Howard v Lyndon - [2023] WADC 99

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HOWARD -v- LYNDON [2023] WADC 99
CORAM:   RUSSELL DCJ
HEARD:   12-14 SEPTEMBER 2022
DELIVERED          :   28 AUGUST 2023
FILE NO/S:   CIV 3627 of 2017
BETWEEN:   AARON BRIAN HOWARD
Plaintiff
AND
PATRICK BERNHARD LYNDON
Defendant

Catchwords:

Tort - Negligence - Motor vehicle accident - Whether defendant owed a duty of care to the plaintiff - Contributory negligence - Whether plaintiff has a defence to claim under Offenders (Legal Act) Act 2000 (WA), s 5 - Whether injury or loss suffered in course of criminal conduct

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5K, s 5K1(1)
Criminal Code Act Compilation Act 1913 (WA), s 24, s 371, s 371A, s 414, s 417, s 417(1), s 417(2)
Evidence Act 1906 (WA), s 79C, s 79D
Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act 1947 (WA), s 4
Offenders (Legal Action) Act 2000 (WA), s 3(1), s 3(2)(a), s 5, s 5(1)

Result:

Judgment for the plaintiff
Contributory negligence assessed at 30%
Liability apportioned 70%/30% in favour of the plaintiff

Representation:

Counsel:

Plaintiff	:	Mr D R Clyne
Defendant	:	Mr G P Bourhill SC & Mr C C Rimmer

Solicitors:

Plaintiff	:	Simon Walters
Defendant	:	Sparke Helmore Lawyers

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

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Apostolic Church Australia Ltd v Dixon [2018] WASCA 146
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Austin v The Electricity Networks Corporation [2014] WASCA 89
Briginshaw v Briginshaw (1938) 60 CLR 336
Carrati v Potts [2015] WASC 86
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241
Hoskins v Ramsden [No 2] [2009] WASCA 90
Johnson v The State of Western Australia [2009] WASCA 71; (2009) 40 WAR 116
Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334
Le v Feakes [2018] WASC 331
McLennan v Campbell [2003] WASCA 145
Moodie v The Queen (1952) 54 WALR 80
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Ollerton v The Queen (1989) 40 A Crim R 133
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 494
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
Quine v Keerasawat [2014] WADC 150
Rankilor v City of South Perth [2016] WASCA 29
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Sharland v The Queen (Unreported, WASC, Library No 7494, 3 February 1989)
The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40
Town of Port Hedland v Reece William Hodder by Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212; (2012) 43 WAR 383
Weston v The Queen (Unreported, WASCA, Library No 920099, 27 February 1992)
Whelan v Kallane [2021] WASC 74
Whittle v Brown [2011] WASC 143
Wreford v Lyle [No 3] [2021] WASCA 20

Table of Contents

Overview

Circumstances of the accident

The plaintiff's case

The defendant's case

The issues

Matters not in issue

Issues to be determined

The evidence at trial

The witnesses

Evidence of Aaron Brian Howard

Evidence of Simon Christopher Grantham

Evidence of Patrick Bernard Lyndon

Evidence of David Richard Todd

Evidence of Kellie Marie Pearse

Evidence of Francis Reginald Baulch

Evidence of John Christopher Higgins

Evidence of Andrew John Higgins

Evidence of Michael Terrence Clune

Evidence of Valerie Wendy Lambert

Evidence of Parminder Bhatti

Witness statement of Daren Lambert

Report of Robert Davey

Vehicle examination report of Stuart Budd

The utility

The motorcycle

Relevant legal principles - duty of care and contributory negligence

Did Mr Lyndon breach his duty of care to Mr Howard by his manner of driving?

Were Mr Howard's injuries caused by Mr Lyndon's breach of his duty of care?

To what extent, if any, did Mr Howard cause or contribute to his own loss or damage by the manner of his driving?

Was Mr Howard driving at excessive speed?

Could Mr Howard have taken any action to avoid the collision?

What is the appropriate apportionment of liability?

Were Mr Howard's injuries and loss suffered in the course of criminal conduct by him so as to constitute a defence to the action pursuant to s 5(1) of the Offenders (Legal Action) Act 2000?

Relevant provisions of the Offenders (Legal Action) Act 2000

The alleged criminal conduct

The terms of the relevant sections of the Criminal Code

Section 371A

Section 414

Section 417

Onus and standard of proof

Section 24 of the Criminal Code

Was Mr Howard engaged in criminal conduct at the time of the accident?

Conclusion and orders

RUSSELL DCJ:

Overview

The plaintiff, Aaron Brian Howard, claims damages for personal injury suffered by him in a road traffic accident on 6 October 2014 (the accident). The accident occurred on the southbound dual carriageway of Marmion Avenue adjacent to the entrance to the Tamala Park Recycling and Disposal Centre (the recycling centre).
At the time of the accident:
1.Mr Howard was riding an unregistered 900 cc Kawasaki Ninja motorcycle (the motorcycle) on the southbound carriageway of Marmion Avenue in the lane closest to the median strip;
2.the defendant, Patrick Bernhard Lyndon, was driving a Nissan Navaro utility vehicle registration number 1CIL 312 (the utility); and
3.there was a collision between the motorcycle and the utility on the southbound carriageway, as the utility made a right turn to enter the recycling centre from the intersection between the two carriageways.
It is not disputed that Mr Howard suffered serious injuries in the accident. Damages have been agreed in the amount of $950,000, leaving the issue of liability to be determined.
Mr Howard alleges the accident was caused solely by Mr Lyndon's negligence. Mr Lyndon denies he was negligent and says the accident was caused, alternatively contributed to, by Mr Howard's own negligence by driving at excessive speed, amongst other things.
Further, Mr Lyndon relies on s 5(1) of the Offenders (Legal Action) Act 2000 (WA) (Offenders Act), which provides a defence to a claim for injury or loss shown to have been suffered by a person in the course of criminal conduct. Mr Lyndon contends that Mr Howard is not entitled to damages for injury or loss suffered because the motorcycle was stolen, and the injuries were suffered by Mr Howard in the course of criminal conduct. This is denied by Mr Howard.
For the reasons that follow, I am not satisfied to the required standard that Mr Howard suffered the injuries or loss claimed in the course of criminal conduct, and I find that:
1.Mr Lyndon was negligent, and is liable to Mr Howard for the injuries he suffered as a result of the accident.
2.Mr Howard was negligent and contributed to his injuries by driving at excessive speed.
3.In the circumstances, the appropriate apportionment of liability is 70% to Mr Lyndon and 30% to Mr Howard.

Circumstances of the accident

Before addressing the issues to be determined in this action, I will outline, in general terms, the circumstances of the accident and the competing positions of the parties giving rise to the issues in dispute. Unless otherwise indicated, the following matters are common ground, are not disputed or are unequivocal, and I find them to be facts.
The relevant section of Marmion Avenue in Tamala Park where the accident occurred can be seen in the following aerial photograph, which formed part of the evidence at trial:[1]

[1]Exhibit 1: Report of Mr Robert Davey, motor vehicle accident consultant dated 27 January 2020, page 3 ‑ Figure 1: Plan view of Marmion Avenue, Tamala Park at the entrance to the recycling centre.

The speed limit in that area of Marmion Avenue is 80 km per hour. On the day of the accident, the weather was fine and the road was dry. The accident occurred at approximately 2.45 pm on 6 October 2014 in the outside lane of the southbound carriageway of Marmion Avenue, Tamala Park, opposite the entrance to the recycling centre.
At that location, Marmion Avenue is a four-lane carriageway with two lanes going in each direction divided by a 14 metre (m) wide median strip. Each lane is approximately 3.3 m wide delineated by dashed white lines. Opposite the entrance to the recycling centre, there is a gap in the median strip between the two carriageways to allow vehicles travelling in a northerly direction on Marmion Avenue to turn right into the recycling centre. On the same side of the road as the recycling centre, there is a slip lane for vehicles to exit Marmion Avenue and turn into the recycling centre. Vehicles are also permitted to exit the recycling centre to turn right to travel north towards Mindarie. Slip lanes are provided for northbound and southbound traffic to turn into the recycling centre.[2]
[2] See Exhibit 1, pages 2 - 3, section 5.1: The Scene, General Layout. See also the aerial photograph reproduced at [8].
Mr Howard was riding the motorcycle in a southerly direction on Marmion Avenue in the right‑hand lane closest to the median strip. Mr Lyndon was driving the utility with two mattresses tied to its roof, travelling on the northbound carriageway of Marmion Avenue. As Mr Howard approached the recycling centre, Mr Lyndon drove the utility into the gap in the median strip to turn right into the entrance to the recycling centre. As the utility entered onto the southbound carriageway to turn right, there was a collision between it and the motorcycle Mr Howard was driving.
Mr Howard was flung from the motorcycle and came to rest several metres away from the site of the collision. Mr Howard suffered serious injuries, which are described in further detail later in these reasons. He was taken by helicopter to hospital. He claims in negligence against Mr Lyndon for damages for personal injury and losses suffered as a result of the accident.

The plaintiff's case

In summary, the plaintiff's case is as follows:
1.The accident was caused by Mr Lyndon's negligent driving, particularised in par 3 of the amended statement of claim[3] as follows:
[3] Amended statement of claim filed 5 January 2022.
Particulars of Negligence of the Defendant
The defendant was negligent in:
(a)failing to keep any or any proper lookout;
(b)failing to drive with any or any proper control;
(c)driving at a speed which was excessive in all the circumstances;
(d)failing to brake in time to avoid the collision at all; and
(e)failing to steer or control the motor vehicle so as to avoid the collision.
3.Mr Howard sustained multiple life-threatening injuries. I do not set out the full details of the injuries in these reasons. Though they are not admitted on the pleadings, the injuries sustained and the damages arising are not issues I need determine. Damages have been agreed in the amount of $950,000, subject to determination of liability. The injuries sustained by Mr Howard include multiple leg fractures, external and internal lacerations, intracranial bleeds with subdural and subarachnoid haematomas and psychological injury.
4.Mr Howard was transported from the scene of the accident by helicopter to Royal Perth Hospital, where he was treated as an in‑patient for approximately three months. He was in a coma in the intensive care unit for eight days following his admission and then placed in the major trauma unit. He underwent multiple surgical procedures and rehabilitation.
5.Mr Howard has incurred costs and expenses with respect to medical treatment and management required for his injuries and has suffered (and will continue to suffer) loss, pain and suffering, loss of enjoyment of life and loss of amenities, as pleaded in pars 6 - 12 of the amended statement of claim.
6.Mr Howard denies he was driving at excessive speed or that his injuries were sustained by him in the course of criminal conduct, as alleged by Mr Lyndon.
7.Mr Howard purchased the motorcycle in good faith on 4 October 2014 for $3,000. The motorcycle was unregistered and had no number plates. He purchased it from a man he believed to be the owner. It came with an ignition key, and he had no reason to suspect it was stolen.
8.On the day of the accident, Mr Howard was riding the motorcycle to an inspection facility to have it inspected for suitability for registration.
9.He has not been charged with or convicted of any offence of the kind alleged, has not committed any such offence, and the claimed defence under the Offenders Act does not apply.

The defendant's case

The defendant's case is, in summary, as follows:
1.Mr Lyndon admits that, on 6 October 2014, a collision occurred on Marmion Avenue in Tamala Park between the utility he was driving, and the motorcycle being ridden by Mr Howard.
2.He denies he is liable in negligence to Mr Howard. Mr Lyndon took reasonable care in keeping a proper lookout for oncoming traffic before he started to turn right into the recycling centre.
3.The accident and any injuries, loss and damage suffered by Mr Howard in the accident were wholly caused or contributed to by Mr Howard's own negligence, as particularised in par 16 of the re-amended defence,[4] as follows:
[4] Re-amended defence filed 7 September 2022.
PARTICULARS OF PLAINTIFF'S NEGLIGENCE
The plaintiff was negligent in that he:
(a)failed to keep a proper, if any, lookout;
(b)failed to take reasonable care for his own safety;
(c)rode the motorcycle at a manifestly excessive and dangerous speed;
(d)failed to brake, swerve, steer or otherwise avoid a collision with the defendant's vehicle.
4.Mr Lyndon also relies on the defence provided by s 5 of the Offenders Act on the basis that any injuries Mr Howard suffered were sustained in the course of criminal conduct by him, as particularised in par 14 of the re‑amended defence, as follows:
PARTICULARS OF CRIMINAL CONDUCT
(a)On a date and time unknown to the defendant (but prior to 2:45pm on 6 October 2014) the plaintiff unlawfully assumed control of the motorcycle and in doing so breached s 371A(1)(a), (b) or (c) of the Criminal Code 1913 (WA);
(b)Alternatively, the plaintiff took possession of the motorcycle in contravention of s 414 of the Criminal Code 1913 (WA); and
(c)Alternatively, the plaintiff took possession of the motorcycle in contravention of s 417 of the Criminal Code 1913 (WA).
5.The licence plates had been removed from the motorcycle that Mr Howard was riding, which had been stolen from its owner on about 19 September 2014.
6.The motorcycle was owned by David Richard Todd, who had parked the motorcycle on a stopping lane adjacent to the Mitchell Freeway and left it there overnight on 19 September 2014. When he returned for the motorcycle, it was gone. Mr Todd reported its theft to police.

The issues

Matters not in issue

As noted, it is not disputed that Mr Howard suffered serious injuries in the accident. Damages have been agreed in the amount of $950,000, leaving the issue of liability to be determined.
It was accepted on behalf of Mr Lyndon that, as a driver of a vehicle, Mr Lyndon owed a duty of care to other road users, including Mr Howard. Whether Mr Lyndon breached his duty of care and whether he is liable in negligence for Mr Howard's loss and damage remain in issue.

Issues to be determined

The key issues to be determined in this trial are, in general terms:
1.Did Mr Lyndon breach his duty of care to Mr Howard by his manner of driving?
2.If so, were Mr Howard's injuries caused by Mr Lyndon's breach of his duty of care?
3.To what extent, if any, did Mr Howard cause or contribute to his injuries by the manner of his driving?
4.If both Mr Lyndon and Mr Howard are liable, what is the appropriate apportionment of liability between them?
5.Were Mr Howard's injuries and loss suffered in the course of criminal conduct by him so as to constitute a defence to the action pursuant to s 5(1) of the Offenders Act?

The evidence at trial

Mr Howard gave evidence at trial on his own behalf. He also relies on evidence given by Simon Christopher Grantham, and the exhibits tendered at trial.
Mr Lyndon also gave evidence at trial on his own behalf, and relies on the exhibits tendered and the evidence given at trial by the following witnesses called on his behalf:
1.David Richard Todd;
2.Kellie Marie Pearse;
3.Francis Reginald Baulch;
4.John Christopher Higgins;
5.Andrew John Higgins;
6.Michael Terrence Clune;
7.Valerie Wendy Lambert; and
8.Parminder Bhatti.
In addition to the oral evidence given at trial, Mr Lyndon relies upon a handwritten witness statement of Daren Lambert signed and dated 7 November 2014, together with an unsigned typed version of the statement,[5] tendered under s 79C of the Evidence Act 1906 (WA), Mr Lambert being deceased. He died on 30 April 2017.[6]
[5] Exhibit 9.
[6] Valerie Wendy Lambert, ts 120.
The following were tendered by consent:
1.Report of Robert Davey, motor vehicle accident consultant, dated 27 January 2020.[7]
2.Vehicle examination report of Stuart Budd (undated).[8]
3.Email from Stuart Budd to Kim Traynor dated 22 October 2014.[9]
4.Two photographs showing the motorcycle and debris after the accident.[10]
[7] Exhibit 1.
[8] Exhibit 11.
[9] Exhibit 12.
[10] Exhibit 13.
I do not list all of the exhibits tendered. I will refer to the exhibits as they arise for consideration.

The witnesses

The evidence given by the witnesses at trial was to the following effect.

Evidence of Aaron Brian Howard[11]

[11] ts 21 - ts 47; ts 53 - ts 62; ts 67 - ts 71.

At the time of giving his evidence, Mr Howard was 31 years old. He left school in Year 10. After leaving school he did some labouring work and then started scaffolding when he was about 18 years old. He got his scaffolding ticket and was a scaffolder for a few years leading up to the accident. He worked in various locations in the Perth metropolitan area, and on a fly in - fly out basis at a number of mine sites in the Pilbara, including at Port Hedland and Karratha. At the time of the accident, Mr Howard was working on a casual basis a couple of days a week as a scaffolder in the Perth metropolitan area.
When asked how he came to acquire the motorcycle he was riding at the time of the accident, Mr Howard said he bought it from a man named Dale. He said that he had been looking for a motorcycle as the one he had was a bit small and had broken down. The fuel tank on his previous motorcycle was rusted and fuel was leaking from it.
A friend of his, Amy, told Mr Howard that a friend of hers called Dale had a motorcycle for sale. Mr Howard got in contact with Dale and organised a time and place to meet him to view the motorcycle, an unregistered Kawasaki Ninja. He said Dale brought the motorcycle to him on a trailer the Saturday before the accident, 4 October 2014. Mr Howard described the motorcycle as black with green rims and a 900 cc engine. It was taken off the trailer, the engine was started up and he saw that it ran ok. He agreed to buy it for $3,000, which he considered was a reasonable price for its size, age (about 10 years old), and as it was unregistered.
Mr Howard paid Dale $1,600 and was to pay the balance soon after when he received some money he was expecting that he had won through an online casino. He was shown a bank statement[12] for a Bankwest account in his name that showed an entry of $2,900 from Envoy Services on 8 October 2014, which he said were the winnings from the online casino.
[12] Exhibit 2.

Dale gave him a receipt. When asked if he still had the receipt, Mr Howard said no. He said he did not know what had happened to that or a lot of his stuff after the accident because he was in intensive care in a coma for about eight days and then in the State major trauma unit. He was in hospital as an inpatient for around three months.
When asked if he had the receipt with him on the day of the accident, Mr Howard said he must have as on the day of the accident he was going to the licensing centre.
When asked if he knew Dale's other name and his phone number, he said he did not know his other name. He had saved his number on his phone but no longer has the phone as it was destroyed in the accident.
Mr Howard was asked how he started the motorcycle. He said he turned the key, switched it on and pushed the start engine button. He identified the key to the motorcycle by drawing a red circle around it in a photograph shown to him of some keys and other items.[13]
[13] Exhibit 3.
Mr Howard said he did not steal the motorcycle and, when he bought it from Dale, he did not know or think that it might have been stolen. Nor did he think it was stolen when he was using it.
He said that at the time of the accident he was going to the licensing centre in Osborne Park to have the motorcycle inspected and, if there was anything that needed to be fixed on it, get a list of what needed to be fixed.
When asked what the weather was like on the day of the accident, Mr Howard said he believed it was sunny. He said he knew Marmion Avenue and the area approaching the recycling centre well. He was travelling south in the lane closest to the median strip. He did not believe there were any vehicles in his lane in front of him in the kilometre or so prior to where the accident happened.
He recalled passing vehicles that were travelling in the left lane. He had slowed down at a set of traffic lights just south of Anchorage Drive and had almost come to a complete stop. The traffic lights turned green, so he continued and got up to speed quickly. When asked approximately what speed he thought he was travelling as he was approaching the recycling centre, he said approximately 80 km per hour.
Mr Howard does not remember the impact of the accident or anything from there forward apart from waking up in hospital days later. When asked if he saw or appreciated there was a vehicle and whether he saw the vehicle he collided with, Mr Howard said he was not 100% sure.
In cross-examination when asked about his purchase of the motorcycle from Dale, Mr Howard said he first contacted Dale on 3 October and believed he purchased the motorcycle from him on 4 October. He found out about the motorcycle and Dale through a friend of his at the time called Amy. He did not know how Amy found out that Dale had a motorcycle. He did not ask Amy how Dale got the motorcycle. When asked if he was concerned about that, Mr Howard said no.
Mr Howard said Dale brought the motorcycle to him on a trailer. They talked about the price and he showed him it running. When asked if he looked for any of the identifying markers that should be on the motorcycle, Mr Howard said he thought the vehicle identification number (VIN) was under the tank. He did not look for it. He assumed it was there. He did not check. He agreed that he could see that it did not have a number plate. He was asked 'it didn't for one minute go through your mind that it might have been stolen?', to which Mr Howard responded, 'I didn't think so, no'.
Mr Howard was asked if he had a contract of sale for the motorcycle, a document recording that he was buying the motorcycle from Dale and the sale price, the $3,000 he agreed to pay for it. He said he had the receipt which said he had paid $1,600 and was going to pay the balance when his money came in. He said he remembered the receipt but could not say 100% what was in the receipt. He believed the receipt was in one of his pockets on the day of the accident. He could not say what happened to it. He was heavily medicated after the accident and then in hospital for some time.
It was suggested to Mr Howard in cross‑examination that he stole the motorcycle, or knew it was stolen. He was emphatic in his evidence that he did not steal the motorcycle and that he had no reason to think it was stolen. He knew it was unregistered but believed it was owned by Dale. His evidence in relation to this was as follows:[14]
[14] ts 44.
[Defendant's counsel]: …
Now, to be clear, you stole this motorbike, didn't you?---No.
You knew if you bought it from Dale, you knew it was stolen?---No.
You didn't ask him where he got it from, did you?---No.
You didn't ask him anything about it?---What do you mean by anything about it?
Well, anything about the origin of the bike. Where it came from. How he came to have it. How he came to be selling an unlicensed motorbike. You didn't ask him anything about that?---I just believed it was his and – and it had become unregistered.
You didn't - and - but you didn't think for a second it might have been stolen?---No.
Why not? Unregistered motorbike. Why might it not be stolen?---Why would I presume that?
It's - I'm not asking whether you presumed it. I'm asking whether you thought about it?---No, I didn't think about it.
…
Mr Howard's evidence about the speed at which he was travelling was less convincing. He was asked '… you say that you remember you were driving at 80 km per hour?' Mr Howard said that he believed so yes. When asked why he believed he was driving at 80 km per hour, Mr Howard said because that was the speed limit and he looked down at the 'speedo'. He was asked 'you say you weren't driving over the speed limit on this day?', to which he responded 'I don't believe so. No'.[15] When it was suggested to Mr Howard that he was driving between 120 km per hour and 180 km per hour he said, 'I don't know' and then 'no, I don't - I don't think I was'. It was also suggested that he went past people in a flash, he was going so fast, to which Mr Howard responded 'I don't believe so, no'.[16]
[15] ts 45.
[16] ts 45.
In cross-examination, Mr Howard was unable to say how far he was from the utility when he first saw it. He said he did not recall seeing it. He said he did not recall the accident happening.
It was suggested to Mr Howard that the key in the photograph[17] was the key to his old motorcycle and not the motorcycle involved in the accident. He said no, the key to his old motorcycle did not have the black plastic on it.
[17] Exhibit 3.
Mr Howard agreed in cross‑examination that he had not tried to contact Dale. He said he was more focussed on getting better. He accepted that he had not heard from Dale about the balance of $1,400 for the motorcycle. When it was suggested to him that he did not buy the motorcycle at all, Mr Howard said he did.

Evidence of Simon Christopher Grantham[18]

[18] ts 71 - ts 75.

Simon Christopher Grantham witnessed the accident. As he was driving northbound on Marmion Avenue on 6 October 2014 between 2.30 pm - 3.00 pm, he noticed the utility in the right lane a few cars in front of him with a mattress or bed tied onto the roof rack. He saw the utility slow down at a normal speed and go into the right turning lane to turn into the recycling centre.
He saw the brake lights of the utility go off and the front lift slightly as the driver accelerated to cross the southbound carriageway. Within about a second, he saw the utility brake very heavily and then an impact of something hitting the utility. He did not recognise what it was at first. All he saw was debris at high‑speed heading south along the carriageway.
Mr Grantham continued northbound up to the first point he could turn around, which was about a kilometre north. He turned around there and went back to the scene of the accident. When he got there, he could see what was left of the motorcycle up against the retaining wall by the recycling centre and a rider further down the road. He waited at the scene and gave his details to the police. He saw that the front end of the utility was damaged.
He confirmed that he saw the utility turn into the filter lane to turn right into the recycling centre. He was asked if at any time he saw the utility come to a halt, to a full stop. He said 'not a full stop no'. He said it slowed but did not fully stop. Once the brake lights went off, he saw the utility start to accelerate at normal speed and then, within a second, the brake lights came back on, and the front dived. Mr Grantham described it as braking very heavily.
In cross-examination, Mr Grantham confirmed that he was travelling behind the utility on Marmion Avenue when it went into the filter lane. Mr Grantham did not go into the filter lane. He kept driving straight ahead.
He was watching the utility as he thought the driver was sitting in the right lane for no reason. Then, as Mr Grantham was approaching the slip lane, he saw the utility indicate and turn into the slip lane to turn right. Mr Grantham saw the utility turning and (what he now knows was) the motorcycle hit the utility just after the point when he passed the intersection with the slip lane.
He saw the utility brake suddenly, an impact, the utility shake and then pieces of debris going southbound at high speed. He did not see the motorcycle before it hit the utility. He could not see any part of the southbound lane to the north of the utility from where he was.
It was suggested to Mr Grantham that it was possible the utility came to a complete halt, and he just did not observe that. He said 'unlikely, but possible'.

Evidence of Patrick Bernard Lyndon[19]

[19] ts 75 - ts 83.

Patrick Bernard Lyndon previously worked as an electrical manager in construction. He is now retired.
On the day of the accident, he had loaded up the utility and was driving it north on Marmion Avenue towards the recycling centre. He got to the turnoff to the recycling centre, he pulled into what he described as a setoff in the middle of the road before turning into the recycling centre. He pulled up on the dotted line waiting to see what was happening around him. He looked up to the left. He said there were cars some distance away. He calculated that he had plenty of time to cross the road at that point. He looked straight over in front of him to make sure that no one was coming out of the recycling centre, did a quick glance up to the left and then proceeded to take off. He said 'within an instant, I was hit, stopped'. He said he thought at that time that he had a flash of a motorcycle but it was difficult to recall exactly how it happened.
He said that at that point, as soon as he was hit, he did not understand what was happening but put the brakes on straight away. Immediately after that, something hit his windscreen directly in front of him. It did not smash the window but indented the window and cracked it all around in a circle and then went off to his right up the road somewhere. He said it must have taken a few seconds or more for him to gather that he had been in an accident.
Mr Lyndon said he had stopped his car. He had not moved very far at that stage, possibly about 2 m off the dotted line onto the roadway to proceed across the southbound carriageway. He could not recall seeing 'really anything until the flash bang'. He said he saw the body lying on the road some distance up. There were other people walking or running down that way from cars that had stopped. He then got out of his car to go and see how the person was.
When asked to recount his recollection of the accident in more detail, Mr Lyndon said that he stopped at the dotted line and looked up the road. He said the cars seemed to be at least half a kilometre up the hill. He noted he had enough time to get across the road. He could not see anything else or anyone else moving in front of the cars. He then proceeded to look straight ahead and then took off. He said the utility did not run very fast when he accelerated. It has a turbo charger on it and went very slow to start before the turbo charger kicked in.
Mr Lyndon identified the utility in a photograph shown to him,[20] and which shows significant damage to the front of the utility. Mr Lyndon also marked in red ink on an aerial photograph of the area around the entry to the recycling centre the position where he brought the utility to a halt before proceeding across into the recycling centre.[21] He has marked the centre of the slip lane just behind the dotted line of the intersection opposite the entrance to the recycling centre.
[20] Exhibit 4.
[21] Exhibit 5.
Mr Lyndon was asked, when he stopped in the position marked on exhibit 5 and looked to his left, if he saw a motorcycle. He said no. When asked how much time he thought passed between him stopping and looking and then moving off, Mr Lyndon said it would be a matter of seconds at most. He said between when he moved off and when the impact occurred was almost instantaneous. He did not see the motorcycle coming towards him. He caught a flash. He described it as 'like a flash, bang type thing'. He said it was impossible to tell what it was at that stage.
In cross-examination, when asked how far he could see when he looked to his left, up Marmion Avenue when he stopped to turn into the recycling centre, Mr Lyndon said probably a kilometre in all. He said the road slowly rises all the way up to the left to a hilltop, so there is good vision coming down the road. He confirmed that after looking left he looked in front of him for vehicles coming out of the recycling centre. He was asked 'and then you started to move off?', to which he responded 'well, I - I checked - you check left, check in front, check left again, go'.
It was suggested to Mr Lyndon that he started to move off before he checked, otherwise, he necessarily had to see the motorcycle, to which he responded, 'I can only say what I recall'. He confirmed that he did not see the motorcycle until the last minute when he was already moving and saw a flash out of the corner of his eye.
Mr Lyndon was questioned about the evidence he gave that he did not see the motorcycle when he looked to his left even though he had a kilometre view, and said he checked a second time. He said he did not have a view of the motorcycle at all. He did not see it.
He accepted that the motorcycle had to have been there because it hit the utility, but he did not see it. He agreed that the vehicles he did see were at least 500 m up the road. He said they were in both lanes. He did not recall seeing a vehicle towing a trailer 50 m from the intersection in the lane closest to the recycling centre travelling from north to south.
He did not accept that maybe he did not come to a complete halt. When asked how long he would say he was stationary for before he pulled out, Mr Lyndon said it would be a 'guesstimate' on his part. He said he had enough time to look up, look across make sure everything was clear then drive off. He was asked when he looked back to his left if he saw any vehicles. Mr Lyndon said only the ones that were coming down the hill that he saw which were still 'some 100s of metres away'. He did not see where the motorcycle came from. He said it was all detailed in the police report. No police report was adduced into evidence.

Evidence of David Richard Todd[22]

[22] ts 83 - ts 90.

David Richard Todd gave evidence that he was previously the owner of a Kawasaki motorcycle, registration number 1EB 315. He said he last saw the motorcycle about eight years ago from the time of giving his evidence when he left it at the side of the freeway. Mr Todd did not give evidence as to when this was. He said he could not give an exact date, but it was approximately eight years ago.
He said he had been having trouble with the motorcycle, it was starting, not starting, starting and stopping, being erratic, being more and more erratic. He said it got to the point where it would not start. It was past its best days. It died and he had to leave it at the side of the road. He was heading north on the inner or right side on the east side just south of the Karrinyup Road exit bridge. He left the bike on the freeway there and his girlfriend at the time picked him up. He said he took his house and bike key with him.
When he returned to pick up the motorcycle, it was not there. He called the police, and they told him to speak to the council to see if they had cleaned it up. He said he had to wait until the Monday to speak to both Main Roads and the local Shire council. He spoke to them at 9.00 am on the Monday morning. Neither of them knew anything about the motorcycle, and he then called the police and made a formal report. He did not give any evidence as to the date he made the report and no copy of the report was tendered into evidence.
Mr Todd was shown two photographs of the motorcycle[23] and confirmed that he recognised the motorcycle in the second photograph as his bike. He referred to the unique pattern which he bought and installed himself. He said he was very confident that the second photograph was of his motorcycle, but the first photograph showed just a burnt-out frame of a bike.

Evidence of Kellie Marie Pearse[24]

[23] Exhibit 6.

[24] ts 96 - ts 103.

Kellie Marie Pearse also witnessed the accident. She was travelling alone in her car heading south in the left-hand lane on Marmion Avenue on her way to pick up her two children. She stopped at the traffic lights. She was not sure of the street name. It was a very brief stop to let one vehicle in, as far as she could remember. There were no other vehicles on the road that she could recollect. As the lights changed and she took off, she remembers jumping because she got a fright as a motorcycle flew past her on the right-hand side. She said it was quite a flash past her window. It was quite loud.
She then saw a light brown coloured 4‑wheel drive sitting at the intersection waiting to cross Marmion Avenue to go into the recycling centre. She said:
… as the car that had been let in as the lights changed went through, that vehicle went to go, and the bike was at the car at that point. The bike braked at the very last second, and his back tyre came up and then basically there was a pop and things flew everywhere.
Ms Pearse said just before that happened it was like slow motion. She 'kind of predicted what was about to happen' and had started to pull off the road to dial 000. She was asked how far she was from the recycling centre entrance when the motorcycle passed her. She said it was just as she took off at the lights, within 10 ‑ 20 m. She had just come through the lights and started to accelerate and had not reached 80 km per hour yet, which was the speed limit.
Ms Pearse marked on an aerial photograph of Marmion Avenue,[25] with an X in red ink, where the motorcycle passed her. She was asked if she could estimate the amount of time that expired between the motorcycle passing her and her seeing the collision. She said it felt like it went in slow motion so it would be really difficult to estimate, but it felt like seconds to her. She said she was in shock.
[25] Exhibit 7.
In cross-examination, Ms Pearse was asked which lane she was travelling in. She said she was in the left-hand lane of the two lanes travelling south. When she stopped at the traffic lights, there was a vehicle that had been allowed in when the lights had stopped, but no other vehicles in front of her, only behind her. None of those passed her until she pulled off the road to dial 000. She did not recall seeing a vehicle towing a trailer.
Ms Pearse agreed when it was suggested to her that she was probably 400 ‑ 500 m from the intersection when the motorcycle went past her, though she said she was not very good with measurements. She watched the motorcycle go forward. The car that had come in at the lights was in front of her in the left‑hand lane. She agreed that the utility then started to pull out to cross. In response to questions about how far the motorcycle was from the utility when the utility started to pull out, Ms Pearse said:
… it's hard to say for the simple fact the bike was going particularly quickly, so it - and it just - like I said, it all felt slow motion, but, like, it happened in seconds. I would say the bike would have been two to three car lengths roughly maybe from - from him at that point.

She said the other car had not gone very far at all beyond the turnoff when the utility pulled out. There was nothing in front of the motorcycle. She did not remember seeing the motorcycle's brakes come on but remembered its back tyre popping up, which indicated to her that the rider had braked and tried to stop. Then she saw the motorcycle collide into the side of the utility.
Ms Pearse marked with an X on exhibit 7 in blue ink where the utility and the motorcycle collided. The marking is adjacent to the entrance to the recycling centre. Ms Pearse has marked the northbound carriageway. Though it is not controversial, I infer from her description of what she saw and other evidence that I accept, that the site of the collision was in the right‑hand lane of the southbound carriageway, opposite the entrance to the recycling centre.

Evidence of Francis Reginald Baulch[26]

[26] ts 104 - ts 107.

Francis Reginald Baulch is a truck driver. He also witnessed the accident. As he was coming out of the recycling centre to turn left onto Marmion Avenue, he looked to his right and saw a motorcycle which he described as 'flying'. His impression was that it was 'probably doing' 150 km per hour or 140 km per hour, though it is unclear what he based that estimate on. He said he looked at his offsider and said 'watch this'. By the time he had finished saying that, the motorcyclist had hit the front bonnet of the utility and 'took off'.
He estimated the utility was probably a metre into the intersection directly opposite where he and his offsider were in the truck. He did not see the motorcycle hit the front of the utility. He said he did not have time to after speaking to his offsider. All he saw was the rider go onto the bonnet and fly down the road probably 200 ‑ 250 yards. He said the motorcycle disintegrated. He was looking at the road and the frame of the motorcycle bounced on the road in front of him. He said all the scrap metal went on the front of his truck but there was no bike to be seen. He estimated the 'motor' (which I infer is a reference to the motorcycle) probably would have gone 'a good 70 ‑ 100 yards into a brick wall'.
Mr Baulch's offsider was in hysterics, so he stayed in the truck with him. The police came and Mr Baulch told them what he had seen.
In cross‑examination, Mr Baulch was asked what lane the motorcycle was in. He said in the right‑hand lane of the two lanes going south. When asked how far from the intersection the motorcyclist was when he first saw him, Mr Baulch said it would be well over 300 yards. He said he was overtaking the cars to his left-hand side as though they were stationary. He said, from memory, there were two or three cars in the left‑hand lane. He was asked if the motorcycle had its headlight on. He said 'had nothing on, didn't brake, didn't do anything, straight into the [utility]'. He was asked if the motorcyclist tried to brake and avoid the collision? He said no.
When Mr Baulch was asked how far from the intersection the motorcyclist was when the utility pulled in front of him, Mr Baulch said he honestly could not answer that. He said he was not sure but thought he would have been 'a good' 200 yards away when the utility pulled out. He could not remember what colour or what sort of car the utility was. He said it looked like a 4-wheel drive and had a mattress on it.
In re‑examination, Mr Baulch was asked how far the motorcycle was from the intersection when the utility started to move. He said 'it's just like me looking at you, "Look out for that". Seconds'.

Evidence of John Christopher Higgins[27]

[27] ts 109 - ts 112.

John Christopher Higgins also witnessed the accident. I will refer to him as John Higgins to distinguish between him and his son, Andrew Higgins, who also gave evidence.
John Higgins was driving his utility vehicle and towing a trailer in the left-hand lane of the south bound carriageway of Marmion Avenue. He could not say what speed he was going. He said it was quite a warm day. He had his window down and his arm out of the window. He observed the utility trying to turn into the recycling centre. He said it was so quick, the next thing he knew a motorcycle came past him. He pulled his arm in out of the window.
He said the motorcycle was going quite fast. He could not say what speed it was going. The motorcycle passed him and, before he knew it, the motorcycle had hit the utility. John Higgins thought the motorcycle was braking because he remembered it started to wobble slightly and then it hit the utility, the rider went over the top of the utility and then he was on the other side of the road further up. John Higgins was the first there. He drove up, got out, there was no response from the rider. Within 30 seconds another man came who seemed to know what he was doing and took over.
John Higgins said the utility 'was trying to nick out'. He said he was not 100% sure there was a bush at the intersection then, though he knows it is not there now because he lives near there.
In cross‑examination, John Higgins agreed that he was driving in the left‑hand lane of the two lanes heading south. He was towing a trailer and his son was in the vehicle with him. He did not know what make the utility was. It was a dual cab. He could not remember if it had a mattress on the top. When the utility pulled out into the carriageway, John Higgins was approximately 50 m away from it. There were no vehicles in front of his and nothing in front of the motorcycle. John Higgins' car was the first vehicle in the lane he was travelling in, and the motorcycle was the first vehicle in the other lane leading up to the entrance to the recycling centre.

Evidence of Andrew John Higgins[28]

[28] ts 112 - ts 115.

Andrew John Higgins was a passenger in the vehicle being driven by his father, John Higgins, and also witnessed the accident. I will refer to him as Andrew Higgins.
He and his father were travelling down Marmion Avenue heading south coming up towards the recycling centre. He said theirs was the first car before the motorcycle came past them. He said they were going at 80 km per hour or thereabouts when the motorcycle went past them. He said he did not know how fast the motorcycle was travelling, 'but well over the speed limit'.
Then the utility pulled out, the motorcyclist 'tried to put his brakes on, sort of wobbled, hit the tip of the [utility], and just sort of went straight over'. When Andrew Higgins was asked how fast the motorcycle was going, he said he did not know. He was asked if he was able to estimate how fast the motorcycle was going compared to his father's vehicle. He said it maybe seems faster when someone is on a motorcycle, and then agreed to a suggestion that it could have been 'pretty close' to twice as fast as he and his father were travelling.
When asked what happened to the rider of the motorcycle after he struck the utility, Andrew Higgins said 'so the bike sort of went one way into pretty much where the entrance of the tip is, and then the rider went probably about 20 m up the road'. He said he and his father (John Higgins) were the first people to get to the rider and then, he thinks, an off‑duty paramedic came and took over.
In cross-examination, Andrew Higgins was asked how far their vehicle was from the entrance to the recycling centre at the time the motorcycle went past them. He said probably about 50 m. He said the motorcycle was about 50 m away from the utility as the utility pulled out from the gap. He saw the motorcycle try to brake and then the rider ended up, he thinks, about 25 m or so further up the road.

Evidence of Michael Terrence Clune[29]

[29] ts 115 - ts 119.

Michael Terrence Clune did not see the accident. On 6 October 2014, he was turning left at traffic lights, which he estimated were about 500 m north of the recycling centre. He was waiting for traffic to turn left and saw a flash and someone on a motorcycle. He recalls saying to himself 'that guy's got a death wish'. Mr Clune turned left when it was free to turn. He looked down the road and saw debris and dust. He did not know how many cars his was in the line, whether he was third or fourth in line.
He did not go past the accident scene. He stopped and got out of his car, but did not go to the scene as there were other people there. He remembered police and a helicopter coming and seeing debris everywhere. From where he was, he could see a utility that had been smashed on the front and the motorcycle was a fair way away, and its rider further down the road.
He did not see any other motorcycles on Marmion Avenue other than the one that he saw 'flash' past him. Mr Clune marked an aerial photograph[30] with an X in red ink where he was when he saw the motorcycle 'flash' past him. The mark is at the intersection of Marmion Avenue and Aviator Boulevard, which according to the scale marked on the photograph is approximately one kilometre away from the entrance to the recycling centre.

Evidence of Valerie Wendy Lambert[31]

[30] Exhibit 8.

[31] ts 119 - ts 123.

Valerie Wendy Lambert witnessed the accident on 6 October 2014. She was travelling south on Marmion Avenue with her husband, Daren Lambert. She said it was a sunny day. All of a sudden a motorcycle came 'whizzing past'. She turned to her husband and said 'crickey, where's the police when you need them'. She said she looked at her speedometer. She remembers she was doing 80 km per hour.
The next thing she saw was the utility coming from the opposite carriageway of Marmion Avenue to the one they were on, waiting to turn into the recycling centre. She said the next thing the motorcycle just went across the road. Her husband, Daren, was a paramedic. He said to stop, to pull over. They pulled over. She said there were a couple of cars in front of them. Daren got out of the car and ran to the rider of the motorcycle, and she called an ambulance. She estimated the time between the motorcycle 'whizzing' past them and it colliding with the utility was a matter of seconds. She said that 'it was just absolutely speeding'. She said, 'it was a clear road he had, on the bike'.
In cross-examination, Ms Lambert was asked how far she was from where the utility turned out when the motorcycle went past her. She said she did not know. She was nearly at the start of the feeder lane where you turn left into the recycling centre. There were two or three cars in front of her closer to the entrance of the recycling centre. There was nothing in front of the motorcycle that she could remember.
Ms Lambert said that she could see the motorcycle had gone past her and then she could see the utility waiting to turn into the recycling centre and then it (the accident) just happened. She said she had clear vision right down the road.

Evidence of Parminder Bhatti[32]

[32] ts 125 - ts 128.

Parminder Bhatti was on Marmion Avenue shortly before and at the time of the accident. He was driving and looked in his rear-view mirror and saw 'a haze'. The next thing he saw that somebody was speeding past him on a motorcycle. He said it was just before Tamala Park (the recycling centre) on Marmion Avenue. Mr Bhatti marked on an aerial photograph[33] with an X where he was on the road when the motorcycle passed him. When asked what he observed when the motorcycle went past him, Mr Bhatti said 'a very fast pace'.
[33] Exhibit 10.
He said he continued to drive and, as he was coming up the ridge just before the recycling centre, he saw debris. Mr Bhatti did not see the accident. He pulled over to the side of the road to offer help. He said there was a motorcycle on the left‑hand side near the entrance to the recycling centre, and a man laying on the ground. Mr Bhatti called 000. He could not recall the colour of the motorcycle that went past him, just that it was a dark colour. He did not see any other motorcycles in front of him on Marmion Avenue.
When asked if he was able to estimate how much time went by between when the motorcycle went past him and when he got to the scene of the accident, Mr Bhatti said between 10 - 15 seconds.
In cross-examination, Mr Bhatti confirmed that when the motorcycle went past him on Marmion Avenue, he had just left the lights at Anchorage Drive.[34] He was accelerating from zero to the speed limit which was 80 km per hour. He had not yet got up to 80 km per hour at the time the motorcycle passed him.

Witness statement of Daren Lambert

[34] By reference to exhibit 10.

As referred to earlier in these reasons, Daren Lambert died on 30 April 2017. A witness statement signed by him dated 7 November 2014 was tendered under s 79C of the Evidence Act.[35] Though Daren Lambert's statement is admissible under s 79C, I must consider the weight to be given to that evidence, having regard to s 79D of the Evidence Act.
[35] Exhibit 9 (comprising handwritten signed statement of Daren Lambert and unsigned typed statement of Daren Lambert).
The handwritten statement of Daren Lambert is dated 7 November 2014 and witnessed by police officer Senior Constable Kim Traynor on that date. As such, whilst it was not made contemporaneously with the occurrence of the facts stated, it was made within a relatively short time of those events and Mr Lambert provides a detailed account of his observations in relation to the accident and events immediately before and after it. Amongst other things, Daren Lambert stated as follows.
On Monday, 6 October 2014 at about 2.45 pm Daren Lambert was travelling on Marmion Avenue in Clarkson with his wife, Valerie Lambert, on the way to a doctor's appointment in Currambine. They were travelling on the inside lane near the left kerb. He heard the sound of a high revving engine, which he recognised as a motorcycle due to the high pitch of the noise. He did not have time to look behind to where the noise was coming from, and the next thing, the motorcycle had gone past them in the outside lane at a great speed.
As the motorcycle was going past, Daren Lambert looked over to see at what speed his wife was travelling and he noticed the speedometer was reading 80 km per hour.
The motorcycle continued south at high speed and did not slow down at all after it went past them. At the time there were other cars ahead of them in the inside lane. Mr Lambert continued to watch the motorcycle which continued at speed. There was no change in the noise of the engine. It was constant.
Mr Lambert estimated the motorcycle was travelling well in excess of the speed limit, at a speed of at least 120 km per hour. He could see ahead of him and noticed the outside lane the motorcycle was in was completely clear. He continued to watch the motorcycle travel south when the next thing he saw was a big dust cloud like an explosion. He also heard the sound of the impact. He knew that it was the motorcycle. He could see what appeared to be a car and motorcycle parts. He did not see what the motorcycle had hit. Mr Lambert stated he would have been about 200 ‑ 250 m from the motorcycle when it crashed.[36]
[36] Whilst the typed statement (par 11) omits the unit of measurement, the corresponding unnumbered paragraph on page 2 of the handwritten signed statement states 'two hundred to two fifty metres'.
Mr Lambert continued towards the scene and noticed a white coloured utility with significant damage to the front and bonnet. His wife had pulled up into the slip lane to the recycling centre. Mr Lambert jumped out and ran towards the person he could see lying on the road about 75 feet[37] south of the utility.
[37] 'Feet' is used in par 13 of the typed statement, and in the corresponding unnumbered paragraph on page 2 of the handwritten signed statement of Daren Lambert.
Mr Lambert noticed a lot of debris all over the road. As he got to the person, he was laying on his back still wearing a crash helmet with his head positioned near the eastern kerb and his feet pointing across towards the ocean. Mr Lambert noticed that he had splits to the trouser legs of his jeans which were ripped from his ankles to his waist. He observed that he had multiple fractures and obvious deformity of his leg. Mr Lambert remained with him to maintain his airway and initiate first aid until the paramedics arrived, after which he was transported from the scene by helicopter.
Mr Lambert stated that the conditions at the time of the accident were fine. It was a sunny day, the roads were dry and the visibility was clear.

Report of Robert Davey

As referred to earlier in these reasons, a report written by Mr Robert Davey, motor vehicle accident consultant, dated 27 January 2020 was tendered by consent.[38] The report was prepared based on the instructions and documents provided to Mr Davey by the defendant's lawyers, as set out in his report, and his attendance at the scene of the accident on 22 September 2019. I note this is approaching five years since the time of the accident, though there is no suggestion, and no evidence before me, of any change to the layout of the road since the time of the accident and Mr Davey's attendance at the scene of the accident.
[38] Exhibit 1.
Mr Davey describes the layout and visibility at the scene of the accident in section 5 of his report. The scene of the accident is depicted in a near map image obtained and scaled using crash reconstruction software as set out in Mr Davey's report.[39] The image referred to is that reproduced earlier in these reasons at [8]. The general layout of the scene is described in [10] above.
[39] Mr Davey's report dated 27 January 2020, par 5.1.8.
Mr Davey states the traffic in that area is subject to a speed limit of 80 km per hour. Approaching the scene of the accident from the north (travelling southbound) the road is straight, following a crest, and descends gradually from approximately 550 m. There is a slight ascent just before reaching the scene of the accident. Approaching the scene from the south (travelling northbound), the road is straight and ascends towards the scene.
As to visibility,[40] Mr Davey reports that travelling northbound, just before turning right, across the southbound carriageway, the visibility towards the north is clear and unobstructed for over 500 m. However, while travelling within the northbound slip lane, any approaching southbound traffic is obscured by mature trees on the median strip, making it necessary to slow or stop before approaching the southbound carriageway. No evidence was adduced as to the presence or otherwise of trees at the time of the accident.[41]
[40] Mr Davey's report dated 27 January 2020, par 5.2.
[41] John Higgins speculated about whether the utility was 'trying to nick out', but was not sure if there was a bush on the median strip at the time of the accident (ts 110). There was no other evidence about the presence or otherwise of trees.
In relation to travelling northbound and southbound, Mr Davey reports that at the time of his attendance at the scene (22 September 2019), the eastern edge of the gap is visible from a distance of over 500 m. However, due to the trees on the median strip, northbound vehicles using the slip lane to turn right are not visible until they are within the gap and close to the southbound carriageway.
As to the area of impact, based on police markings made on the road surface, Mr Davey concludes that the utility came to rest with its front end approximately 2.5 m across the right‑hand lane of the southbound carriageway.
As to the speed at which the motorcycle was travelling, Mr Davey reports that many methods have been considered to ascertain the pre‑impact speed of the motorcycle, including momentum exchange, crash damage, rotation of the utility and the post impact displacement of the motorcycle and rider. However, Mr Davey has been unable to, and does not, reach a conclusion as to the speed at which the motorcycle was travelling before the collision.

In Mr Davey's opinion, the physical evidence at the scene is consistent with the following scenario:
1.The motorcycle was travelling south along Marmion Avenue in the right-hand lane when it collided with the front of the utility that had just commenced to move into the right-hand lane of the southbound carriageway from the gap in the median strip.
2.Based on photographs taken at the scene and a scale plan, the motorcycle came to rest approximately 40 m from impact and the rider 60 m. It was not possible to ascertain the pre‑impact speed of the motorcycle.
3.Whether the motorcycle would have been visible to Mr Lyndon before impact is a complex issue due to the presence of other vehicles approaching the scene from the north.[42]
[42] This is based on the statements provided to Mr Davey, as referred to in his report, and which he observes are ultimately for the court to assess and evaluate.
Mr Davey states the following opinions in response to the questions asked of him:
1.It is not possible to determine the pre-impact speed of the motorcycle with any accuracy. The post impact displacement of both the motorcycle and its rider is compromised by secondary impacts (a wall and the windscreen of the utility). There is insufficient information to conduct calculations based on the principles of linear or angular momentum or crush damage.
2.As to whether, had the motorcycle been travelling at the speed limit of 80 km per hour, it would have had sufficient time to take avoiding action:
(a)It is not possible to address that question objectively without knowing the approach speed of both vehicles. The post impact position of the utility indicates that the utility had moved into the right‑hand lane by approximately half its length before impact.
(b)Whether the motorcycle was travelling at or above the speed limit of 80 km per hour, there would have been minimal time available for the rider of the motorcycle to take avoiding action, given the distance from the utility entering the southbound carriageway to the point of impact was less than 2.5 m.
3.As to the sight lines afforded to both parties to the accident:
(a)When turning right into the recycling centre from the northbound carriageway, the visibility is clear for at least 500 m from the edge of the median, but not so in the slip lane.
(b)The same visibility is afforded to drivers travelling south. However, the presence of other road users travelling south complicates any opinion or observation as to the available visibility.

Vehicle examination report of Stuart Budd

An undated WA Police vehicle examination report prepared by vehicle investigator, Mr Stuart Douglas Budd, was tendered by consent.[43]
[43] Exhibit 11.
Mr Budd is a qualified heavy-duty mechanic and graded member of the Institute of Automotive Mechanical Engineers. He examined the motorcycle and the utility on 22 October 2014 at the AAAC Towing holding yard in Lansdale.

The utility

In relation to his inspection of the utility, amongst other matters, Mr Budd reports as follows:
1.There were two interior sun visors in the utility, both found in the raised position and a windscreen‑mounted interior rear-view mirror, found intact and in place.
2.Two exterior rear view mirrors, one to each front door were both found intact and in place.
3.The laminated windscreen with a tinted band across the top section was found to have been smashed, and the right front (driver's) door window was found intact and in the lowered position. All other door windows were found intact and in the raised position. Tint film was affixed to all side and rear windows.
4.There were two rails to the exterior roof, with household bedding attached. Household bedding was also attached to the well body.
5.The utility had sustained an impact to the front and damage as follows:
(a)the radiator was buckled and the radiator support panels were buckled and crushed rearwards;
(b)the front bumper was buckled and dislodged and located with the crash debris;
(c)the bonnet was also buckled with black rubber-like marks adhered;
(d)both front guards and chassis were buckled and the windscreen smashed;
(e)the right roof support 'A' pillar was buckled; and
(f)the engine components were smashed.
6.The headlight switch was found in the headlights off, low beam mode. Both headlight assemblies and the right headlight assembly globes were found to have been smashed in the crash. Power was detected at the terminal ends, the left headlight globe remained intact and illuminated when tested. All rear lighting illuminated when tested.
7.The horn was found to have been crushed in the crash. Power was detected at the terminal ends but the horn did not sound when tested.
8.All tyres were found with a serviceable tread depth. There were no lock up skid marks visible on any tyre tread surface.
9.The utility had a dual circuit, vacuum assisted hydraulic antilock (ABS) braking system with disc brakes to the front and drum brakes to the rear. It was not possible to test drive the vehicle due to crash damage. A static brake test was conducted with the utility raised from the ground from which it was concluded that the brakes were working and in a serviceable condition.

The motorcycle

In relation to his inspection of the motorcycle amongst other matters, Mr Budd reports as follows:
1.The motorcycle was a Kawasaki ZX900 motorcycle, registration number 1EB 315. It was green and black in colour. The engine number was ZX900CE048316 and there was no compliance plate fitted. No key was found with the motorcycle.
2.The right‑hand operated twist grip accelerator mechanism was smashed and severed. The transmission was found to be in fifth gear and the engine run/stop switch in the run position.
3.The headlight switch was found in the headlights on position and the headlight high/low beam switch was set to low beam.
4.The motorcycle had sustained all over damage in the crash. In addition to the damage to the accelerator mechanism already referred to:
(a)the fairing was smashed, the fairing support frame buckled, and the fork was buckled and severed at the front wheel;
(b)both steering forks were buckled and severed at the axle of the front wheel. The steering could still be turned fully from lock‑to‑lock despite the crash damage. The upper and lower support bearings were found serviceable with no sticking or binding evident;
(c)the front wheel rim was buckled and dislodged and the front tubeless radial tyre was dislodged from the alloy rim, which had allowed air to escape;
(d)the headlight assembly globes and instrument panel were smashed;
(e)there were scrape marks to the right side of the engine and the engine components were smashed;
(f)the fuel tank was buckled and the fuel tank and rider's seat were dislodged;
(g)the right handlebar mount was severed but remained connected by the wiring harness, though the wiring harness was severed at multiple places;
(j)the exhaust muffler was dislodged and the radiator buckled; and
(k)the battery was dislodged and had a low charge.
5.The headlight globe was found to have been smashed in the crash with bluing evident, which would indicate that the headlight was on at the time of the accident. The headlight switch was found in the headlights on position and the headlight dipper switch found in low beam mode.
6.One of the taillight globes was found with a broken filament. Due to the crash damage to the electrical wiring, the remaining intact globes were tested direct. Both brake light globes and the other taillight globe illuminated when tested. All front and rear indicator light assemblies were dislodged and missing, found to be caused by the crash. The horn sounded when tested.
7.Both tyres were in a serviceable tread depth condition. There were no lock up skid marks visible to either tyre tread surface, and no run on marks visible to the side walls of the deflated front tyre to indicate the tyre was driven on while being deflated.
8.The motorcycle was unable to be road tested and a static brake test was unable to be conducted on the front brakes due to the crash damage. The front brake pads and callipers were inspected and found to be serviceable. A static brake test was conducted on the rear wheel brake and the brake was operated, locking the rear wheel.
None of the photographs of the motorcycle annexed to the vehicle examination report show the area where the identification plate or VIN are located on the motorcycle. That is not addressed in the report.
In an email from Stuart Budd to Senior Constable Kim Traynor dated 22 October 2014,[44] Mr Budd informed Senior Constable Traynor that the requested examinations of the utility and the motorcycle had been completed. In addition, he stated:
As you have mentioned the VIN number on the Kawasaki has been partially removed and there is not a compliance plate fitted.
The number of the fitted engine ZX900CE048316 is the same as the engine number listed for a Kawasaki motorcycle rego 1EB 315.
[44] Exhibit 12.

Relevant legal principles - duty of care and contributory negligence

The Court of Appeal considered the general principles concerning liability for harm caused by the fault of road users, and in relation to contributory negligence, in Wreford v Lyle [No 3].[45] The statutory framework is to be found in the Civil Liability Act 2002 (WA) and the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA).
[45] Wreford v Lyle [No 3] [2021] WASCA 20 [18] - [22] (Quinlan CJ, Murphy & Pritchard JJA).
Section 5B of the Civil Liability Act modifies the common law as to breach of duty of care by articulating situations in which a person is not liable for harm.[46] It does not modify or supplant the common law principles which determine whether a duty of care exists or not.[47] It provides:
[46] CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117 [77]; Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [70] - [83] (Buss J).
[47] Subsection 5B(2) restates the common law position as set out in The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48 (Mason J). See Department of Housing and Works v Smith [No 2] [77]; Rankilor v City of South Perth [2016] WASCA 29 [43].
5BGeneral principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Section 5B requires identification of what precautions a reasonable person in the position of the defendant would have taken by way of response to a foreseeable, not insignificant, risk. This is to be determined objectively, not with the benefit of hindsight.[48]
[48] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70] (Gummow J); Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 [31], [40] (French CJ, Gummow, Hayne, Heydon & Crennan JJ); CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [78]; Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [12], [33], [120] (Buss P & Vaughan JA); [116] (Murphy JA)).
Section 4 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act provides that, where a court is satisfied that a plaintiff is guilty of contributory negligence, it shall reduce the damages recoverable 'to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff'.
Section 5K of the Civil Liability Act prescribes how contributory negligence is to be determined:
5KStandard of contributory negligence
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose -
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
The applicable principles referred to in s 5K(1) are those found in s 5B of the Civil Liability Act, as set out above. Though s 5K provides that the standard of care for contributory negligence is the same as it is for negligence itself,[49] it follows that contributory negligence of a plaintiff is to be assessed against the risk of harm to himself rather than the risk of harm to others.[50]
[49] Wreford v Lyle [No 3] [22] (Judgment of the Court); Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 [170] ‑ [172] (Mitchell JA).
[50] Wreford [22], referring to Gordon v Truong; Truong v Gordon [2014] NSWCA 97; (2014) 66 MVR 241 [15] ‑ [18].
As stated by Buss JA (as his Honour then was) in O'Connor v Insurance Commission of Western Australia:[51]
61An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. See Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65, 68.
62A finding on a question of apportionment, as between a defendant who has been found to be negligent and a plaintiff who has been found guilty of contributory negligence, is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197, 201. …
[51] O'Connor v Insurance Commission of Western Australia [2016] WASCA 95 [61] - [62] (Buss JA, McLure P & Mazza JA agreeing).
In Apostolic Church Australia Ltd v Dixon,[52] the Court of Appeal explained that:
70 The making of a finding of contributory negligence involves a comparison of both the culpability, that is, of the degree of departure from the standard of care of the reasonable person, and the relevant importance of the acts in causing the damage, of the parties. It is the 'whole conduct' of each party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron and Steel Pty Ltd.
71 In Astley v Austrust Ltd, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases the nature of that duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.
(citations omitted)
[52] Apostolic Church Australia Ltd v Dixon [2018] WASCA 146 [70] - [71] (Murphy, Beech & Pritchard JJA).
The onus of establishing contributory negligence is on the defendant and the test is an objective one. The statutory standard of care is by reference to a 'reasonable person in the position of that person'.[53] As has been noted, such is to be determined on the basis of what that person knew or ought to have known at the time.
[53] Town of Port Hedland v Reece William Hodder by Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212; (2012) 43 WAR 383 [294], [295], [298] and [301] (McLure JA).

Did Mr Lyndon breach his duty of care to Mr Howard by his manner of driving?

It is uncontroversial that, as a driver of a vehicle, Mr Lyndon owed other road users, including Mr Howard, a duty of care. Ordinarily, a road user will owe a duty to other road users to take reasonable care and drive in a manner that is safe in all the circumstances so as not to cause injury or damage to other road users. Relevantly, a driver of a vehicle owes a duty to keep a proper look out and to check for oncoming vehicles to ensure, before entering another carriageway to turn across it, that it is safe to do so, so as to avoid a risk of harm to other road users.
For the reasons that follow, I find that Mr Lyndon breached his duty of care to Mr Howard, by failing to keep a proper lookout and pulling the utility out from the median strip into the path of the motorcycle Mr Howard was riding.
Initially Mr Lyndon's evidence was that he pulled into the gap in the median strip to turn right into the recycling centre, he stopped, looked left, looked straight ahead and then went. Later in his evidence, he said he looked left, looked ahead, looked again and then went. However, the weight of the evidence leads me to find that the motorcycle Mr Howard was riding was there to be seen and, had Mr Lyndon looked to his left before pulling out and had looked left a second time, as he suggested he did, he would have seen the motorcycle and should have waited for it to pass before pulling out into the carriageway to make the right turn.
It is not disputed, and I find, that from the position Mr Lyndon was in before he pulled out from the gap in the median strip there was a long, uninterrupted view to the left of the carriageway looking towards the north. Based on the evidence of Mr Howard, Mr Lyndon, Valerie Lambert and her late husband, Daren Lambert, and the report of Robert Davey, which I accept, I find that it was fine and sunny at the time of the accident and Mr Lyndon would have had a clear view of the carriageway to his left for at least 500 m. This is also evident from photograph 17 in Mr Davey's report[54] and the aerial photograph marked by Mr Lyndon, each reproduced below.[55] I also find that, had Mr Lyndon come to a stop and looked left before setting off to make the turn into the recycling centre, Mr Lyndon would have seen the motorcycle.
[54] Exhibit 1, page 16 of 18 of the report of Robert Davey.
[55] Exhibit 5.

I have found that Mr Howard contributed to his loss and damage by driving at excessive speed. However, I find that Mr Lyndon bore the greater responsibility for the harm caused to Mr Howard, particularly having regard to the greater capacity for damage from the utility and Mr Lyndon's significant obligation to keep a proper lookout. Ultimately, his failure to do so and his conduct in pulling out onto the carriageway, without first ensuring there was no oncoming traffic and that it was safe to do so, was the primary cause of the collision.
Based on the expert evidence of Mr Davey, which I accept, there would have been minimal time for Mr Howard to take action to avoid the collision whether the motorcycle was travelling at or in excess of 80 km per hour. However, he still owed a duty to drive at an appropriate speed, to have regard to other road users and be alert to potential hazards.
No evidence was adduced at trial as to the extent to which excess speed caused or contributed to the injury or loss suffered by Mr Howard as a result of the accident. There is no expert or other evidence from which I am able to determine with precision what difference it would have made whether the motorcycle was travelling at 80 km per hour or at higher speeds. However, it is notorious that the greater the speed, the greater the force of impact, which generally increases the risk of more serious injury resulting from a collision.
In the circumstances, in my view, the appropriate apportionment of liability is 70% to Mr Lyndon and 30% to Mr Howard.

Were Mr Howard's injuries and loss suffered in the course of criminal conduct by him so as to constitute a defence to the action pursuant to s 5(1) of the Offenders (Legal Action) Act 2000?

Mr Lyndon relies on s 5 of the Offenders Act as a defence to the action. The Offenders Act is a very short Act, comprising just five sections. It is described as '[a]n Act to prevent offenders and others from taking legal action in respect of harm suffered in the course of committing an offence'.

Relevant provisions of the Offenders (Legal Action) Act 2000

The only substantive provision is s 5 of the Offenders Act, which provides:
5.Actions in respect of harm suffered by offenders barred
(1)It is a defence to an action in respect of injury or loss suffered by a person (the offender) for the defendant to show that the injury or loss was suffered in the course of criminal conduct by the offender.
(2)Subsection (1) does not apply if the person bringing the action can show that the injury or loss suffered by the offender -
(a)arose from an unlawful act that was intended to result in the offender suffering injury or loss; or
(b)arose from circumstances -
(i)which were entirely separate from those to which the offender was exposed by reason of being engaged in criminal conduct; and
(ii)to which the offender was exposed in common with other persons who were not engaged in criminal conduct.
(3)This section has effect despite anything in section 5 of the Occupiers' Liability Act 1985.
'Action' is defined by s 3(1) of the Offenders Act as 'an action in tort, an action of a similar kind to an action in tort, or an action under the Fatal Accidents Act 1959' (WA).
'Criminal conduct' is defined by s 3(1) of the Offenders Act to mean:
(a)the commission of an offence; or
(b)anything done or omitted to be done for the purpose of the commission of an offence, including -
(i)planning it;
(ii)preparing for it;
(iii)travelling to or from the place where it is committed;
(iv)concealing it;
(v)disposing of anything used in the course of it or obtained from it.
'Offence' is relevantly defined in s 3(2)(a):
an indictable offence against a written law or a law of another State, a Territory or the Commonwealth; …
The meaning of the expression 'criminal conduct' as defined in s 3(1) of the Offenders Act is very wide. It includes not only the commission of an offence, but anything done or omitted to be done preparatory to or associated with the commission of an offence or, once an offence has been committed, the concealing of the offence.[64]
[64]Austin v The Electricity Networks Corporation [2014] WASCA 89 [26] (Newnes JA, Pullin & Murphy JJ agreeing).
I agree with, and respectfully adopt, the reasoning expressed by Herron DCJ in Quine v Keerasawat,[65] and his Honour's views (at [128]) as to the meaning of 'in the course of criminal conduct' in s 5(1) of the Offenders Act:
… s 5(1) does not require that the injury or loss suffered by a person be caused by the criminal conduct of that person. It is only necessary that the injury or loss be suffered in the course of the criminal conduct by the person. That is, there only need be a temporal connection, not a causal connection to the criminal conduct. It is not necessary that the injury or loss which is suffered arise from the criminal conduct. In my view, the expression 'in the course of' should be construed broadly to cover any injury or loss suffered by the person injured during the criminal conduct or while the criminal conduct is occurring.
[65] Quine v Keerasawat [2014] WADC 150 [128] - [133].
The question I must determine in this case is whether, at the time of the accident (when Mr Howard suffered the injuries to which his claim relates), he was in the course of committing an indictable offence, or (relevantly) doing something for the purpose of or associated with committing an indictable offence.
Indictable offence is not defined in the Offenders Act. I refer to and respectfully adopt (without repeating) Herron DCJ's reasons in Quine v Keerasawat[66] as to the meaning of an indictable offence.[67]

The alleged criminal conduct

[66] Quine v Keerasawat [119] - [125].

[67] Which reasons, though they relate to an offence under s 378 of the Criminal Code, apply in this case in so far as the meaning of indictable offence is concerned.

It is alleged on behalf of Mr Lyndon that Mr Howard is not entitled to damages because the injury and loss claimed was suffered in the course of criminal conduct, because the motorcycle was stolen. Specifically, it is alleged that:
1.Mr Howard unlawfully assumed control of the motorcycle (by driving and using it) without the consent of its owner, contrary to s 371A of the Criminal Code;
2.Mr Howard took possession of the motorcycle knowing it was stolen, contrary to s 414 of the Criminal Code; or
3.Mr Howard was in possession of the motorcycle, being property reasonably suspected to have been stolen, contrary to s 417 of the Criminal Code.
Each of the offences alleged is an indictable offence.

The terms of the relevant sections of the Criminal Code

Section 371A

Section 371A of the Criminal Code provides:
371AUsing etc. motor vehicle without consent is stealing
(1)A person who unlawfully -
(a)uses a motor vehicle; or
(b)takes a motor vehicle for the purposes of using it; or
(c)drives or otherwise assumes control of a motor vehicle,
without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle.
(2)This section has effect in addition to section 371 and does not prevent section 371 from applying to motor vehicles.
The term 'steal' is defined in s 371 of the Criminal Code, and includes, relevantly:
(1)A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.
(2)A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with …
(a)An intent to permanently deprive the owner of the thing or property of it or any part of it;
…
(6)The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
(7)In this section, property includes any description of real and personal property …
It was submitted that Mr Howard contravened s 371A because he did not have the consent of the owner of the motorcycle to use or otherwise assume control of it, and that this state of affairs was continuing at the time of the accident.

Section 414

Section 414 of the Criminal Code provides, relevantly:
414Receiving stolen property etc.
Any person who receives any property which has been obtained by means of any act constituting an indictable offence … knowing the same to have been so obtained, is guilty of a crime.
Alternative offence: s. 378, 409 or 417.
The offender is liable -
(a)if the court is satisfied as to the act by means of which the property was obtained, to the penalty provided for the offence constituted by that act, or to imprisonment for 14 years, whichever is the lesser;
(b)otherwise, to imprisonment for 14 years.
For the purpose of proving the receiving of anything, it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession, or has aided in concealing it or disposing of it.
…
The elements of the offence under s 414 of the Criminal Code are:
1.the property the subject of the alleged offence has been received (by the accused);
2.the property was obtained by means of an act constituting an indictable offence; and
3.the person receiving the property knew the property to have been so obtained at the time they received it.[68]
[68] Ollerton v The Queen (1989) 40 A Crim R 133, 140 (Brinsden, Kennedy & Nicholson JJ).
Relevantly, to be guilty of an offence under s 414, Mr Howard must be shown to have received property (the motorcycle) known to him, at the time of receiving it, to be stolen property. There must have been some act of receiving, which would include him having the motorcycle in his possession. That is, having actual physical possession or custody of it, or the ability to exercise control over it. The motorcycle must be identified as having been stolen,[69] and Mr Howard must have known at the time of receiving it that it was stolen. Mere suspicion that the goods may have been stolen is not enough.[70]
[69] Moodie v The Queen (1952) 54 WALR 80 (Walker J, Jackson & Virtue JJ agreeing).
[70] Sharlandv The Queen (Unreported, WASC, Library No 7494, 3 February 1989) (Walsh J, Kennedy & Rowland JJ agreeing); Weston v The Queen (Unreported, WASCA, Library No 920099, 27 February 1992), 1 ‑ 4 (Franklyn J).
For the purpose of s 414, the test for knowledge is subjective, not objective. That is, what was known to the person accused of the offence, in this case Mr Howard? Did he know, at the time of receiving the motorcycle that it was stolen?

Section 417

Section 417 of the Criminal Code provides:
417Possessing stolen or unlawfully obtained property
(1)A person who is in possession of any thing capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained is guilty of a crime and is liable, if no other punishment is provided under section 417A, to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.
(2)It is a defence to a charge under subsection (1) to prove that at the time the accused was allegedly in possession of the thing, the accused had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.
The elements of the offence under s 417 of the Criminal Code are:
1.the accused was in possession of a thing (money or other property);
2.the thing was capable of being stolen; and
3.the thing was reasonably suspected to be stolen or otherwise unlawfully obtained.[71]
[71] Le v Feakes [2018] WASC 331 [30] (Hall J).
Relevantly, to be guilty of an offence under s 417, Mr Howard must be shown to have been in possession of a thing capable of being stolen (in this case, the motorcycle), which was reasonably suspected of being stolen (or unlawfully obtained). It is not necessary to prove the motorcycle was actually stolen (or unlawfully obtained). For this offence, as the words of the section indicate, a reasonable suspicion that the property is stolen or unlawfully obtained is sufficient, and the test is an objective one.[72] In this case, it is for the court to reach an objective conclusion from the evidence adduced as to whether the motorcycle was reasonably suspected of being stolen (or unlawfully obtained).
[72] Le v Feakes [34] (Hall J). See also Hoskins v Ramsden [No 2] [2009] WASCA 90 [29] (Wheelan JA, Pullin & Buss JJA agreeing), referring to McLennan v Campbell [2003] WASCA 145 [27] (Pullin J).
A suspicion is a 'state of conjecture or surmise where proof is lacking. It is more than an idle wondering; it is a positive feeling of actual apprehension or mistrust amounting to a slight opinion but without sufficient evidence'.[73] The suspicion must be based on reasonable grounds. That is, on facts sufficient to induce that state of mind in a reasonable person.[74]
[73] Le [35] (Hall J) referring to George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115; Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, 303 (Kitto J).
[74] Le [35] (Hall J). See also Carrati v Potts [2015] WASC 86 [45] ‑ [46] (Pritchard J).
Under s 417(2) of the Criminal Code, a person accused of an offence under s 417(1) may, in their defence, prove that they had no reasonable grounds for suspecting that the property was stolen or unlawfully obtained. The onus of proving that (on the balance of probabilities) is on the person seeking to establish the defence.[75]
[75] Le [31] - [32] (Hall J), referring to Whittle v Brown [2011] WASC 143 [63]. See also Hoskins v Ramsden [No 2] [12] (Wheelan JA, Pullin & Buss JJA agreeing).
No such positive defence has been pleaded or asserted by Mr Howard in this case.

Onus and standard of proof

Mr Howard was not charged with any of the offences alleged and, it follows, has not been convicted of any of those offences. Mr Lyndon, as the party seeking to establish the defence under s 5(1) of the Offenders Act, bears the onus of proving that Mr Howard was injured during the course of criminal conduct of the kind alleged.
It is not in issue that the standard of proof is the balance of probabilities, having regard to the principles described in Briginshaw v Briginshaw,[76] and as explained by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:[77]
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
[76] Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
[77] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 170 - 171 (Mason CJ, Brennan, Deane & Gaudron JJ).
As stated by Herron DCJ in Quine v Keerasawat,[78] relevantly, the principle in Briginshaw v Briginshaw requires that, when in a civil proceeding a question arises as to whether a crime has been committed, the standard of proof is the same as upon other civil issues, but weight is given to the presumption of innocence and exactness of proof is expected.
[78] Quine [66]. See also [64] - [65], [67] - [70], and the authorities referred to.
Mr Lyndon must prove on the balance of probabilities that Mr Howard was in the course of committing (or doing an act preparatory to or for the purpose of concealing) at least one of the offences alleged. In deciding whether Mr Howard committed any of those offences, I should feel an actual persuasion of its occurrence, and I should not reach such a conclusion without the exercise of caution, and unless the evidence survives careful scrutiny and appears precise and not loose and inexact.[79]
[79] Briginshaw v Briginshaw (361) - (363), (368) (Dixon J).
Further, I should not draw an inference adverse to Mr Howard unless I accept that the circumstances give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, that he committed a criminal offence.[80]

Section 24 of the Criminal Code

[80] See Quine [67] - [70], [79] - [82] and the authorities referred to.

An issue was raised during the trial as to whether s 24 of the Criminal Code applies to absolve Mr Howard of criminal responsibility in relation to the alleged criminal conduct. However, though counsel for Mr Howard responded to the submissions made by senior counsel for Mr Lyndon in relation to s 24 of the Criminal Code, no such positive defence has been pleaded or asserted by Mr Howard.
Section 24 of the Criminal Code provides, in effect, that if a person acts under an honest and reasonable but mistaken belief in the existence of any state of things, they are not criminally responsible for the act to any greater extent than if the real state of things had been such as they believed to exist.
The mistake must be one of fact, not law. As to 'the real state of things', that is the state of things relating to the elements of the offence in question, not the state of things as to whether the offence exists or whether the conduct constituted by those elements is an offence.[81]
[81] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 494 [10], [11].
I refer to and respectfully adopt Tottle J's summary in Whelan v Kallane[82] of the nature of the defence under s 24 of the Criminal Code, the applicable principles and relevant authority, including (at [16] ‑ [17]):
16The defence involves both objective and subjective considerations. The objective reasonableness of an accused's belief is assessed by reference to the subjective circumstances in which the accused was placed, including the accused's personal attributes and information available to him or her at the relevant time. Whether a mistake is honest and reasonable is a question of fact. Assessment of the reasonableness of a belief requires attention to the protective policies of the Act. The assessment is not made with the benefit of hindsight
17In Aubertin v The State of Western Australia, McLure JA, with whom Roberts-Smith and Buss JJA agreed, stated at [43]:
For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element) … The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself.
(footnotes and citations omitted).
[82] Whelan v Kallane [2021] WASC 74 [15] - [18].

It follows that in considering any defence under s 24, what is reasonable would depend on what a reasonable person in Mr Howard's position, with his age, intelligence, education and background, would consider to be reasonable in the circumstances he was in at the time.[83]
[83] See Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [42] - [43] (McLure JA).
It was submitted on behalf of Mr Lyndon that Mr Howard would have to satisfy the court that he held an honest and reasonable but mistaken belief that the motorcycle was not stolen or that he was lawfully entitled to use it. In a criminal case, there is no onus on an accused person to prove his excuse from criminal responsibility by reason of any mistake of fact which may have existed.[84] The onus is on the prosecution to prove that the accused either did not have an honest belief of the existence of the state of things, or that the accused's belief was not reasonable.
[84] See for example Johnson v The State of Western Australia [2009] WASCA 71; (2009) 40 WAR 116 [73] (Owen & Miller JJA, Buss JA agreeing).
As noted above, though counsel for Mr Howard responded to submissions made by senior counsel for Mr Lyndon in relation to s 24 of the Criminal Code, no positive defence has been pleaded or asserted by Mr Howard. As such, in my view, even if the position were different in a civil context, there is no onus on Mr Howard to prove that he held an honest and reasonable but mistaken belief that the motorcycle was not stolen, or that he was lawfully entitled to use it.
Rather, it is Mr Lyndon who seeks to rely on the defence under s 5 of the Offenders Act, and he who bears the onus of establishing that Mr Howard was committing an indictable offence (as pleaded) at the time of the accident.
In any event, for the reasons that follow, Mr Lyndon has not proved to the required standard that Mr Howard suffered the injuries and loss the subject of his claim in the course of committing any of the offences alleged.

Was Mr Howard engaged in criminal conduct at the time of the accident?

I am not persuaded to the requisite standard on the evidence adduced that Mr Howard was in the course of criminal conduct at the time of the accident, when he suffered the injury and loss claimed. I am unable to conclude on the evidence before me, either directly or by the drawing of any reasonable or definite inference, that Mr Howard committed any of the offences alleged.
It was submitted in opening on behalf of Mr Lyndon, in effect, that Mr Howard either stole the motorcycle or knew or ought to have known it was stolen.
To establish the alleged offences under s 371A and s 414 of the Criminal Code, the motorcycle must be proven to be stolen.
I accept the evidence of David Todd that he owned the motorcycle[85] and that he left it on the side of the Mitchell Freeway at some time before Mr Howard took possession of it on 4 October 2014. I also find that the motorcycle had been stolen at some time after Mr Todd left it on the side of the freeway. It is not clear on the evidence adduced whether that was on about the date pleaded of 19 September 2014, or at some other time before the accident. However, I am not satisfied to the required standard that Mr Howard stole the motorcycle or that he knew it was stolen.
[85] This is supported by the identifying information relating to the motorcycle in exhibit 11 and exhibit 12.
It was submitted on behalf of Mr Lyndon that I should not accept Mr Howard's evidence because he lied about riding the motorcycle at the speed limit of 80 km per hour contrary to the evidence of the other witnesses. Though I do not accept Mr Howard's evidence that he was riding at the speed limit of 80 km per hour, it does not automatically follow that he is lying and that I should not accept his evidence as to whether or not he knew the motorcycle was stolen. I may reject some of his evidence and accept other parts of his evidence.
As set out earlier in these reasons, when it was suggested to Mr Howard in cross‑examination that he stole the motorcycle, or knew it was stolen, he was emphatic in his evidence that he did not steal the motorcycle and that he did not think it was stolen. He knew it was unregistered but believed it was owned by the person he bought it from.
Knowledge is of course a state of mind and may be inferred from the surrounding circumstances. However, I do not find that the circumstances are such as to make it so obvious or likely that the motorcycle was stolen and that Mr Howard must have known that to be the case, or that could be the only reasonable conclusion in the circumstances.
As to the alleged offence under s 417 of the Criminal Code, I find that Mr Howard was in possession of the motorcycle, which was a thing capable of being stolen. As has been noted, it is not necessary for an offence under s 417 to prove that the motorcycle was actually stolen or that Mr Howard knew that it was. It is for the court to determine objectively on the evidence adduced whether, at the time the alleged offence was committed, there was a reasonable suspicion that the motorcycle was stolen. I am not satisfied on the evidence adduced that the facts are sufficient to have induced a suspicion based on reasonable grounds, that at the time Mr Howard was in possession of the motorcycle, the motorcycle was stolen.
Mr Lyndon has not proved all of the elements of the alleged offences under s 371A, s 414 or s 417 of the Criminal Code to the required standard.
It follows that he has not proved that Mr Howard suffered the injuries and loss the subject of his claim in the course of criminal conduct. As such, the defence under s 5 of the Offenders Act is not made out and must fail.

Conclusion and orders

For the reasons outlined, Mr Lyndon is liable in negligence to Mr Howard for the loss and damage he has suffered as a result of the accident.
Mr Howard contributed to the loss and damage suffered by driving at excessive speed.
The agreed damages of $950,000 will be reduced by 30% to reflect my finding of contributory negligence and apportionment of liability of 70% to Mr Lyndon and 30% to Mr Howard.
Judgment will be entered in favour of Mr Howard in the amount of $665,000 together with any amounts payable to Medicare or Centrelink and interest, if applicable.
I will hear from the parties as to the amount for which judgment is to be entered, the final form of orders and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EL
Associate to the Judge
25 AUGUST 2023