned the defendant. The following conversation took place:

“Q.  On 8 or 9 November you rang Glenn Rogers, how did that come to happen?

A.  When I was transferred back from Orange to Mudgee Hospital on 5 November my daughter and son‑in‑law came in to see me and my son‑in‑law said to me that his friend, Jay Rogers, his father had come across an accident on Henry Lawson Drive involving a red motorcycle, so he assumed that it was that, that my accident, yep.

Q.  What happened as a result of that conversation?

A.  Well, I rang Glenn Rogers and he said that he was there at the accident scene‑‑

Q.  Doing the best, you can please tell her Honour the words spoken by yourself and Mr Rogers during that conversation?

A.  I rang Glenn Rogers and asked him if he was at the accident scene, and he said, "Yes."

HER HONOUR: Pretend that we're going back in time, and when you rung up you said, "I believe you were the one who was there," see "I," can you do it that way.

WITNESS: I said, "You were at the accident scene?"  He said, "Yes."

REIMER

Q.  And did anybody say anything else?

A.  He said he was not involved in that accident‑‑

HER HONOUR: He said, "I was not involved."

WITNESS: He did, yes.

HER HONOUR: No, remember what I said, this is how you need to say it.  He said, "I was not involved," try and say his actual words.

WITNESS: That's right, "I was not involved."

HER HONOUR: What was he not involved in, say the whole sentence.

WITNESS: He said he was not involved in the accident, but was present there.

REIMER

Q.  Was anything else said?

A.  Assuming that he'd just come across the scene I thanked him for helping out.” (T 28-29)

17. The plaintiff was cross-examined about this telephone conversation:

“Q.  When you were told about Mr Rogers being there at the time you must have understood that he was the motorcyclist who you had been following, because there was only one such motorcyclist and he was the motorcyclist that stopped?

A.  When I phoned Glenn Rogers on the 8th or 9 November, which was just a few days after I got to know who it was I didn't know he was a motorcycle rider, I just thought that he was somebody that had appeared on the scene to help me.  I didn't connect the two together.

Q.  Did you connect the two together at any time until 14 November when you were discharged from hospital?

A.  No, I didn't.” (T 42)

18. The defendant was asked about this conversation in examination in chief:

“Q.  Were you contacted by Mr Hobson a few weeks after that?

A.  I was.

Q.  Was that by telephone?

A.  Telephone, yes.

Q.  And what happened in the course of that phone conversation?

A.  From what I remember he telling me about his condition and that his insurance company would be in touch with me and asked me I'd say it was my fault.

Q.  And what did you say to that?

A.  I said, “No.”” (T 76)

19. In cross-examination, this account was not challenged.

20. The police also made inquiries at the time.

The parties’ statements to the police

21. The plaintiff was released from hospital on 14 November 2008. He provided a signed statement to Senior Constable Owen at his home that evening in which he described the accident as occurring as follows:

“Friday 14th November 2008 6pm-6am

Mudgee LAC

Friday 14th November 2008 7:30pm

Re: Statement for single MVA

Driver 1

George Brain HOBSON

[Address]

Mudgee

Vehicle 1

Triumph Sprint

99 Model

Reg WUC70

Damage

Smashed/written off

Q1. Were you the driver of vehicle WUC70, on Henry Lawson Drive on 12/10/08 at 11.30am.

A. Yes

Q. Tell me what happened.

A. I had travelled to Gulgong to a shop I own, I did a few thing and, decided to come home. I always go the back way. I was travelling down Henry Lawson Drive as I approached a causeway which I know had water in, I slowed down, at this point I saw another motorbike which I did not recognise. I followed behind this bike for a few minutes. I was approaching the Kaolin Rd turn off behind the other bike. The other bike slowed down just before the turn off at Kaolin Rd. I decided to overtake the other bike which had slowed down, at this point I overtook the other bike on the outside. I entered the gravel or the shoulder of Henry Lawson Drive just past the Kaolin Rd turn off. Once I was on the gravel I shut the power of [sic] and tried to avoid braking and steering without just trying to edge the bike back on the road. I approached a flexible post and tried to run over it, I went to the right of it. I noticed a driveway to my right, I tried to avoid it but after the flexible post I don’t remember anything.

Q. I am going to ask you some questions about this matter, you do not have to do or say anything if you don’t want to. Do you understand?

A. Yeh.

Q. I will record what you do or say, and I could use this recording in court. Do you understand that?

A. Yep.

Q. How fast were you going when you approached the other motorcycle, coming up to the Kaolin Rd turn off.

A. About 95-100km.

Q. Did you consider slowing down when you approached the other motorcycle and bend.

A. Yes, I considered slowing down as I was catching up to him.

Q. Which side did you overtake the other motorcycle on as you approached it?

A. The right hand side and accelerated back to about 90km at this point.

Q. How close to bend were you at this point?

A. Almost on Kaolin Rd turn off.

Q. Is there anything else you wish to tell me about this matter?

A. No. I can’t think of anything else. Except for the other motorcycle, I may know the identity of the other motorcycle, I rang to thank him.

GB HOBSON 8.00pm. 14/11/2008

[Signature]

[Signature]

PAUL OWEN

Pro/Con

14/11/2008

8.00pm”

22. He also stated that “I may know the identity of the other motor cicle [sic], I rang to thank him”. This other person is now acknowledged to have been the defendant, which contradicts the plaintiff’s more recent claim that a third motor cycle was involved.

23. The defendant not only gave evidence about this conversation, but also provided a statement to the police, which is set out in Exhibit 2 as follows:

“1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.

2. I am [illegible] years of age.

3. About 11.30am on the 12th of October 2008, I was travelling from Gulgong to Cooks Gap where I live. I was riding a 1996, black, Honda CBR motorbike registration GR00. Just outside of Gulgong I come up behind another motorcycle which was red in colour. I overtook the motorcycle which was travelling at approximately 80klmh. I proceeded on my way to Cooks Gap. I could see the red motorcycle in my mirror it was some distance behind me. I do not know the rider of the motorcycle and have not seen this motorcycle before. I do not travel this section of road very often.

4. I came to a causeway which had water in it so I slowed right down to approximately 20-30 klmh. I then came to another causeway which did not have any water in it and I slowed down again. I cannot remember if the red motorcycle was behind me at this stage or how close it was.

5. I was then approaching a bend in the road at the Kaolin Road turn off, I slowed down to take the corner. I slowed down because I was unsure of the corner as I do not travel the section of road often. I can’t remember how fast I was travelling at the time. I caught a glimpse of the red motorcycle on my right hand side slightly behind me, at this point I thought he was overtaking me as we were going through the bend. By this stage I had already set up to take the bend and committed to taking the corner. I travelled through the corner and as I was accelerating out I checked my right hand mirror to see where the red motorcycle was. I noticed that the red motorcycle had left the road on the right hand side, I think he was in the gravel. I continued to watch in my right hand mirror and I noticed the bike go over onto its side in the gravel. I then pulled over and turned around and went back to see if the rider was ok. I stopped and spoke to the rider, at this point I still had my helmet on.

6. The rider said, “I think I broke my leg”. The rider asked me if I could take his helmet off and I advised him to leave it on. I asked him if he had a mobile phone which he did not. I did not have a mobile phone either so we could not contact help. That’s when a passing motorist stopped and gave me their mobile phone and I dialled 000. Shortly later some more cars pulled up and rendered assistance. I noticed a young male person walk over and turn the motorcycle off as it was still going. One of the people that stopped stated that he new [sic] first aid and took over treating the injured rider. I was still on the phone to the 000 operator at this point as the lady I was speaking to was giving me instructions for the care of the rider and I was just relaying this information to the person caring for the rider.

7. About ten minutes later an ambulance turned up to help. A short time later I left the scene as there was not much else I could do to help. I then rang the Gulgong Hospital later that night to see if the rider was alright, they would not give me any information as I was not a family member.

8. Several months after the incident I was contacted by George HOBSON who enquired about insurance. He informed me that his insurance company would be contacting me. A short time later George HOBSON’s insurance company did contact me and enquired about the accident, they established that I was not involved in the accident and they had no further contact with me.

9. I have not heard any more from George HOBSON or any insurance company since the accident. At any stage after the accident I did not think to contact police as I had no involvement in the accident.”

The plaintiff’s statements to insurers and to his solicitor

24. The plaintiff submitted a claim form to AAMI on or about 20 January 2009. He put a line through the section for details of witnesses writing the words “no actual witnesses” and described the accident as follows:

“Traveling south from Gulgong to Mudgee on my motorcycle at about 95-100 kph. I came up behind another motorcycle that had passed me some 2 kilometres back. This motorcycle had slowed down quite a lot and as I was deciding what to do, this motorcycle’s rear brake light came on. As I know this road (Henry Lawson Drive) extremely well and had excellent vision of the road ahead (even though the road bends to the left) I decided to accelerate past this motorcycle on his right hand side. As I had previously slowed as I came up behind this m/cycle I accelerated to 80-90 kph (I didn’t check the actual speed) – as I did so, this unidentified motorcycle’s rider accelerated very quickly and got ahead of me. This manoever [sic] startled me and I lost concentration as I did not expect this to happen.

As a result of this motorcycle’s action, when I looked back at the road I was on the hard shoulder on the wrong side of the road.

I have ridden a motorcycle around Australia covering thousands of kilometres on gravel roads, so this situation did not unduly bother me. I shut off the accelerator straight away to engine brake without using the bike’s brakes, which would induce a skid. Instead I let the bike slow itself with the intention of gradually getting back onto the bitumen. However, the hard shoulder gradually steepened towards the water-filled ditch (on my right) and this scope pulled the bike towards the ditch and, with the second bend coming up – to keep going ahead would put the bike and myself into this ditch. By this time I had slowed down to maybe 50 or 60 kph and, even though I don’t remember, I must have decided to lay the bike down – I can’t remember the exact detail of my fall but I landed on the hard shoulder, and the bike landed in the ditch.”

25. He described the other vehicle as “not known”.

26. On 17 May 2010, the plaintiff’s solicitors wrote to the claims manager at AAMI as follows:

“We are the solicitors for George Brain Hobson who was injured in a motorcycle accident outside Mudgee on the 12 October 2008.

At the time of the accident, our client could not find the owner of the motorcycle considered at fault and our client’s claim proceeded against your insurance company as agent for the nominal defendant.

At that stage our client acted for himself and eventually he settled his claim with you for $10,000 in respect of the injury to his foot.

We understand that the normal settlement documents were entered into and our client received the settlement sum.

After the settlement, we were instructed in the matter to advise our client as to the adequacy of the compensation he received.

It was our view that the amount paid was totally inadequate and we retained a medico-legal doctor for a medical report.

We enclose herewith a copy of Dr. Peter Conrad’s dated 4 May 2010, which outlines the extent of our client’s injury.

As a result of further information given to our client, our client has now learnt from the investigating police officer from Mudgee Police Station that the relevant third party insurer of the person considered at fault a Mr. Glen [sic] Rogers is the NRMA.

Our client has now prepared a Claim Form for lodgement on the NRMA and in the circumstances, our client would ask that you indicate your attitude to the putting aside of the settlement agreement and for you to wait for the return of the settlement monies when our client’s action with the NRMA is resolved.”

27. The solicitors subsequently lodged a claim form in which the accident was described in paragraph 16 as follows:

“While travelling south along Henry Lawson Drive I came up behind another MC. This M/C had slowed down. While overtaking this M/C it accelerated rapidly startling me causing me to lose control of my bike. I consider the other driver at fault.”

28. On 12 October 2008 a request for a full and satisfactory explanation for the delay pursuant to s 73 was sought.

29. On 3 August 2010, the solicitors for the plaintiff wrote as follows:

“Further to the above matter, we enclose herewith answers which our client has made to the questions requested by Barringtons Group the private investigator retained by your company in respect of this accident.

You will see from our clients reply to question 18, that our client believes that the other driver was trying to drag race him.

There is now evidence that in fact the other driver was the young son of this Mr. Glen Rogers and it is more consistent that a young motor cyclist would engage in such behaviour than and [sic] more mature person.

We now have located witnesses who arrived at the scene of the accident after the event and confirmation has now been given that the other rider was a person with a fresh face in his 20’s.

Our client believes this to be Mr. Roger’s son, Jay.

We understand that your private investigator has now obtained statements from these witnesses and we invite you to let us have a copy of those statements to obviate the necessity for us to further interview them.

The position now arises that Mr. Rogers’s [sic] senior has deceived everyone that he was the rider and indeed the deception goes to the extent of Mr. Rogers’s [sic] senior giving false information to the police in order to protect his son.

If after the investigation of this matter you come to the view that our clients [sic] version is correct, we see no necessity at all for him to go through the rigmarole of explaining the delay in this case and we invite you to waive the requirement that a Statutory Declaration be sworn by him and given to you to this end.”

30. On 12 October 2008, the Senior Injury Claims Consultant had made a request for an explanation in accordance with s 73 in the form of a statutory declaration. That statutory declaration was not provided until 10 October 2011. The explanation given in that statutory declaration was as follows:

“3. On 12 October 2008, I was injured in a motorcycle accident along Henry Lawson Drive near Kaolin Road., Homerule, near Gulgong. My description of the accident is that while travelling south along Henry Lawson Drive, I came up behind another motorcycle. This motorcycle had slowed down. While overtaking this motorcycle it accelerated rapidly, startling me causing me to lose control of my bike.

…

7. In my statement to police which I have now subsequently read, I supposedly made comment that I knew the ride of the vehicle at fault and rang to thank him. This part of the statement is incorrect. I rang no-one within the time of leaving hospital, approx. 5.00 p.m. and the police interview at 7.30 p.m. at my home.

The police statement says:-

“I may know the identity of the other motorcycle, I rang to thank him.”

This does not make sense. If I knew the identity of the other motorcycle (rider) why did I not tell the police his name? I would have to have known his name to telephone him.

8. At that stage I did not know the identity of the other motorcycle rider. I did telephone Glen Rogers at a later date (not known) when I found out his identity and did thank him for stopping to assist me, at which time he said that the accident had been a fifty-fifty blame. This I did not agree with, but I had already signed and had witnessed my first Claim Form to the NRMA on 13 November 2008.

9. On 4 March 2009, I contacted Maria Alder at AAMI (nominal defendant) and told her the identity of the other rider. A few weeks later I rang her again and she told me she had not, as yet, contacted Glen Rogers.”

31. At paragraphs 14-20, the plaintiff explains when he first became aware that he could lodge a claim for his injuries as follows:

“14. I first became aware that I could lodge a claim for my injuries through my daughter-in-law. At first, and whilst I was in Orange Base Hospital, my wife Marie made enquiries at the Orange branch of the NRMA (my green slip provider) and in short was told there was nothing to claim and to go away. Whilst I was still in Orange Base Hospital, Marie made a similar enquiry at the Mudgee branch of the NRMA. Again, she was told the same thing – to go away and not bother them. It was early in November that my daughter-in-law sent me a Claim Form to complete, which I did and was witnessed by Russell John Sear JP on Thursday, 13 November, the day before I was released from Mudgee District Hospital.

15. This Motor Accident Personal Injury Form therefore was completed and witnessed before I had left hospital or visited the accident scene. After I had visited the accident scene I realized that some of the information I had given to the NRMA and to the police, could not be correct. At that stage I was unaware of the identity of the other rider and I proceeded with my claim on the basis of an unidentified rider and the Nominal Defendant took the matter over with AAMI being the insurer agent for the Nominal Defendant.

16. On 4 March 2009, I notified Maria Alder at AAMI the identity of the other rider at fault (by telephone approx 12.30 p.m.). AAMI took this information no further and the claim proceeded as for Nominal Defendant.

I settled my case for $9,000 (cheque dated 14/09/09 - $10,000 less $1,000 to Medicare).

17. After I settled the case for $9,058.25 ($9,000 + Medicare rebate from $1,000.00 paid to them - $58.25). I was generally unhappy about the amount of compensation I received given my serious injuries and given that I will not be able to return to my work at the pre-accident level. I am still in moderate, and sometimes severe pain, I still have to sit often, with my leg elevated. I cannot bend the leg to more than 12%, cannot squat down and get tired very easily walking short distances, even with one or two sticks. I thought that that was the end of my claim.

18. In December 2009, I was referred to Mr. Peter Ives Solicitor by a long time friend of mine.

19. My friend had mentioned to Mr. Ives my case and I was invited by him to discuss the case with him. I told Mr. Ives that I had been given the identity of the person at fault, Mr. Glen Rogers of [address] by my son-in-law sometime shortly before I passed this information on to Maria Alder at AAMI on 4 March 2009.

I was most surprised that AAMI took no further interest in Mr. Glen Rogers, but, as my Greenslip was provided by NRMA and apparently Mr. Rogers Gleenslip was also provided by NRMA, I thought this must be normal.

20. In December 2009, my present solicitor, Mr. Ives wrote a letter to Mudgee Police Station and requesting that they interview Mr. Glen Rogers. I annex hereto and mark with the letter “A” a copy of the letter my solicitor sent to the Mudgee Police Station.”

32. Enquiries were made of the police by the plaintiff’s solicitors. On 11 January 2010 the NSW Police Force replied as follows:

“Initial inquiries reveal that police issued Mr Hobson with an infringement for negligent driving. Mr Hobson’s accident was found to be a result of his own actions with no other persons or vehicles involved or found to have caused this accident.”

33. A follow up letter was sent on 7 April 2010:

“As stated, Police have reviewed this matter and continue to support the initial finding as forwarded to your office on the 11.1.2010 that is Mr Hobson while attempting to overtake another rider, on a sweeping bend, containing an unbroken centre line that started 150 meters prior to the commencement of the corner, has lost control of his bike. Mr Hobson was then rendered assistance by the other rider and motorists.

Mr Hobson was interviewed on the 14 November 2008 in relation to this accident. In his statement, he does not indicate that he believed the accident to be caused by the other rider. All indications from this statement are that Mr Hobson overtook the other rider and lost control of his bike in gravel. There was no indication from Mr Hobson of a collision or other mitigation factor to infer responsibility for the accident to anything other than loss of control of his motorcycle. There was insufficient indication of second party involvement in this motor vehicle accident from the accident site to the interview of Mr Hobson conducted in November 2008. Mr Hobson was subsequently issued with a penalty.

Constable Paul Owen, investigating officer, made contact with the Mr Glen Rogers following receipt of his details from your correspondence. Mr Rogers was the other motorbike rider and the version of events he has supplied is in accord with the statement that Mr Hobson provided on the 20.11.2008. Additionally, Mr Rogers stated that Mr Hobson’s insurance company had contacted him but had declined to take further action and discontinued contact.”

34. A copy of the police notebook was sought and obtained under freedom of information legislation.

35. The solicitors for the defendant wrote to the solicitors for the plaintiff on 7 February 2012 as follows:

“We note your client was allegedly injured in a motor bike accident along Henry Lawson Drive near Mudgee on 12 October 2008.

As we understand it your client who was unable to identify the motor bike he believed was at fault lodged a claim with the Nominal Defendant. The claim was allocated to AAMI and was settled.

We understand the settlement remains on foot.

He now seeks to rely on a second claim identifying an NRMA insured as the motor bike at fault.

Your client was not and is not entitled to lodge a second claim form and that which was lodged is invalid. We have so advised NRMA and recommend they simply close their file.

Having said that, we appreciate that you may seek to have the settlement against AAMI set aside.

We do not know upon what grounds you believe you are entitled to have the agreement set aside. Such applications are notoriously difficult to succeed upon.

In any event based on the information to hand, particularly your client’s claim form, we cannot see any liability in anyone other than your client. Accordingly in our respectful view it would be a frivolous exercise for your client to attempt to pursue the NRMA noting that in any event he is now statute barred.

We would be pleased if you could acknowledge receipt of this correspondence and confirm that it is now in order for the NRMA to close the file.”

The plaintiff sets aside his agreement with AAMI

36. The circumstances in which the plaintiff brings this claim are in contradiction with any liability of the Nominal Defendant for the accident. An agreement was entered into on 10 March 2016 between the plaintiff and AAMI which purports to set aside the agreement in exchange for the reimbursement of the $10,000 paid. The plaintiff also paid the Nominal Defendant’s costs, agreed at $2,000 plus GST.

37. It is relevant to note that, even after this agreement was set aside, the plaintiff was slow to commence these proceedings. On 15 September 2016, a notice was sent requiring the plaintiff to commence proceedings within three months pursuant to s 110 Motor Accidents Compensation Act 1999 (NSW). The relevant date was 15 December 2016. On 19 December 2016 the solicitors for the defendant wrote noting that the date had past and no proceedings had been served. Accordingly, the insurer advised the plaintiff’s solicitors that the claim was deemed to be withdrawn pursuant to s 110(3) of the Motor Accidents Compensation Act 1999 (NSW). However, the plaintiff’s solicitors had commenced proceedings at the last minute, by filing a statement of claim on 13 December 2016.

The evidence of the plaintiff and the defendant

38. The plaintiff told the court, in the course of his evidence in chief, that he was riding his motorcycle at speed down when the accident occurred, on a clear, sunny, dry day (T 17). There was no other vehicle on the road except that of the defendant. He had been over taken earlier by the defendant, who was also riding a motorcycle, on a bend a few kilometres out of town (T 18), but later caught up to him.

39. At a point approximately 400 metres before the Kaolin Road junction, the plaintiff described the defendant as having either stopped or almost stopped, his motorcycle on the left side of the lane:

“Q.  From the causeway to where you saw the black bike slowing down, how far?

A.  I started to see him at about 150 metres past the causeway, and then a further 400 metres from the junction he sort of slowed down there, and then‑‑

Q.  When you say that the black bike slowed right down, what do you mean?

A.  Well, he obviously slowed down because I was closing the gap there, and that's when I saw the light come on about 150 metres past the causeway.  Now it's 550 metres from the causeway to the junction and about 400 metres from the junction is where the motorcycle had come to a stop, almost a stop.  That was very close to the T‑junction sign.

Q.  What happened next?

A.  Well, as I approached I could ‑ the motorcycle he was almost stopped or stopped, I can't actually remember that.

Q.  Where was the black motorcycle on the road?

A.  He was very close into the verge of the road, at the edge of the road, very close to it.  So, I went past him, I didn't have to cross the centre of the line because I was already getting ready to take the bend and that's the position I would have been in to take that particular bend.” (T 20)

40. The plaintiff described how he lost control of his motorcycle:

“Q.  What happened as you passed him?

A.  Well, as I was coming in to the junction and the bend this motorcycle suddenly shot up on my inside, on the inside there, and came upon me, and saw this slightly thing but he startled me by suddenly appearing on my left‑hand side.

Q.  And then what happened?

A.  And that caused me to go off on the right‑hand side of the road, obviously thinking that if I continued on my line for the bend there would have been a collision, so I took evasive action and finished upon the other side of the road.

Q.  Had you not taken evasive action what do you think would have happened?

A.  I'm pretty sure if I hadn't taken the evasive action there could have been a collision.

Q.  You left the road, I think you said?

A.  I did, I left the road.

Q.  Whereabouts did you leave the road, in the sense of leaving the sealed section of the road?

A.  Yes, on the very corner of the mouth of the junction I left on that spot there, and there were two, which are still there, the two roadside markers.  I passed those on ‑ they were on the right, so I went to the right of the markers and by that time I was onto the hard gravel.  I continued along the hard gravel.  With my riding experience I truly expected I should be back on the bitumen, however the camber of the hard shoulder and the prospect of the bend coming up, in which there was a ditch full of water, I decided to abandon the bike, put it down.

Q.  When you say, "camber of the hard shoulder" what do you mean?

A.  Sorry?

Q.  You mentioned the expression "camber of the hard shoulder?

A.  The camber yeah.  Where the bitumen is and the hard shoulder, the hard shoulder goes down into a bank, into the ditch, and that was sort of getting a bit ‑ it was pulling me over to the right‑hand side.

Q.  Are you talking about a slope, are you?

A.  A slope, yeah.

Q.  Do I understand your evidence to be that it was the slope that compromised your ability to stay upright?

A.  Yes.  I distinctly remember picking out a white marking, which I knew were flexible, the roadside markers, that if I hit the roadside marking, I would be back on the bitumen and I missed ‑ I missed that marker by probably 400 millimetres.” (T 20-21)

41. The defendant’s account of the accident suffered by the plaintiff is very different. He agrees that he overtook the plaintiff at a speed of between 90 to 95 km/hr (T 73) and says that he continued ahead of the plaintiff, slowing to approximately 60 km/hr as he approached Kaolin Road (T 73-84). He denied that he stopped or nearly stopped at any time. The plaintiff was behind him at all relevant times and on his right side (T 75). As the defendant accelerated out of the corner he saw the plaintiff’s bike in his mirror, which was on the far right side of the road and drifting into the gravel (T 75). He went to assist the plaintiff. He remained with the plaintiff until another person came to the scene of the accident, as neither the plaintiff nor the defendant had a mobile phone.

42. In cross-examination, it was put to the defendant that he was riding the most powerful bike on the road and that he was riding at speed:

“Q.  It was a fast bike?

A.  It was a fast bike.

Q.  And that was its claim to fame, it was literally the fasted bike on the road, wasn't it?

A.  Literally, but not‑‑

Q.  And that was one of the reasons that you enjoyed owning it?

A.  No.

Q.  Well, you bought the fasted bike on the road and you didn't enjoy the power and speed of it, is that what you're saying?

A.  I'm not saying that, I'm ‑ I bought it because I had ‑ the previous bike was one very similar.

Q.  Yes?

A.  And it was just a newer model.

Q.  And the reason that you enjoyed that model was because it was a powerful motorcycle?

A.  Not entirely.

Q.  But that was a part of your reasoning for enjoying the ride on that bike?

A.  No, it wasn't.  No.

Q.  And motorcycling, you've ridden for years, have you?

A.  I have, yes.

Q.  And you enjoy the thrill of acceleration on the motorcycle?

A.  I did, yes.

Q.  And you've enjoyed getting out on the open road, the freedom of the road and riding along on your Honda Blackmode?

A.  I do.” (T 77-78)

43. It was also put to the defendant that he could not have been present at the site when the ambulance came as the ambulance did not arrive until after he had left, and that this was significant evidence of his inability to recall what occurred.

44. To summarise the defendant’s evidence, he slowed down to approximately 60km/hr as he approached the intersection with Kaolin Road (T 74) but at no time did he stop or nearly stopped. At the time, the plaintiff was just back from the defendant and on his right. As he accelerated out of the corner, he saw the plaintiff’s bike in his mirror on the far right side of the road drifting into the gravel (T 75). The bike slid over and the defendant went back to assist the plaintiff. He had consistently maintained this description of how the accident occurred not only in his conversation with the plaintiff on the telephone and with his own police statement (Exhibit 2), but also with the plaintiff’s own police statement (Exhibit H).

43. The defendant was an impressive witness in that he gave his evidence frankly and without embellishment, and that evidence is consistent with the contemporaneous reports he gave at the time.

Reconciling the plaintiff’s evidence with the other evidence

46. The plaintiff was unable to explain his cross-examination how it is he failed to provide the police with the version of events set out in his evidence in chief. He claimed to have been under sedation from drugs after leaving the hospital, but he was in fact taking antibiotics and painkillers, as the hospital records demonstrate (T 42).

47. He acknowledged that he knew how important it was to provide the police with an accurate account of what had happened and he agreed that a number of the statements he made were factually correct (T 42 line 45).

48. The plaintiff was taken through the contents of his police statement, sentence by sentence, and effectively agreed the contents were entirely accurate (T 43-44). It was put to him that the reason for this was that what he said to the police was completely true, including the account of the telephone conversation with the defendant (T 44). He was asked about this conversation at T 44-45:

“Q.  But Mr Hobson that's not what I was asking you.  You did have a sufficient contact detail that you were able to ring Glenn Rogers?

A.  Given to me by my son‑in‑law.

Q.  I don't care who gave it to you, but the fact is that you had it?

A.  Well, I did have it.  I had it, yes.

Q.  You knew how to contact a gentleman who had been riding a bike and how had stopped to help you, that's correct isn't it?

A.  Yes, that's true.  Yes.

Q.  And you knew that the gentleman who had been riding a bike, and stopped to help you, was the rider that you had been in the course of overtaking?

A.  I didn't know that he was the rider that was involved in the accident.  He could have come along later, I don't know.

Q.  But you know there was only one motorcyclist that attended to you and he was the one that you rang to thank?

A.  Yes.

Q.  And you made no suggestion to the police of there being any contribution to the accident from the other motorcyclist; you made no suggestion, did you?

A.  Well, as the point was I ‑ there was no contact with it, with the other motorcycle and I took evasive action and finished up on the wrong side of the road.  As far as I was concerned there was no accident.

Q.  You didn't tell the police that you took evasive action, you simply said that you went into the gravel?

A.  Well, I probably did, yes.

Q.  And you didn't suggest to the police that the other motorcycle sped up, in fact you didn't suggest to the police there was anything that the other motorcycle did that had anything to do with you leaving the road?

A.  That's right, yes, I didn't.

Q.  Because at the time you thought that you were at fault because you had lost control attempting to go around another motorcycle, that is, overtaking it, didn't you?

A.  I thought I was at fault?

Q.  Yes?

A.  No, I didn't.

Q.  I suggest that at the time you spoke to the police you thought that you were at fault for having gone onto the wrong side of the road and then losing control of your bike in the gravel?

A.  Well I was at fault for doing that, yes.

Q.  And you were at fault for putting yourself in that position because you weren't concentrating as you overtook the other bike?

A.  I don't believe that.”

49. He was asked at T 47:

“Q.  Do you have any explanation for why you did not tell the police of any involvement in the other motorcyclist in your accident?

A.  No.

Q.  And the fact was that at the time that you spoke to the police, you had already spoken to the other motorcyclist and you had not suggested to him that he had done anything wrong in the accident?

A.  I asked him if he was involved in the accident and he said he was not.”

50. He was asked about contradictory statements in his claim form (at T 48-49):

“Q.  When you completed the claim form, the first claim form you completed, you say you did this after your wife had gone and made some inquiries on your behalf.  At that time did you believe that if you had been involved in an accident and someone else was at fault, you might be able to claim damages?

A.  No, when my wife was making inquiries about the green slip, I just thought that was the process to go through, to possibly claim compensation.

…

Q.  Do you see the question about halfway down the page completing details of the vehicle that you consider was at fault?

A.  Yes.

Q.  And all of those details are all of the details that are requested have been left blank?

A.  Well I didn't know them did I.

Q.  The point that I ‑ what I wanted to ask you was, in fact you did know some of them because you knew that Glenn Rogers was the rider of the other bike?

A.  I did not know who ‑ I knew that there was a rider of the bike at the accident scene when I spoke to Glenn Rogers, he denied being with the accident and I assumed that he was just somebody else that had stopped to help.  I didn't even know whether he was riding a motor bike this bloke I was talking to, I just got the name of somebody who came across the accident and that's why I phoned him.  He denied being having any involvement in the accident so I took it that he was just one of the people that had stopped at the accident like so many other people and then I more or less dismissed that out of my mind after that conversation.  That is the basis of it and I also believe that I put in an annexure of the details of the accident in the form that I sent in.  Detailing the accident.”

51. He was shown an affidavit dated 17 February 2015 which he swore for the purpose of the s 109 application and asked (T 50-51):

“Q.  So in that affidavit you swore that you made the allegation concerning the rider of the other motorcycle and then you say in paragraph 9, "The rider came back to the accident site and said to me words to the effect" is that correct?

A.  That's correct, yeah.

Q.  So, you agree that the fact is that you knew that the person who came back to you at the accident scene was the rider of the other bike?

A.  Yes, I accept that, yes.

Q.  And so you knew when you had the phone call with Mr Rogers in early November 2008, that he was the rider of the other bike?

A.  No, I didn't, I didn't know who he was.

Q.  Well you knew that you were only attended to by one motorcycle rider?

A.  As far as I know there was only one motorcycle there, yes.

Q.  And you knew that the motorcyclist who was there was the other rider?

A.  Well the motorcyclist that was there at the accident, he was the other rider I believe yes.

Q.  And you knew when you spoke to Mr Rogers in early November that he was the other rider?

A.  I didn't know that, I asked him and he said he wasn't involved in the accident.  He didn't say he was a rider or not, I just phoned up a contact that I got and spoke to him about it.  I thanked him for being at the accident scene to help.

Q.  But Mr Hobson, do you realise that that piece of evidence is completely inconsistent with what you told the police?

A.  (No verbal reply)

Q.  Because what you said to the police was, I may know the identity of the other motorcycle, I rang to thank him?

A.  No, well that, I can't remember saying that.

Q.  Well you did say it?

A.  I might have done, if I've said it, if he's down there well, that's what I said, but I can't remember saying that.”

52. There is more cross-examination to the same effect. However, these extracts from the transcript demonstrate a significant feature of the plaintiff’s evidence, namely his refusal to acknowledge the clear inconsistencies between his contemporaneous versions of the accident to the police, to the hospital and to the defendant with his account of these events now. In none of his answers did the plaintiff provide any credible explanation for failing to provide to police the version of events that he now gives.

53. The defendant submits, and I agree, that it is highly significant that the plaintiff never indicated to the police that the other motorcycle played any part in the accident. Although he suggested that his wife had made a statement to this effect, there is no notation of this in the police notebook, and the plaintiff’s wife was not called. Not only did the plaintiff fail to mention to police that the other rider had ridden “up the inside”, but he never stated to the police that the other rider had been speeding or riding dangerously in any way, or had indeed had anything to do with the accident.

54. The plaintiff’s statements to police that he did know who the other motorcyclist was, and/or that he had rung to thank him, would both be inconsistent with an allegation of negligence of this kind against the defendant, as well as with versions of events where a third motorcyclist is referred to as being the cause of the accident. The plaintiff’s claim in his evidence (see T 49) that when he rang the defendant he did not know who the other motorcyclist was cannot be accepted. This is all the more the case considering that the defendant’s evidence was that the plaintiff asked the defendant to say the accident was his fault (T 76).

55. Finally, independent of these inconsistencies, the plaintiff’s assertions in his evidence that the defendant had either stopped or nearly stopped, or that he was somehow trying to drag race the plaintiff, are not merely inconsistent with the contemporaneous accounts but implausible. In addition, these versions of the events are also inconsistent with the report of the expert, Mr Chris Hall.

The expert evidence

56. An expert report from Mr Chris Hall dated 31 May 2017 was tendered by the defendant.

57. The admissibility of this report was challenged, on the basis that Mr Hall had usurped the role of the trial judge, in that he had come to conclusions concerning the findings of fact in this case. I do not accept that submission. What he has done is to demonstrate the implausibility of the plaintiff’s accounts of the accident by careful regard to all of the information in his possession, in accordance with his obligations as an expert, fully exposing his reasoning in accordance with the requirements of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

58. Mr Hall’s report sets out a list of the information to which he had access. This included the plaintiff’s accounts to the police, the plaintiff’s claim form (including the diagram attached to the AAMI claim form). It is clear from his account of events that he has appreciated both the defendant’s version of events and the plaintiff’s allegation of being startled and subsequently losing control of his bike. Contrary to the submissions of counsel for the defendant, I am satisfied that Mr Hall was well aware that the plaintiff claimed to have been startled by the defendant slowing and to have consequently lost control of his motorcycle, and he has accordingly considered the plaintiff’s account of how he says the accident happened.

59. Mr Hall sets out at paragraph 9.7 of his report:

“Mr Hobson claims that Mr Rogers accelerated rapidly. The rate at which a rider can accelerate is limited by the angle of lean of the motorcycle. In the area where Mr Rogers is alleged by Mr Hobson to have accelerated rapidly, the angle of lean of a motorcycle, at a speed of around 80kph, would be approximately 12°. That angle of lean would prevent maximum acceleration by Rogers, and would tend to curtail any rapid acceleration.”

60. This opinion runs as counter to the plaintiff’s account of the accident. Mr Hall goes on to say at paragraph 9.13:

“Assuming that Mr Hobson was just over the dividing line as he was attempting to overtake (in accordance with his diagram), he would have travelled at least 50 metre before running off the roadway in the unlikely event that he had travelled tangentially straight ahead at the apex. That would have required a major steer input or front brake application to achieve the necessary deviation.”

61. Mr Hall’s conclusions are as follows:

“11.1 The physical evidence is consistent with an approach speed for Mr Hobson of 80 - 90 kph.

11.2 At a speed of 90 kph, Mr Hobson should have been capable of maintaining proper control of his motorcycle through the bend with a relatively small lean angle.

11.3 The controllability of Mr Hobson's motorcycle would not have been compromised by the proximity of Mr Rogers and his motorcycle.

11.4 As Mr Hobson was attempting to overtake, normal riding behaviour would have resulted in both Mr Rogers and the road ahead remaining within Mr Hobson's field-of-view at the same time.

11.5 The riding behaviour of Mr Rogers was consistent with that expected of a typical rider within the motorcycle community and should not have been surprising to another experienced motorcyclist.

11.6 The action by Mr Hobson in attempting to overtake another rider on the outside through a bend is not a commonly adopted practice by riders due to the risks associated with it.

11.7 Depending on the actual line-marking at the time of the incident, Mr Hobson may have been undertaking an illegal manoeuvre.”

62. Mr Hall’s report not only notes the inconsistencies in the plaintiff’s accounts but also in the inherit implausibility and factual errors in the plaintiff’s account of how the accident occurred (see pages 13 and 14 of the report, extracts from which are set out above).

Conclusions concerning liability

63. All of the evidence points to the plaintiff losing control of his bike in the manner described in the hospital notes and to the police, in circumstances where no other rider was involved.

64. In the course of his evidence, the plaintiff referred many times to his love of motorcycles and his distress at no longer being able to ride them. He presented as a proud motorcycle rider of long standing, but one who had trouble accepting that he had been responsible for the accident which had seriously injured him. I do not consider that he was deliberately lying, but rather that he was unable to accept the events that had happened.

65. However, on any version of the accident, in terms of the plaintiff’s own descriptions prior to his evidence in the witness box, the defendant cannot be liable for the circumstances in which the plaintiff lost control of his bike and suffered injury.

66. There will accordingly be judgment for the defendant.

67. In the alternative, I note that I would not have granted the application for extension of time, for the reasons set out below.

The application for extension of time

68. The plaintiff is not entitled to commence proceedings unless granted leave (which can be granted nunc pro tunc) by the court pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) which provides:

“109 Time limitations on commencement of court proceedings

(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a) the date of the motor accident to which the claim relates, or

(b) if the claim is made in respect of the death of a person--the date of death, except with the leave of the court in which the proceedings are to be taken.

(2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.

(3) The leave of the court must not be granted unless:

(a) the claimant provides a full and satisfactory explanation to the court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.

(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity.

(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.”

69. The definition of “full and satisfactory explanation” is set out in s 66(2) Motor Accidents Compensation Act 1999 (NSW):

“(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.”

70. As the parties agree that the plaintiff would be entitled to more than 25% of the maximum that may be awarded for non-economic loss, the sole issue is whether the plaintiff has a full and satisfactory explanation for the delay in commencing these proceedings.

The relevant period of time

71. The defendant restricts period for explanation to the period from 14 November 2008 (the date of discharge from hospital) to the commencement of these proceedings (13 December 2016). The defendant identifies the six periods of time during this 8-year period:

1. 14 November 2008 to 21 June 2010 (date of discharge from hospital to the date of the NRMA claim form);

2. Shortly after 21 June 2010 (when the personal injury claim form was submitted to the NRMA) to October 2011 (when the plaintiff’s statutory declaration to the NRMA explaining delay and lodgement of the claim form was provided);

3. October 2011 to January 2014 (a period of two years and three months);

4. January to October 2014;

5. December 2014 to 15 April 2015 (when proceedings were commenced to set aside the AAMI settlement agreement);

6. April 2015 to December 2016 (in circumstances where the CARS exemption was granted on 27 November 2015).

72. The defendant accepts that the issue of the setting aside of the deed with AAMI on behalf of the Nominal Defendant was a complication to which some delay can be attributed, but noted that the plaintiff could have filed a statement of claim at any time after the exemption of the proceedings (27 November 2015). These proceedings were not commenced until 13 December 2016, and then only after warnings of the imminent expiry of the s 110(3) period (on 19 December 2016).

73. The plaintiff’s explanation for the delay was of the “sins of the solicitor” variety (Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953), namely that the solicitor the plaintiff sought advice from had been less than attentive, and additionally had taken misguided steps on the plaintiff’s behalf, such as resolving the proceedings with AAMI by way of settlement, failing to make better enquiries of the police and the like.

74. I do not accept this submission. The plaintiff’s solicitors were in a difficult position, in that the plaintiff provided them with inconsistent instructions as to who was responsible for the motor vehicle accident. They were hampered by the obviously contradictory statements made to the police by the plaintiff at the time. The correspondence between the solicitors for the plaintiff and the police and insurance companies is prolific and indicates a solicitor doing his best to assist a client whose instructions must have been confusing and inconsistent. The plaintiff’s changing story, not the neglect of the solicitor, is the explanation for much of the delay, and the explanations for delay must be regarded as unsatisfactory for this reason.

The relevant principles of law

75. Both parties referred me to Walker v Howard [2009] NSWCA 408 where the Court of Appeal explains the proper construction of s 109 (at [45]-[49]) and the correct way to determine a “reasonable person in the position of the claimant” (at [63]-[66]).

76. The plaintiff had suffered a severe injury to his leg but was otherwise capable of giving instructions. The plaintiff was personally unable to explain any of the above periods of delay, either in the affidavit he filed in relation to the s 109 application or in the course of his evidence.

77. The result is that neither a full nor satisfactory explanation is given, not only for each of the periods of delay outlined above, but for the whole of the circumstances in which the cumulative periods of delay arise from the completely different explanations for the circumstances of the accident to all the contemporaneous records.

75. I note the observations of the Court of Appeal in Walker v Howard at [95] as to the difficulties in reconciling authorities in cases where the result turns largely on the facts, but this is a rare case where there really is no explanation as to why it took the plaintiff this extraordinarily long period of time to bring proceedings against the defendant when the defendant’s identity was known to him on or shortly after the day of the accident to the extent to which he had a conversation with him about the accident.

76. While only presumptive prejudice is claimed, the difficulties of any person giving evidence a decade later are self-evident. It was apparent from the defendant’s evidence that he did in fact have difficulties remembering what occurred by reason of this long period of time. It is also evidence, from the plaintiff’s solicitor’s correspondence with the police, that the police faced similar difficulties when asked to make further investigations some years after the accident.

Conclusions concerning the s 109 application

80. The plaintiff has failed to provide either a full or satisfactory explanation for each of the periods of time identified by the defendant.

81. In the event that I have erred in this regard and my observations as to quantum would be of assistance, I set these out.

Quantum

82. The particulars of injury pleaded in the Amended Statement of Claim are as follows:

1. An injury to the left leg involving compound fracture of the left femur and compound comminuted fracture of left tibia and fibula;

2. Complications in injury to left leg healing as a result of infections;

3. Abrasions;

4. Shock;

5. Depression.

83. The particulars of disabilities pleaded are as follows:

1. Requirement to undergo operative treatment, involving insertion of metal fixtures above and below the knee;

2. Requirement to undergo operative treatment involving skin grafting and reconstruction;

3. Plaintiff has a permanent limp;

4. Requirement to use crutches for a period of time (since resolved);

5. Difficulty walking for any but short distances;

6. Difficulty standing for any but short periods of time;

7. Difficulty using stairs;

8. Difficulty dressing, in particular putting on shoes and socks;

9. Severely restricted movement of left knee;

10. Loss of freedom of movement generally;

11. Requirement to use leg support whilst sitting;

12. Pain and restricted movement of left leg;

13. Requirement to undergo painful physiotherapy;

14. Requirement to ingest pain relieving medication;

15. Interference with sleep;

16. Continual sensation in left knee of tightness and restrictions.

84. The plaintiff’s schedule of damages is as follows:

Non-economic loss	$300,000
Past wage loss	$125,236
Past and future superannuation	Nil
Future economic loss	$25,000
Past out of pocket expenses	$3,207.05
Future out of pocket expenses	$34,770
Past domestic assistance	$25,000
Future domestic assistance	$100,000

85. The defendant’s schedule of damages is as follows:

Non-economic loss	$200,000
Past economic loss	$15,000
Future economic loss	Nil
Loss of superannuation	Nil
Past out of pocket expenses	$3,207.05
Future out of pocket expenses	$10,000
Past domestic assistance	Nil
Future domestic assistance	Nil

86. The medical evidence tendered by the plaintiff is largely unchallenged. He has suffered a significant injury. I would accept the figure for non-economic loss proffered by the plaintiff, namely $300,000.

87. However, the evidence of the plaintiff’s economic loss is at best scanty. He appears to have participated in country auctions on a cash basis and to have bought and sold second hand goods in circumstances where he had an income at or below the tax threshold. He also did some odd jobs and contract work, but there is scant evidence in terms of financial records. I would accept the defendant’s estimate of past economic loss at $15,000 and, to err on the side of caution, would award a similar sum for future economic loss, having regard to the plaintiff’s age and limited pre-accident earning capacity.

88. Past out of pocket expenses are noted at $3,207.05. I would accept the plaintiff’s estimate of future out of pocket expenses.

89. I would not be prepared to award past or future domestic assistance, having regard to the reservations expressed in the occupational therapist’s report. Ms Piebenga’s careful analysis (Exhibit 1, pp 15-65) makes it clear that the plaintiff’s claim falls below the threshold. I prefer her report to that of Ms Grinter (Exhibit A). I note the plaintiff’s wife was not called.

Orders

1. Judgment for the defendant.

2. Plaintiff pay defendant’s costs.

3. Liberty to apply in relation to costs.

4. Exhibits retained for 28 days.

**********

Decision last updated: 12 June 2019