Joyce v Anderson - [2020] WASCA 48

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JOYCE -v- ANDERSON [2020] WASCA 48
CORAM:   MITCHELL JA
BEECH JA
VAUGHAN JA

HEARD:   10 MARCH 2020
DELIVERED          :   8 APRIL 2020
FILE NO/S:   CACV 103 of 2019
BETWEEN:   CLARA LOUISE JOYCE
Appellant
AND
GILLIAN MARGARET ANDERSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
Citation: ANDERSON -v- JOYCE [2019] WADC 121
File Number            :   CIV 359 of 2016

Catchwords:

Appeal - Where deceased cyclist killed in collision with motor vehicle driven by appellant - Where appellant's liability under the Fatal Accidents Act 1959 is admitted - Whether trial judge erred in finding that death was not caused by the contributory negligence of the deceased

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5K

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M D Cuerden SC and D M G Burton
Respondent	:	T Lampropoulos SC and B G Bradley

Solicitors:

Appellant	:	SRB Legal
Respondent	:	Bradley Bayly Legal

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

Abalos v Australian Postal Commission 1990] HCA 47; (1990) 171 CLR 167
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301
Ayre v Swan [2019] NSWCA 202
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Brett v Rees [2009] WASCA 159
Child and Adolescent Health Service v Mabior [2019] WASCA 151
Dearman v Dearman (1908) 7 CLR 549
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
G v O [2018] WASCA 211; (2018) 53 WAR 393
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241
Gribisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Kiriwellage v Best & Less Pty Ltd [2013] VSCA 355
Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572
Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257
Public Transport Commission (NSW) v Perry [1977] HCA 32; (1977) 137 CLR 107
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Sherrard v Jacob [1965] NI 151
Sibley v Kais (1967) 118 CLR 424
Smart v Power [2019] WASCA 106
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Warren v Coombes (1979) 142 CLR 531
Wensink v Marshall [2010] WASCA 117; (2010) 56 MVR 20

Contents

MITCHELL JA:

Introduction

Facts found by the trial judge

Circumstances of the accident

Deceased's statements as to the circumstances of the accident

Hospital notes

Police statement

Mr Maddison's estimates of speed

Trial judge's approach

Identification of issue raised by the pleadings

Summary of appellant's trial submissions

Rejection of appellant's case that the deceased was travelling at 50 km/h

Finding as to the speed at which the deceased was travelling

Whether the deceased's manner of riding was negligent

Causation

Orders

Ground 1: Failure to consider the evidence as a whole

Appellant's onus to prove the deceased was travelling at 50 km/h

Reference to the notes of 13, rather than 12, May 2013

References to eye witness evidence

Ground 2: Adequacy of reasons

Ground 3: Wrong findings as to Dr Murphy's notes

Ground 4: Findings as to the reliability of the deceased's estimate

Grounds 5 and 6: Findings as to the deceased's actual speed

Reference to 15 km/h as a 'speed which could reasonably be achieved'

Appellate review of factual findings

Evidence of Mr Maddison and Ms Staszewski

Use of scale plans to measure distance

Absence of reference to estimates of distance and time in primary decision

Deceased's estimate of speed

Trial judge's finding not 'glaringly improbable' or 'contrary to compelling inferences'

Error not established in any event

Procedural fairness

Conclusion as to grounds 5 and 6

Ground 6A: Deceased's location when the appellant entered intersection

Ground 7: Wrongful exclusion of evidence

Ground 8: Finding as to contributory negligence

Statutory provisions

Appellant's submissions

Disposition

Ground 9: Causation

Orders

BEECH & VAUGHAN JJA:

Agreement with and adoption of part of Mitchell JA's reasons

Ground 6: Challenge to finding that travelling at approximately 15 km per hour

The nature of the appellant's challenge to the factual finding

The evidence relied on by the appellant

The primary judge's reasoning

Analysis and conclusion

The remaining grounds of appeal

MITCHELL JA:

Introduction

On 23 May 2013, Roger Norman Hill (the deceased) tragically died from injuries he sustained when, at about 3.00 pm on 12 May 2013, a bicycle he was riding collided with a car being driven by the appellant. The collision occurred at the intersection of Eric Street and Broome Street in Cottesloe, which is controlled by a roundabout. Eric Street runs in an east-west direction, while Broome Street runs in a north-south direction.
Just prior to the collision, the deceased was riding his bicycle along Broome Street in a northerly direction, approaching the intersection from the south. He intended to continue along Broome Street after passing through the intersection. The appellant was driving along Eric Street in an easterly direction, approaching the intersection from the west. She intended to continue along Eric Street after passing through the intersection. A give way sign at the entrance to the intersection required the appellant to give way to the deceased. Also approaching the intersection along Eric Street from the east was a car driven by Graham Maddison, with Margaret Ann Staszewski in the front passenger seat.
It is common ground that, after almost coming to a stop at the intersection, the appellant, who had not seen the deceased's bicycle, entered the intersection, blocking the deceased's path. The deceased rode into the driver's side of the appellant's car just in front of the driver's door. He went up onto the bonnet of the car, smashing the windscreen, and rolled off to the side of the car when it came to a stop.
The deceased was taken to Sir Charles Gairdner Hospital (SCGH), where he was treated by medical staff (including a Dr Murphy, who made notes of his cardiothoracic review) in the emergency department. Also while in the emergency department, the deceased spoke to a police officer, Senior Constable Patten, who was investigating the collision. Later, the deceased was admitted to the intensive care unit (ICU) and then the high dependency unit (HDU) of SCGH. In the HDU, the deceased provided a statement to Senior Constable Bedworth, which he said was correct but did not sign before his death.
The respondent, who was the deceased's wife, brought proceedings under the Fatal Accidents Act 1959 (WA) for the benefit of herself and the deceased's and her dependent children. The appellant admitted that her negligent driving was a cause of the deceased's death, but contended that the damages should be reduced on account of the deceased's contributory negligence. The question of contributory negligence was tried as a preliminary issue.
The trial judge found that the deceased was not contributorily negligent and ordered that the appellant pay the respondent 100% of the damages to be assessed. The appellant now appeals on a number of grounds against the judgment on that preliminary issue. For the reasons which follow, in my view, none of those grounds are established and the appeal must be dismissed.

Facts found by the trial judge

The trial judge made the following factual findings.

Circumstances of the accident

At about 3.00 pm on 12 May 2013 the deceased was riding a bicycle along Broome Street in a northerly direction towards the roundabout intersection with Eric Street in Cottesloe.[1]
[1] Primary decision [1].
The deceased was a recreational cyclist. He was not a serious or expert cyclist. He was wearing shorts and a t-shirt, not lycra. He was wearing joggers, not clip on cycling shoes. He was riding a pushbike, not a racing bike.[2]
[2] Primary decision [122] - [123].
At the same time the appellant was driving a BMW sedan in an easterly direction along Eric Street towards the roundabout intersection with Broome Street. The deceased was therefore approaching the intersection from the appellant's right. Give way signs regulated traffic entering into the roundabout.[3]
[3] Primary decision [1].
The speed limit for traffic travelling on Broome and Eric Streets is 50 km/h.[4]
[4] Primary decision [74].
As the appellant approached the roundabout, she slowed her vehicle almost to a stop.[5]
[5] Primary decision [154].
After the deceased rode his bicycle into the roundabout he collided with the appellant's vehicle on the northern side of the roundabout, as a result of which he was knocked from his bicycle.[6]
[6] Primary decision [1].
The deceased was probably travelling at a speed of approximately 15 km/h as he entered the roundabout and no more than 20 km/h.[7] Grounds 5 and 6 specifically challenge this finding as to the deceased's speed.
[7] Primary decision [141].
The deceased was entitled to assume that the appellant had seen him and was either stopped at the give way sign or was stopping at the give way sign to allow him to ride through the roundabout. As he was required to do, the deceased then focussed his attention on Mr Maddison and traffic entering the roundabout from the deceased's right, to which the deceased was required to give way. The deceased was moderating, or adjusting, his speed to allow him to give way to the traffic he observed on his right.[8]
[8] Primary decision [155].
There is nothing in the evidence of Mr Maddison's description of what he observed which leads to a conclusion that the deceased's actions caused Mr Maddison to take any sudden evasive action or that the deceased entered the roundabout in an unsafe manner or at an unsafe point of time.[9]
[9] Primary decision [162] - [163].
The appellant drove her vehicle into the roundabout after the deceased had entered the roundabout. She only saw him virtually at the point of collision. Because she was only travelling slowly, at 5 - 10 km/h as she travelled into the roundabout, she was able to brake to a stop almost immediately.[10] Because of the deceased's position in the roundabout when the appellant drove her vehicle into the roundabout there was not sufficient time for him to brake or take other evasive action to avoid the collision.[11]
[10] Primary decision [160].
[11] Primary decision [167].
The finding that the appellant drove her vehicle into the roundabout after the deceased had entered the roundabout is specifically challenged by grounds 6A and 9(b).
Had the appellant been keeping a proper lookout when she approached, or was at, the give way sign on Eric Street, she would have seen the deceased's bicycle before she entered into the roundabout. Her failure to see the deceased was negligent, as is accepted by her by the admission of liability.[12]
[12] Primary decision [164].
By reason of the collision, the deceased suffered various injuries including a chest injury and a penetration wound to his heart which resulted in his death on 23 May 2013.[13]

Deceased's statements as to the circumstances of the accident

Hospital notes

[13] Primary decision [2].

After the accident, the deceased was admitted to SCGH emergency department at approximately 3.30 pm on 12 May 2013.[14] The nursing triage notes relevantly read:[15]
Presenting problem:
Car v's cyclist
Assessment
63 yr old male BIBA [brought in by ambulance] post car vs cyclist – hit by car into windscreen. ? speed car approx. 20 km/hr. Unable to ambulant at scene. (emphasis added)
[14] Primary decision [76].
[15] Primary decision [71] (Green AB 321).
The following presently relevant emergency department continuation notes were made in relation to a cardiothoracic review by Dr Murphy at 5.20 pm on 12 May 2013:[16]
Cyclist vs car this afternoon 50km/hr
Was at roundabout → BMW failed to give way and hit pt on L) side → Landed on R) chest
Does not think he lost consciousness but is unsure
(emphasis added)
It is unclear whether these notes were made at the time the deceased was being spoken to by the doctors and being assessed, or whether the notes were compiled afterwards.[17]
[16] Primary decision [72] (Green AB 303).
[17] Primary decision [79].
It is unclear, by reference only to the notes quoted at [22] above, to what the 50 km/h speed relates. At first blush, the note appears to refer to the speed at which the car was travelling.[18] It was unlikely to be a reference to the speed limit in the area of 50 km/h. It is more likely a reference to the speed at which either the cyclist, or the car, was travelling.[19]
[18] Primary decision [80].
[19] Primary decision [83].
It was likely that the information about the circumstances of the collision in the notes quoted at [22] above came from the deceased. By the time these notes were taken, the deceased had been in the emergency department for approximately 2 hours and had suffered significant injuries.[20] The deceased would have been distressed by and preoccupied with the nature of his injuries and his circumstances and would have been suffering significant pain. From a medical point of view he was alert and orientated and able to speak. However, that is not to conclude that any information he provided regarding the circumstances of the collision was accurate and reliable, or that the doctors accurately and reliably recorded any information provided. The doctors would have been recording information for the purposes of medical diagnosis and would only have been concerned to obtain the briefest information to allow them an understanding of the circumstances which caused the injuries to the deceased. They would not have been concerned to go into precise detail regarding the circumstances of the accident.[21]
[20] Primary decision [76].
[21] Primary decision [79].
The following relevant notes were made on an 'Intensive Care Unit Flow Chart':[22]
ADMISSION DATE: 12.05.13
TODAY'S DATE: 12.05.13
DAYS IN ICU: 1
Diagnosis: cyclist vs car (50kph) collided [-] car (L) side and landed (R) chest. Nil LOC [loss of consciousness]. Flail chest # [fractured ribs] (L) 8 – 11/#??). #sternum clear cspine (L) elbow adema, abrasions
…
12/05/13
It is likely that this entry in the ICU flow chart was taken from earlier notes, most probably originating in Dr Murphy's notes quoted at [22] above.[23]
[22] Primary decision [72] (Green AB 315).
[23] Primary decision [91].
The deceased was spoken to by SC Patten in the emergency department of SCGH. The deceased said to SC Patten that he was going fast for a pushbike. This was a brief conversation in which the deceased was cut off mid-sentence because his oxygen levels had dropped and the nurse ordered him to put his oxygen mask back on.[24]
[24] Primary decision [110] - [111].
The following presently relevant ICU admission notes were made on 13 May 2013:[25]
Push bike v car accident.
Patient was cycling at 50 kmph, at round about, car failed to give way → Patient hit driver's side and landed on Rt side
Pt doesn't think he lost consciousness but not sure. SJA (St Johns Ambulance) called by bystanders. Pt not ambulant in the scene.
…
Impressions bike vs car accident
(emphasis added)
[25] Primary decision [72] (Green AB 306).
The primary judge was not satisfied that the information recorded in this note was taken directly from the deceased on 13 May 2013. His Honour was not persuaded that it was a contemporaneous record of something said by the deceased.[26] It was likely that the entry at [27] above was taken from the ICU flow chart quoted at [25] above. They reflect an interpretation by the author of earlier notes.[27] It is unclear whether the notes were taken by a doctor or a nurse and for what purpose,[28] but were more likely to have been recorded by a doctor.[29] The time at which the notes were made and the observations taken is unclear.[30]
[26] Primary decision [89], [106].
[27] Primary decision [91], [105].
[28] Primary decision [94].
[29] Primary decision [95].
[30] Primary decision [95].
At 8.58 am on 13 May 2013 a Registrar, Dr S Pradhan, made the following notes on a trauma services review:[31]
Bicyclist hit by car ≈ [approximately] 50 km/hr
That history is most likely to have been taken from earlier entries in the medical records and is not a fresh history taken from the deceased.[32]
[31] Primary decision [72] (Green AB 310).
[32] Primary decision [97].
An ICU review on 13 May 2013 relevantly noted:[33]
Days post trauma pushbike vs car (high speed) no loc [loss of consciousness]
It is unclear whether the reference to 'high speed' is a reference to the speed of the pushbike or the speed of the car. It is more likely to reflect a value judgement of the author from reading previous entries in the medical records than a note recording a conversation with the deceased.[34]
[33] Primary decision [72] (Green AB 311).
[34] Primary decision [98].
Admission notes for the deceased's admission into the HDU on 14 May 2013 stated:[35]
Admitted 2 days ago after car vs pushbike accident @ 50 kmph.
This entry had been carried through or taken from earlier medical records and does not record a further history taken from the deceased.[36]
[35] Primary decision [72] (Green AB 319).
[36] Primary decision [102].
The trial judge did not accept that the above notes were a reliable account of the speed at which the deceased was travelling, or believed he was travelling, when he entered the roundabout. While it was necessary for a proper understanding of how the injuries were caused to obtain details of the collision, it is likely those details would have been taken very quickly and the major focus would have been on assessing as quickly as possible the nature of the injuries suffered by the deceased, what medical investigations needed to be undertaken and what treatment should be provided.[37]
[37] Primary decision [100] - [101], [112].
The trial judge also concluded that, even if the medical notes did accurately record that the deceased had told the doctors that he was riding his bike at 50 km/h, his Honour was not persuaded that, in the circumstances the deceased faced, his estimation of his speed was reliable.[38]
[38] Primary decision [107] - [109], [112].
Grounds 3 and 4 challenge the conclusions noted at [32] and [33] above, so far as they relate to Dr Murphy's notes of 12 May 2013 which are quoted at [21] above.

Police statement

Between 11.00 am and 12.00 pm on 15 May 2013 at the HDU, SC Bedwell took a statement from the deceased. A typed copy of the statement was emailed by SC Bedwell to the deceased at 3.47 pm on 16 May 2013. The typed statement described the accident in the following terms:[39]
[39] Primary decision [16] - [17].
5.I was riding towards the intersection with Eric Street, which is governed by a roundabout and I was riding to the left of a continuous white line that seems to designate a portion of the road for cyclists.
6.This is a route I have ridden on my pushbike for between ten or fifteen years, but no more than once a week. I would say that I am fairly familiar with this intersection.
7.As I approached this intersection, I had a good clear view from a long way back of traffic approaching the roundabout.
8.At this time I guess I was travelling around 25 - 30 kph.
9.I could see at least one, possibly even two, cars approaching the roundabout along Eric Street from my right, that is to say they were travelling in a westerly direction.
10.I think there may have been a car approaching the roundabout from the opposite direction to mine along Broome Street.
11.I also remember noticing a car going very slow, or even possibly stopped, at the intersection of the roundabout on Eric Street travelling in an easterly direction.
12.The vehicles travelling from my right had priority over myself when entering the roundabout, so I was watching them and trying to moderate my speed so that I didn't have to stop.
13.As I was watching the traffic to my right, I wasn't paying particular attention to the vehicle to my left, as I assumed that it would give way to me.
14.I entered the roundabout after the cars had passed in front of me.
15.I was probably going quite quickly for a pushbike, somewhere between 25 - 30kph.
16.When I was well into the roundabout, it became clear that the driver of the car to my left was pulling out.
17.I then had to brake very hard to try and slow down.
18.I turned my handlebars in an effort to steer around the car, but it was not effective.
19.I hit the side of the car and the next thing I remember is landing on the road.
(emphasis added)

At about 2.55 pm on 21 May 2013, the deceased emailed SC Bedwell in relation to the typed unsigned statement sent to him by SC Bedwell on 16 May 2013, part of which is set out at [35] above. In that email the deceased said:[40]
[T]hanks for your email - sorry it has taken me a few days, I've had problems getting my home computer set up and have only just seen it.
It's fine, actually pretty accurate.
The deceased went on to provide an update as to a presently irrelevant matter. By this email, the deceased accepted the contents of the unsigned statement as accurate and was prepared to sign it subject to updating the presently irrelevant matter. However, the deceased did not get to sign the statement before his death on 23 May 2013.[41]
[40] Primary decision [18].
[41] Primary decision [19].
The deceased's estimation of travelling at a speed of 25 ‑ 30 km/h, made on 15 May and confirmed on 21 May, was a more reliable estimation of his speed than any estimation he may have given to a doctor or nurse in the emergency department or ICU of SCGH, even though such an estimation was given closer in time to when the collision occurred.[42]

Mr Maddison's estimates of speed

[42] Primary decision [115].

Mr Maddison was the only witness who was able to provide an estimation of speed. He estimated the deceased was travelling at 15 ‑ 20 km/h. He was not sure whether the deceased was peddling or free‑wheeling but thought he was coming at speed. He only saw the cyclist before he collided with the appellant's car for about 2 ‑ 3 s and over a distance of about 25 m.[43]
[43] Primary decision [116].
Mr Maddison was in the best position to make the most reliable estimation of the speed at which the deceased was riding his bike,[44] and his estimation was more reliable than the deceased's estimation of his own speed.[45] He was approaching the roundabout travelling in a westerly direction, that is, in the opposite direction to the appellant. The deceased was approaching the roundabout from Mr Maddison's left. Just after Mr Maddison entered the roundabout and before he reached the intersection with Eric Street, Mr Maddison saw the deceased when the deceased was about 5 m back from the give way sign facing him. The bicycle 'shot across in front or went across in front of' Mr Maddison's vehicle.[46]
[44] Primary decision [117], [137].
[45] Primary decision [138].
[46] Primary decision [137].

Trial judge's approach

Identification of issue raised by the pleadings

The trial judge began his substantive consideration by referring to the pleadings, which raised the issue of whether the collision and injuries to the deceased were caused or contributed to by the negligence of the deceased.[47] The essence of the appellant's contentions in those pleadings was that the deceased was travelling at excessive speed in the circumstances and failed to keep a proper look out.

Summary of appellant's trial submissions

[47] Primary decision [7].

The trial judge summarised the appellant's submissions on the issue of contributory negligence.[48] His Honour said the main basis on which the appellant pleaded the deceased was contributorily negligent was that he was riding at an excessive speed.[49] His Honour identified, in substance, three bases on which the appellant invited the court to find that the deceased was travelling at excessive speed:
(1)The court could find that the speed was excessive because the deceased was not able to react in time to avoid colliding with the appellant's vehicle.[50]
(2)The court could infer that the speed was excessive from the deceased's police statement that he 'was going fast for a bike'.[51]
(3)The court could make a finding, based on the deceased's statements recorded in the hospital notes, that he was travelling at 50 km/h, which was in all the circumstances excessive.[52]
Only the third basis required the trial judge to make a finding as to the speed, in km/h, at which the deceased was travelling. The trial judge also noted the appellant's counsel's closing submission that something less than 25 km/h would have been a safe speed in the circumstances of the accident.[53]

Rejection of appellant's case that the deceased was travelling at 50 km/h

[48] Primary decision [8] - [15].

[49] Primary decision [10].

[50] Primary decision [11], [13].

[51] Primary decision [12].

[52] Primary decision [13].

[53] Primary decision [14].

After summarising the evidence,[54] the trial judge moved to consider what findings he should make as to the speed at which the deceased was riding his bicycle. His Honour began by considering what findings could be made based on the hospital notes.[55] In the course of doing so, the trial judge observed:[56]
The [appellant] bears the onus of satisfying me on the balance of probabilities that from the medical records, essentially the entry on 13 May in the ICU admission notes, and from other evidence, principally the eye witnesses to the accident, that [the deceased] was riding his bike at 50 km/h when he entered the roundabout.
[54] Primary decision [16] - [72].
[55] Primary decision [75] - [109].
[56] Primary decision [99].
The trial judge made the findings referred to above, including that:[57]
At the very least I am not persuaded that it is so clear that the ICU admission notes of 13 May 2013 record a fresh history taken from [the deceased]. Having regard to the onus of proof being on the [appellant] I am not satisfied that it is more probable than not that the ICU admission notes record a contemporaneous statement by [the deceased] that he was cycling at a speed of 50 km/h at the roundabout when the accident occurred.
and that:[58]
[E]even if I accepted that the medical notes did accurately record that [the deceased] had told the doctors that he was riding his bike at 50 km/h, I am not persuaded, that in the circumstances [the deceased] faced, his estimation of his speed was reliable.
[57] Primary decision [106].
[58] Primary decision [107].
The trial judge then referred to the evidence of SC Patten as to what the deceased told him in the emergency department, accepting that the deceased had told the police officer that he was going fast for a pushbike.[59] The trial judge summarised his conclusion at this point in the following terms:[60]
In summary, the [appellant] has not satisfied me on the balance of probabilities that the medical records are a reliable record that [the deceased] said he was riding his bike at 50 km/h. Even if I was to accept the medical records do reliably record what a doctor or nurse was told by [the deceased] of what he believed was his speed at the time of the collision, I am not satisfied [the deceased's] estimation of his speed given in the emergency department or the ICU of SCGH was a reliable estimation of his speed. I am not prepared to find, based upon the entries in the medical records, that [the deceased] was riding his bicycle at 50 km/h. (emphasis added).
[59] Primary decision [110] - [111].
[60] Primary decision [112].
The trial judge then turned to consider the evidence of the account given by the deceased in his unsigned police statement. The trial judge explained why he concluded that the deceased's estimate in the statement of travelling at a speed of 25 - 30 km/h was more reliable than any estimation he may have given to a doctor or nurse in the emergency department or ICU of SCGH.[61] His Honour said that Mr Maddison was in the best position to make the most reliable estimation of the speed at which the deceased was riding his bike. He noted that Mr Maddison's estimation of 15 - 20 km/h was far closer to the deceased's estimation of 25 - 30 km/h. His Honour said that Mr Maddison's evidence:[62]
[S]upports my finding that if [the deceased] did give an estimation of speed of 50 km/h to medical staff at the hospital, it was an unreliable estimation. It is unlikely Mr Maddison, who was called by the [appellant], would have estimated the speed at 15 - 20 km/h if [the deceased's] speed was more than twice that, or three times greater than the lower estimation of speed.
[61] Primary decision [113] - [115].
[62] Primary decision [117].
The trial judge noted that neither the appellant nor Ms Staszewski (Mr Maddison's passenger) were able to give an estimation as to the speed at which the deceased was travelling.[63]

Finding as to the speed at which the deceased was travelling

[63] Primary decision [118].

Having rejected the proposition that the deceased was travelling at 50 km/h in the above passages, the trial judge turned to consider whether he could make any findings as to the speed at which the deceased was riding his bicycle.[64]
[64] Primary decision [119].
The trial judge first addressed the deceased's unsigned police statement.
His Honour did not accept the appellant's submission that the deceased was in the best position to make an estimation of his own speed. His Honour said:[65]
A person's estimation as to the speed at which they were travelling is likely to be more accurate and reliable if their bicycle was fitted with a speedometer. There is no evidence [the deceased's] bicycle was fitted with a speedometer.
The trial judge noted that a person's cycling experience and the types of speed at which they routinely travelled might give weight to their estimate of travelling speed. His Honour then referred to evidence suggesting that the deceased was an occasional, although regular, recreational cyclist who was not a serious or expert cyclist likely to be riding at a higher speed.[66]
[65] Primary decision [121].
[66] Primary decision [122] - [123].
The trial judge noted that there was no evidence as to how quickly the deceased's bike could be ridden. Nor was there evidence about the incline of the street towards the roundabout, or the impact incline could have on the speed at which the bicycle could be ridden.[67] His Honour said:[68]
I raise these matters, not to speculate about matters which are not in evidence, but to emphasise that it is the [appellant] who bears the onus of proof in satisfying me on the balance of probabilities that [the deceased] was contributorily negligent in causing the accident because he was riding his bicycle at an unsafe speed.
[67] Primary decision [124].
[68] Primary decision [125].
The trial judge referred to his rejection of the appellant's contentions as to what could be drawn from the hospital notes.[69]
[69] Primary decision [126].
Returning to the deceased's police statement, the trial judge said that the use of the words 'guess' and 'probably' indicated that the deceased was uncertain of what his speed was.[70] His Honour said that the deceased's statement that he was 'probably going quite quickly for a pushbike' was of little or limited weight in the absence of knowing the speed at which the deceased regularly rode his bicycle.[71] His Honour concluded that the deceased's reference to moderating his speed was to adjusting his speed as he prepared to merge with the traffic in the roundabout so he did not have to stop.[72]
[70] Primary decision [127].
[71] Primary decision [128].
[72] Primary decision [129].
The trial judge turned to address the deceased's statement that he had entered the roundabout after cars had passed in front of him. The trial judge said:[73]
The [appellant] submits that there is no evidence which confirms that [the deceased] entered the roundabout after cars to his right had passed in front of him and that he was wrong about that. I accept that submission. It reinforces my view that [the deceased's] memory of all of the circumstances leading up to the accident is not necessarily that reliable, which is understandable given the sudden and traumatic nature of the accident and the significant injuries suffered by him. It reinforces my view that his estimation of his own speed is not reliable.
The trial judge also said that the statement about cars passing in front of him supported the finding that, when he referred to trying to moderate speed, the deceased was:[74]
[A]djusting his speed by reference to the cars on his right, having regard to the need to give way to them and not wanting to stop at the roundabout. In those circumstances the reference to trying to moderate speed means to adjust his speed by reducing his speed.
[73] Primary decision [130].
[74] Primary decision [131].
The trial judge rejected a submission by the appellant that the deceased's statement was unconsciously influenced by the prospects of a compensation claim.[75]
[75] Primary decision [132] - [136].
The trial judge then turned to Mr Maddison's evidence, summarising its effect and concluding that Mr Maddison was in the best position to assess the speed at which the deceased's bicycle was travelling.[76] His Honour acknowledged and had regard to the difficulty in estimating the speed at which another object is travelling, particularly over a brief period of time.[77] He then expressed his conclusion as to the deceased's speed in the following terms:[78]
I am satisfied Mr Maddison's estimation of the speed at which [the deceased] was riding his bicycle is the most reliable estimation as to speed. It is a more reliable estimation than [the deceased's] own estimation as to his speed.
Further, his estimation of the upper range of 20 km/h is not dissimilar to [the deceased's] estimation at the lower speed of 25 km/h.
Without wanting to disparage any 63-year-old male recreational cyclists riding on their pushbike once a week, I think a speed of 15 km/h reflects a speed which could be realistically achieved by such a cyclist. A speed of 20 km/h would certainly be 'going quite quickly for a pushbike'.
I find that [the deceased] was probably travelling at a speed of approximately 15 km/h as he entered the roundabout and no more than 20 km/h.
As noted above, these findings are challenged by grounds 5 and 6.

Whether the deceased's manner of riding was negligent

[76] Primary decision [137].

[77] Primary decision [138].

[78] Primary decision [138] - [141].

After setting out the applicable legal principles,[79] the trial judge proceeded to determine whether at a speed of 15 - 20 km/h, having regard to all of the surrounding circumstances, the deceased's manner of riding his bike was negligent and contributed to the cause of the accident.[80]
[79] Primary decision [142] - [150].
[80] Primary decision [151].
The trial judge noted three aspects of the evidence which his Honour regarded as particularly important:
(1)As the appellant approached the roundabout, she slowed almost to a stop so that the deceased was entitled to assume she had seen him and was giving way as required by the give way sign.[81]
(2)The appellant drove her vehicle into the roundabout after the deceased entered the roundabout.[82]
(3)There was no suggestion by Mr Maddison or his passenger Ms Staszewski that the deceased's actions caused Mr Maddison to take any sudden evasive action, or that the deceased entered the roundabout in an unsafe manner or at an unsafe point in time.[83]
[81] Primary decision [152] - [155].
[82] Primary decision [156] - [160].
[83] Primary decision [161] - [163].
The trial judge found that the appellant had an unobstructed view of the intersection, and said that:[84]
Although [the deceased] was riding quickly for his pushbike he was entitled to ride in such a way as to expect [the appellant] would remain stationary at the give way sign. He rode in such a way that he did not pose or create a risk of a collision with Mr Maddison's vehicle. Mr Maddison was able to pass through the intersection behind [the deceased] without slowing down, stopping or taking any evasive action. Had [the appellant] not moved forward into the roundabout [the deceased] would have ridden safely through the roundabout.
I am not persuaded that his manner of riding his bicycle was in all of those circumstances negligent.
[84] Primary decision [164] - [165].
The trial judge then considered and rejected the appellant's contention that it could be inferred that the deceased was travelling at an unsafe speed from the fact that he was unable to avoid the collision.[85] The trial judge concluded:[86]
For the reasons I have already given, I am satisfied [the deceased's] manner of riding, in circumstances where he saw and believed [the appellant] was coming to a stop, or had stopped, at the give way sign to allow him to cross through the roundabout, was safe. It was reasonable that he believed it was safe for him to enter into the intersection providing he could safely do so having regard to traffic entering the roundabout from his right. [The appellant] drove into the intersection unexpectedly. Taking reasonable care for his own safety did not require [the deceased] to ride at such a speed, and in such a way, to be able to avoid a collision with [the appellant's] vehicle if she unexpectedly pulled out into the intersection in front of him. I have found [the deceased] was probably riding his bike at a speed of approximately 15 km/h and no more than 20 km/h. In my view that was in all of the circumstances a safe speed to be riding the bicycle when [the deceased] approached and entered the roundabout. A cyclist, taking reasonable care for his own safety, seeing a vehicle stationary at a give way sign, is entitled to enter the intersection in the expectation the driver will comply with the give way sign and not unexpectedly fail to give way and enter into the intersection after the cyclist has entered the intersection.

Causation

[85] Primary decision [168] - [172].

[86] Primary decision [172].

The trial judge then turned to address the issue of whether any contributory negligence by the deceased caused his injuries and death. The trial judge held that, at whatever speed the deceased was riding his bicycle, his speed was not causative of the collision.[87]
[87] Primary decision [173] - [174].
The trial judge found that the only cause of the collision was the appellant's failure to see the deceased and her entering into the roundabout after the deceased had already entered the roundabout. She entered the intersection without seeing the deceased. She therefore entered the intersection unexpectedly. In circumstances where the appellant had driven into the intersection immediately in front of the deceased's bicycle, at whatever speed he was riding, it is likely the deceased would have been unable to avoid the collision.[88]
[88] Primary decision [173].
The deceased rode his bike in a safe manner and was entitled to assume it was safe for him to enter the roundabout in the manner in which he did. It was reasonable for him to expect that the appellant had seen him and would not enter into the roundabout until he travelled through it. Taking proper care for his own safety, the deceased was not required to expect that the appellant would enter into the roundabout as she did and that he would need to take evasive action to avoid a collision. The speed at which he was riding his bicycle, whatever it was, was not causally relevant to the collision. The sole cause of the collision was the appellant's manner of driving, involving her failure to observe the deceased and to drive into the roundabout after the deceased had already entered the roundabout.[89]

Orders

[89] Primary decision [174].

The trial judge therefore found that the deceased was not contributorily negligent in his manner of riding his bicycle. His Honour ordered that the appellant pay the respondent 100% of the damages to be assessed and her costs of the preliminary issue.[90]
[90] Judgment on preliminary issue entered 26 August 2019.

Ground 1: Failure to consider the evidence as a whole

Ground 1 contends that:
The learned trial judge erred in law in that he failed to consider and evaluate the accumulation of the evidence as a whole and to consider its united force, and instead considered evidence in a piecemeal way in isolation from other evidence and wrongly applied the ultimate standard of proof to particular pieces of evidence considered in isolation from other evidence.

In my view, there is no merit to this ground. In the manner described above, the trial judge had regard to the whole of the evidence - the hospital notes, statements made by the deceased to police and eyewitness accounts - in reaching his conclusion as to the speed at which the deceased was travelling.
The appellant's submissions on this ground focus on the passage quoted at [42] above, reproduced again for convenience below:
The [appellant] bears the onus of satisfying me on the balance of probabilities that from the medical records, essentially the entry on 13 May in the ICU admission notes, and from other evidence, principally the eye witnesses to the accident, that [the deceased] was riding his bike at 50 km/h when he entered the roundabout.

Appellant's onus to prove the deceased was travelling at 50 km/h

The appellant's first criticism of this passage is that she was not, she submits, required to prove that the deceased was travelling at 50 km/h. She submits that she was only required to prove that the deceased was riding at excessive speed at the final stage of the reasoning process, having regard to the accumulation of the evidence as a whole and its united force. The appellant submits that the evidence that the deceased said that he was travelling at 50 km/h was only one piece of evidence relevant to that issue.
In my view, this submission ignores the structure of the trial judge's reasons, which was consistent with, and reflected, the manner in which the appellant had put her case. His Honour had identified one basis on which he understood the appellant to contend that the deceased was travelling at excessive speed as being that he should find, based on the medical notes, that the deceased was travelling at 50 km/h.[91] The trial judge, in summarising his understanding of that submission, referred to the following comments made by the appellant's counsel in opening:[92]
[T]his is a case where there is, as it happens, a strong evidential basis for – well, I can't say it's a strong – there is an evidentiary basis, in the words of [the deceased] himself, that he was travelling at 50 kilometres an hour.
Four days later he put it at 25 to 30 kilometres an hour, but in terms that it was still quick for a bike. It's - our friends say themselves in their written submissions that the speed limit on this road was 50 kilometres an hour. So at 50 kilometres an hour, he is traveling at the nominated speed limit for the road as he enters an intersection at which vehicles are present, at which he knows vehicles are present …
[T]he point is he was aware that there was traffic at the intersection and at 50 kilometres an hour, was traveling at the nominated speed limit through the intersection on a bicycle.
And anyone who - in my submission, anyone who is familiar with the ordinary day-to-day incidents of traveling through an intersection is capable - is able to form the view as a matter of ordinary experience and common sense that that is just too [fast].
[91] Primary decision [13].
[92] Trial ts 58.
Further, in written opening submissions at trial, the appellant submitted that the deceased's 'original admission that he was travelling at 50 kph is more likely to be correct'.[93] The position was maintained in closing, where the appellant's counsel invited the trial judge to find that the deceased was travelling at 50 km/h.[94] In doing so he made extensive oral submissions as to the hospital notes, contending that they were reliable evidence of what the deceased had said about his speed and that the deceased's estimate was reliable.[95]
[93] Defendant's Outline of Opening Submissions, par 31 (Blue AB 83).
[94] Trial ts 265.
[95] Trial ts 282 - 299.
The trial judge was, therefore, correct to apprehend that one of the bases on which the appellant advanced her case of contributory negligence was that the deceased was travelling at 50 km/h, which was an excessive speed in the circumstances. To make out a case on that basis, the appellant needed to prove, on the balance of probabilities, that the deceased was travelling at 50 km/h. The only evidence of that fact to which the appellant was able to point was the hospital notes. Before he could be satisfied that the evidence established that the deceased was travelling at 50 km/h, the trial judge would have to be satisfied that the notes accurately recorded what the deceased had told hospital staff and that his estimation of his own speed was accurate.
That was what the trial judge was doing in the part of his reasons which are the focus of the appellant's complaint. He was addressing the submission that he should find the deceased contributorily negligent on the basis that he was travelling at 50 km/h, which was an excessive speed in the circumstances. His Honour correctly recognised that the appellant bore the onus of establishing that the deceased was travelling at 50 km/h before he could find the deceased to have been contributorily negligent on that basis. The trial judge rejected the submission because the essential facts on which it was based were not established on the balance of probabilities.
It may also be noted that, in rejecting that part of the appellant's case based on the proposition that the deceased was travelling at 50 km/h, the trial judge did have regard to the deceased's statements to police,[96] as well as the evidence of Mr Maddison.[97] Even in dealing with that aspect of the appellant's case based on the contention that the deceased was travelling at 50 km/h, his Honour had regard to the whole of the evidence and did not take a piecemeal approach to his task.
[96] Primary decision [113] - [114].
[97] Primary decision [116] - [117].
On appeal, senior counsel for the appellant denied that the references to the deceased's and Mr Maddison's evidence noted in the previous paragraph addressed the question of whether the deceased was travelling at 50 km/h.[98] I do not accept that submission. The trial judge's discussion of their evidence at this point of his reasons was expressly related to the proposition that the deceased was travelling at 50 km/h. For example, the trial judge said that Mr Maddison's estimate of speed 'supports my finding that if [the deceased] did give an estimation of speed of 50 km per hour to medical staff at the hospital, it was an unreliable estimation.'[99]
[98] Appeal ts 42 - 44, 47 - 48.
[99] Primary decision [117].
Rejection of the proposition that the deceased was travelling at 50 km/h resolved one of the bases on which the appellant's contributory negligence argument was advanced. That conclusion did not resolve the whole of the contributory negligence argument, as the trial judge recognised. Having rejected that aspect of the appellant's case, his Honour went on to make findings as to the speed at which the deceased was travelling.[100] In doing so, he did not suggest that the appellant bore the onus of proving that the deceased was travelling at any particular speed.

Reference to the notes of 13, rather than 12, May 2013

[100] Primary decision [119] - [141].

The appellant's second criticism of the trial judge's reasons quoted at [66] above is that the focus on the notes of 13 May 2013 'was (with respect) inexplicable and deflected from the question'.
In my view, the focus on the notes of 13 May 2013 was readily explicable. The notes made by Dr Murphy on 12 May 2013, either alone or with other evidence, were incapable of supporting a finding that the deceased told Dr Murphy that he was travelling at 50 km/h. The trial judge correctly made a finding, noted at [23] above, to the effect that it was not clear whether the reference to 50 km/h in the 12 May 2013 notes was to the speed of the cyclist or the car. I will explain my reasons for reaching that conclusion in dealing with ground 3, at [85] - [93] below.

The earliest reference in the hospital notes to the deceased travelling at 50 km/h was in the ICU admission notes of 13 May 2013. Later medical notes were either equally ambiguous as Dr Murphy's notes of 12 May 2013, or were likely derived from earlier notes. Therefore, success of that part of the appellant's case based on the contention that the deceased was travelling at 50 km/h required her to establish that the note of 13 May 2013 accurately reflected what the deceased had said and that his estimate of speed was reliable. Having made findings as to the lack of clarity in the 12 May 2013 note, the trial judge was correct to focus on the ICU admission notes of 13 May 2013.

References to eye witness evidence

The appellant's third criticism of the trial judge's reasons quoted at [66] above is that it identifies evidence as 'principal' or 'essential'. Again, in my view, that criticism is entirely unwarranted. The note of 13 May 2013 was the only statement in the hospital notes, which was not clearly derived from earlier notes, that the deceased was travelling at 50 km/h. Senior counsel for the appellant acknowledged that the only direct reference to a 50 km/h speed was in the hospital notes.[101] That note was the essential basis on which this part of the appellant's case was based, and the principal other evidence which went to the issue of speed was the eyewitness accounts In any event, description of evidence as 'principal' or 'essential' does not mean that it was the only evidence considered.
[101] Appeal ts 44.

Ground 2: Adequacy of reasons

Ground 2 contends that the trial judge erred in law in failing to give adequate reasons for his decision.
The fundamental requirement for reasons is to adequately disclose the actual intellectual process which has resulted in a particular determination.[102] Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case.[103] As was noted in G v O,[104] whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration. The court will look at the reasons as a whole, if necessary in the context of the evidence, to determine if they achieve their required function and purpose. The fundamental elements of a statement of reasons are:
(1)a reference to the relevant evidence (which need not be detailed);
(2)a statement of material findings of fact and any ultimate conclusions;
(3)a statement of the reasons for making those findings and conclusions; and
(4)an explanation of how the law was applied to the facts as found.
In doing these things, the reasons must demonstrate an engagement with the losing party's case.
[102] Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226[73].
[103] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27].
[104] G v O [2018] WASCA 211; (2018) 53 WAR 393 [63].
In my view, the trial judge's reasons comfortably satisfy all of the above requirements. They explain the intellectual process which his Honour adopted to reach the conclusions at which he arrived, in a manner which allows this court to identify any error. The appellant's complaints are really either just disagreement with the reasoning process, or complaint that error is revealed by that process, rather than a complaint that the reasoning process is unascertainable.
For example, the appellant says that the trial judge did not deal with the inconsistency between Mr Maddison's speed estimate of 15 - 20 km/h and his estimate that the deceased travelled 25 m over 2 - 3 s (indicating a speed of 30 - 45 km/h).[105] While the appellant made submissions to the trial judge relying on this inconsistency, the judge was not required to deal expressly with every submission made by a party. This was not a matter of such significance that a failure to refer to it amounted to a failure to engage with the losing party's case. The appellant's real argument is that the failure to refer to the inconsistency reveals that the judge erred by overlooking it. I deal with, and reject, that argument at [124].
[105] Appeal ts 6, 13, 15.
In my view, ground 2 is entirely without merit.

Ground 3: Wrong findings as to Dr Murphy's notes

Ground 3 contends that the trial judge erred in his findings with respect to Dr Murphy's notes of 12 May 2013.
The note relevantly said:
Cyclist vs car this afternoon 50km/hr
Was at roundabout → BMW failed to give way and hit pt on L) side → Landed on R) chest
The appellant first contends that the trial judge erred in failing to find that these notes were an accurate record of the deceased's own contemporaneous estimate of the speed at which he was travelling immediately prior to the collision with the appellant's vehicle.
There is nothing in this note to indicate what the '50 km/hr' refers to. It is ambiguous as to whether the appellant's car or the deceased's bicycle was said to be travelling at 50 km/h, or whether the reference is to something else such as the speed limit in the area. The note is also materially inaccurate, as it refers to the appellant's car hitting the deceased on his left side, rather than the deceased running into the appellant's car as she pulled out in front of him. The note does not identify the person who provided the information to Dr Murphy, in particular whether the noted information was obtained directly from the deceased or via a third person such as a nurse or ambulance officer. Dr Murphy did not give evidence at trial. No person gave evidence of assistance in understanding the note, or the circumstances in which it was taken.
The appellant submits that, as her car was clearly not travelling anywhere near 50 km/h at the time of the accident, the reference to '50 km/hr' must be to the speed of the cyclist. She submits that, in construing the note, regard should be had to the other evidence. The appellant particularly refers to evidence to the effect that the deceased was travelling fast, and Mr Maddison's estimate that the deceased covered about 25 m in 2 - 3 s (equivalent to up to 45 km/h). The appellant says that, when Dr Murphy's note is read in the context of this evidence, it can be inferred that the reference to 50 km/h must be to the speed of the cyclist.
I do not accept the submission summarised in the previous paragraph. In my view, the evidence other than the hospital notes makes it highly unlikely that the deceased was, or thought that he might have been, travelling at anywhere near 50 km/h. In particular:
(1)The deceased's later statement to police indicates that neither he nor the appellant were travelling at 50 km/h, and estimates that he was travelling at approximately 25 - 30 km/h.
(2)Mr Maddison's evidence also indicates that neither the bicycle nor the car were travelling anywhere near 50 km/h. As the trial judge correctly noted, Mr Maddison is highly unlikely to have estimated the deceased's speed to have been 15 - 20 km/h if he was actually travelling at or near 50 km/h. Further, for the reasons explained at [110] - [124] below, Mr Maddison's estimates of the distance travelled by the deceased over time do not provide a reliable basis for determining the speed at which the deceased was travelling.
(3)It is inherently unlikely that a 63-year-old occasional recreational cyclist, who was not riding a racing bike, would have been capable, or would have considered himself capable, of reaching 50 km/h.
The weight of the other evidence indicates that neither the appellant's car nor the deceased could have been travelling anywhere near 50 km/h. In that context, there is no reason to attribute the reference to '50 km/hr' in Dr Murphy's note of 12 May 2013 as being to the speed of the cyclist rather than the car. If the other evidence established that neither the bicycle nor the car were actually travelling at or anywhere near 50 km/h, then there would be no reason to conclude that the reference to speed was to one or the other of the car or bicycle.
The notes of 12 May 2013 were ambiguous as to what the deceased had said. In my view, the other evidence taken as a whole does not resolve the ambiguity in those notes. The trial judge properly concluded that the note of 12 May 2013 did not make it clear whether the reference to speed relates to the car or the cyclist.[106] They are not a record of the deceased making a statement estimating his speed, as opposed to the speed of the car, to have been 50 km/h. In my view, the evidence as a whole does not support, and is incapable of supporting, an inference that the deceased told Dr Murphy that he was travelling at 50 km/h at the time of the accident.
[106] Primary decision [80].
The first record indicating that the deceased was travelling at 50 km/h are the ICU admission notes of 13 May 2013. However, the trial judge was not persuaded the notes of 13 May 2013 were a contemporaneous record of something said by the deceased. His Honour found that they were more likely to have been a doctor's interpretation of earlier notes. There is no ground of appeal challenging that finding about the ICU admission notes of 13 May 2013. As noted above, later medical notes were either equally ambiguous as Dr Murphy's notes of 12 May 2013, or were likely derived from earlier notes.
Therefore, in my view the evidence does not support, and is incapable of supporting, the inference that the deceased ever said that he was travelling at 50 km/h at the time of the accident. There is no other basis for concluding the deceased was travelling at or near that speed at the time of the accident.
In the alternative, the appellant contends that the trial judge erred in finding (if he did so find) that Dr Murphy's notes were not an accurate record of that matter in that it was against the weight of the evidence, was not a permissible inference and was unreasonable. In my view, the trial judge did not find that Dr Murphy's notes were an inaccurate record of what the deceased told Dr Murphy (although his Honour also did not find that they were accurate and pointed to a number of factors which could affect their accuracy). The problem with Dr Murphy's notes, from the appellant's perspective, is not that they are an inaccurate record of what the deceased said. Rather, the problem is that the notes do not purport to record what the deceased said about the speed he was travelling at the time of the accident.
In my view, ground 3 is not established.

Ground 4: Findings as to the reliability of the deceased's estimate

Ground 4 contends that the trial judge erred in finding that, insofar as Dr Murphy's notes of 12 May 2013 were an accurate record of the deceased's estimate of his speed, that estimate was unreliable. The appellant contends that there was no evidence for that finding or, alternatively, it was against the weight of the evidence, was not a permissible inference and was unreasonable.
The failure of ground 3 makes it strictly unnecessary to deal with this ground. Unless it is found that the deceased told Dr Murphy that he was travelling at 50 km/h, the question of the accuracy of the deceased's estimate that he was travelling at that speed does not arise. The trial judge was not satisfied that the deceased told Dr Murphy that he was travelling at 50 km/h at the time of the accident and this finding has not been successfully challenged on appeal.
In any event, having regard to the matters noted at [89] above, the ground is without merit. Common experience indicates that it would be highly unlikely for a cyclist such as the deceased to be able to sustain a speed of 50 km/h on a pushbike. The estimates of both the deceased in his statements to police and of Mr Maddison were that the deceased was travelling much slower that 50 km/h. In my view, the evidence, considered as a whole, did not leave it open to reasonably find that the deceased was actually travelling at 50 km/h, even if that hypothetically was what he said in the emergency department in an injured and traumatised state.

Grounds 5 and 6: Findings as to the deceased's actual speed

It is convenient to deal with grounds 5 and 6 together, as they both challenge the trial judge's finding that the deceased was travelling at a speed of approximately 15 km/h as he entered the roundabout and no more than 20 km/h.

Reference to 15 km/h as a 'speed which could reasonably be achieved'

Ground 5 contends that the trial judge erred in finding that 15 km/h 'reflects a speed which could reasonably be achieved by such a cyclist'.[107] The reference to 'such a cyclist' was to a '63-year-old recreational cyclist riding on their pushbike once a week'.[108]
[107] Primary decision [140].
[108] Primary decision [140].
The submissions advanced in support of ground 5 take this observation to be a finding that a 63-year-old male recreational cyclist cannot realistically cycle at more than 15 km/h. Senior counsel for the appellant confirmed that this was the basis on which the ground was advanced.[109] If that had been the trial judge's finding then, in my view, it would have been in error and unsupported by the evidence or common experience.
[109] Appeal ts 68.
However, in my view, that was not what the trial judge was saying. The trial judge was saying that 15 km/h was a speed that could be realistically achieved by a cyclist such as the deceased, but was not saying that it was the highest speed that such a cyclist could realistically achieve. His Honour was making that observation in the context of a trial where the appellant had suggested a speed of 50 km/h. In context, the statement that 15 km/h reflected a speed that could be realistically achieved indicated the trial judge's view (which I share) that the alternative proposed speed of 50 km/h was unrealistic, at least for a cyclist such as the deceased. There was no error in that observation.
That is, the trial judge was not saying that the deceased was, or a cyclist such as the deceased would be, incapable of travelling any faster than 15 km/h. Rather, his Honour was assessing whether the speed which he found the appellant to be travelling at was realistic for a cyclist such as the deceased. In my view, the submissions advanced in support of ground 5 are based on a misinterpretation of the trial judge's observation. The appellant correctly accepted that ground 5 would not be made out if the impugned passage of the trial judge's reasons was construed in the manner indicated above.[110]

Appellate review of factual findings

[110] Appeal ts 69.

Ground 6 contends that the learned trial judge erred in fact in finding that the deceased was travelling at a speed of 15 km/h and no more than 20 km/h. The appellant contends that the finding was against the weight of the evidence, was not a permissible inference and was unreasonable.
In making this factual challenge, the appellant accepts that the role for this court is that which was explained by the High Court in Lee v Lee:[111]
A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. (citations omitted, emphasis added)
[111] Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993 [55].
As to the appellate restraint with respect to factual findings, the High Court observed in Robinson Helicopter Co Inc v McDermott:[112]
A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'. (citations omitted)
[112] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].
Even where the appeal concerns the inferences to be drawn from established primary facts, it remains necessary for the appellant to demonstrate error. As Beaumont and Lee JJ observed in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher:[113]
[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.
That observation has been adopted by this and other intermediate appellate courts.[114]
[113] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369.
[114] See Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257 [127] and cases there cited.
The choice as to the appropriate appellate standard of review is not binary. As Beech and Vaughan JJA observe at [206] - [213] below, the nature and extent of the trial judge's advantage informs what is required in order to reach, and the extent of appellate restraint in reaching, a conclusion of error. The nature of the finding, and the reasoning by which it was made, affects what is required in order to demonstrate appellable error. I agree with their Honours' observations in those paragraphs.

Evidence of Mr Maddison and Ms Staszewski

The difficulty facing the appellant in this case is that the trial judge's finding as to the speed at which the deceased was probably travelling was based on the evidence of Mr Maddison. Mr Maddison was a witness called by the appellant, and was the only living eye witness to the accident who was able to provide an estimate of the deceased's speed. His estimate that the deceased was travelling at 15 - 20 km/h was not challenged in cross-examination. His estimate of the deceased's speed was neither inherently improbable nor contradicted by other objective evidence. Mr Maddison had a clear view of the deceased as the deceased rode across his path. His unchallenged estimate which had been adduced in evidence by the appellant supported the trial judge's finding as to the deceased's speed.
The appellant relies on Mr Maddison's estimate that he saw the deceased cover a distance of 25 m over 2 - 3 s. The appellant says that this distance over time is equivalent to 8.33 - 12.5 m/s, which is 30 - 45 km/h. The appellant says that the trial judge failed to reconcile this aspect of Mr Maddison's evidence with his estimate that the deceased was travelling at 15 - 20 km/h. The appellant says that there is an inconsistency between Mr Maddison's estimate of the deceased's speed of 15 - 20 km/h and his estimation that the deceased travelled 25 m over 2 - 3 s.[115]
[115] Appeal ts 12.
One difficulty with using estimates of distance and time in this manner is that small changes in the estimates can produce large changes in the resulting speed. Suppose that Mr Maddison's estimate as to distance travelled may have been out by up to 5 m and his estimate of the time taken to travel that distance may have been out by up to a second. If the deceased covered 20 m in 4 s, he would have been travelling at 5 m/s, or about 18 km/h. If the deceased covered 30 m in one second he would have been travelling at 30 m/s, or about 108 km/h.
Mr Maddison did not base his estimate of speed on a calculation of distance over time, and his estimate of distance and time does not, in my view, provide a proper basis for rejecting his estimation of the deceased's speed. The estimates of distance and time were given in qualified terms, as indicated by the following part of Mr Maddison's evidence-in-chief:[116]
Are you able to estimate how long - how long it was between the time that you first saw the cyclist until he hit the car?---Two or three seconds, maybe.
And are you able to say in metres how far it was between the point when you first saw the cyclist and the point at which he hit the car?---I saw him about 5 metres back from the give way line and I would say probably another 20 metres maybe from there to cross to the - maybe a little bit more. I'm not sure.
But are you saying 20 metres from where?---I would say from that give way line, from the roundabout side of the give way line.
So you saw him? So it's 20 plus 5 from the point - - - ?---Yeah, 25 metres before the give way line. It'll be 20 metres on the outside before he hit the car. (emphasis added)
[116] Trial ts 136.
In cross-examination, Mr Maddison gave the following evidence as to this issue:[117]
I think you said in your evidence, Mr Maddison that between when you first saw the cyclist, he was about five metres back from the give way sign?---That's right, yes.
Between that time and the collision was about two or three seconds?---Yep, that's what it appeared to be to me, yes.
(Inaudible)?---Well, yeah, but I mean, so I could see what was going to happen.
Then the distance further on from the give way sign to the point of collision, about 20 metres again?---A rough guess, yes. Twenty, 25.
And the distance that the car travelled from her give way sign to the point of collision, I think you said that was about - - -?---Five, yeah, roughly, yeah.
All these are rough figures?---Yeah. Yeah. I could see what was going to happen, what was going to happen, …
(emphasis added)
[117] Trial ts 139 - 140.
These admittedly rough estimates of distance and time in my view provide an insecure foundation for reaching any conclusion about the speed being travelled by the deceased.
Further, contrary to the appellant's submissions,[118] in my view, estimates of the approximate speed travelled by a vehicle are likely to be more accurate than a speed calculated from estimates of both distance and time, especially where the time period is brief. While the capacity to estimate these matters will no doubt vary between individuals, ordinarily a regular road user would be expected to be more readily and reliably able to estimate speed than to estimate distance travelled and time elapsed over a period of the order of a few seconds. In Mr Maddison's case, he estimated the deceased's speed of 15 - 20 km/h in unqualified language while his estimates of distance and time were expressed in a more tentative way.
[118] Appeal ts 14 - 15.
The same observations about the difficulties of drawing a conclusion of the deceased's speed from a witness' estimation of distance travelled over time apply to Ms Staszewski's evidence. Her estimate, to the effect that the deceased covered about 29 m over 3 s, appears to have been given in even more hesitant and qualified terms than Mr Maddison's estimate.[119]

Use of scale plans to measure distance

[119] Trial ts 144 - 145, 148 - 149.

Senior counsel for the appellant submits that the uncertainties as to the distance travelled by the deceased can be resolved by reference to scale plans of the accident scene. Counsel submits that the scale plan shows that the distance from the give way sign at the southern entry to the roundabout from Broome Street to the point at which the appellant's car came to a rest is 20 m. It is submitted that the estimate that the deceased was 5 m from the entry when Mr Maddison first saw him can be combined with the scale measurement. Counsel submits that this provides a reliable distance of 25 m travelled in the 2 - 3 s over which Mr Maddison observed the deceased before the collision.
For the following reasons, I do not accept the submissions summarised in the previous paragraph.
The plans to which counsel referred are trial exhibits 1.8, 1.9 and 1.10. They are noted as being prepared by 'Verifact', and purport to show the roundabout, the resting position of the appellant's car and a line of 12.0 m from the rear of the car to the western entry to the roundabout from Eric Street. The appellant, Mr Maddison and Ms Staszewski have respectively drawn a cross to indicate the point of impact between the deceased's bike and the car. Those witnesses were cross-examined by senior counsel for the respondent as to the location of the points of impact they had indicated in the plan. The marked copies of the plan were tendered by counsel for the respondent at the conclusion of the cross-examination of those witnesses.[120]
[120] Trial ts 155 - 158.
After the tender of those plans, Gerrie John Anderson, an employee of Verifact, was called by the appellant. He gave the following evidence-in-chief about the plan which became exhibits 1.8, 1.9 and 1.10:[121]
Leaving aside the handwriting on the document and leaving aside the handwritten X on the roundabout - - -?---Yes.
- - - do you know how this document came in to existence?---Yes. From the sketch I prepared.
So when you went to the site you prepared a sketch?---Yes.
And what did you do with that sketch once you had prepared it?---It – it gets emailed to a – a draftsperson in – in Brisbane and they prepare a scale plan.
[121] Trial ts 167.
Mr Anderson gave evidence to the effect that he had measured the 12 m distance from the give way line to the rear of the car. Senior counsel for the appellant then asked him:[122]
Okay. Do you recall taking any other measurements at the scene?---Well – no. That's the only one that I can see on the – on the – on the – on the diagrams.
[122] Trial ts 167.
In the course of cross-examination, Mr Anderson confirmed that he had not measured the width of the lane.[123]
[123] Trial ts 170.
The effect of Mr Anderson's evidence was that a draftsperson in Brisbane had drawn the plan from a sketch Mr Anderson had prepared. However, the 12 m measurement was the only measurement which Mr Anderson took. It follows that the draftsperson must either have drawn the location of give way lines, traffic islands and the road configuration from a sketch drawn by Mr Anderson without measuring, or from some other source the reliability of which is not the subject of any evidence. Given this state of the evidence, in my view, no reliable conclusions can be drawn as to the accuracy of the scale plan beyond the measurement taken by Mr Anderson. In my view, it would not be appropriate to use other elements of the drawing and its scale to attempt to make a finding as to other distances. Even if the scale plan is admissible for that purpose, it is not evidence of other distances which deserves any significant weight.

Absence of reference to estimates of distance and time in primary decision

The appellant says that the trial judge did not deal with the inconsistency between Mr Maddison's speed estimate of 15 - 20 km/h and his estimate that the deceased travelled 25 m over 2 - 3 s (indicating a speed of 30 - 45 km/h).[124] The trial judge did not ignore the evidence, referring to it in his summary of Mr Maddison's evidence.[125] Any failure by the trial judge to consider how these parts of Mr Maddison's evidence were to be reconciled did not result in any miscarriage of justice, as he would properly have preferred the estimate of 15 - 20 km/h for the reasons summarised above.

Deceased's estimate of speed

[124] Appeal ts 13, 15.

[125] Primary decision [35], [37]. See also [137].

The deceased's own estimate of his speed, given in the police statement, was 25 - 30 km/h. However, he couched that estimate in qualified terms- 'I guess I was travelling around 25 - 30 kph', and 'I was probably going quite quickly for a pushbike, somewhere between 25 - 30 km/h'. This is what he regarded as 'quite fast for a pushbike'. The difference between the bottom of the range estimated by the deceased estimate (25 km/h) and the top of the range estimated by Mr Maddison (20 km/h) is only 5 km/h. Further, unlike Mr Maddison, the deceased was recounting a traumatic event in which he has received serious injuries, which were likely to impact on the reliability of his estimate.

Trial judge's finding not 'glaringly improbable' or 'contrary to compelling inferences'

I am far from satisfied that the trial judge's finding as to the deceased's speed was 'glaringly improbable' or 'contrary to compelling inferences'. In my view, it was well open to the trial judge to accept Mr Maddison's estimate as to the speed at which the deceased was travelling.
The appellant submits that the trial judge's finding as to the deceased's speed was not a credibility based finding and that this court should draw its own inferences and conclusions. I do not accept that submission. In my view, this is a case where the trial judge's factual findings 'are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence'.
In particular, the trial judge's finding is likely to have been affected by his impression of Mr Maddison's reliability gained from seeing and hearing him give evidence. Mr Maddison's tone and tempo (the degree or lack of hesitation in his answers), facial expression and body language would be capable of influencing the trial judge's assessment of his answers about speed, distance and time. This is not just a question of looking to the witnesses 'demeanour' to assess whether the witness is telling the truth (a process that is fraught with difficulty[126]). Ordinary spoken human communication proceeds from a combination of tone, tempo, gesture and facial expression. The judge in seeing and hearing the witness give oral evidence is able to perceive these aspects of the communication which the transcript cannot reveal. As Isaccs J observed in Dearman v Dearman:[127]
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal.
[126] See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [30] - [31].
[127] Dearman v Dearman (1908) 7 CLR 549, 561.
More recently, this court recognised that there may be subtleties in the way questions were asked (or avoided) that are apparent in the heat of battle but which are not quite as clear in a more clinical examination of a transcript.[128]
[128] Child and Adolescent Health Service v Mabior [2019] WASCA 151 [95], quoting Brett v Rees [2009] WASCA 159 [69].

Having found that Mr Maddison was in the best position to assess the speed at which the deceased was travelling, the primary judge accepted Mr Maddison's evidence.[241] In so doing his Honour observed that Mr Maddison's upper speed of 20 km per hour was not dissimilar to the deceased's lower estimation of speed of 25 km per hour.[242] The primary judge also made the observation, as is the subject of ground 5, which should be understood in the sense that a speed of 15 km per hour was one that could realistically be achieved by a 63‑year‑old recreational cyclist such as the deceased.[243]
[241] Primary reasons [137].
[242] Primary reasons [139].
[243] Primary reasons [140].
Mr Maddison's estimate was that the deceased's speed was 15 - 20 km per hour.[244] However, the primary judge's finding was that the deceased was 'probably travelling at a speed of approximately 15 km per hour … and no more than 20 km per hour'.[245] His Honour fixed on the lower speed rather than the range. No reasons were given for that apparent incongruity - one arising insofar as his Honour had earlier accepted Mr Maddison's evidence.[246]
[244] ts 123.
[245] Primary reasons [141].
[246] Primary reasons [137].
There are four other aspects of the primary judge's reasoning that should be mentioned.
First, as formed one of the central themes of the appellant's submissions on appeal, the primary judge did not address the apparent inconsistency between Mr Maddison's evidence as to estimate of speed and his (and Ms Staszewski's) estimates of time and distance leading to a higher inferred speed. His Honour did not seek to reconcile that evidence. We will return to this point later in these reasons.
Second, the primary judge said there was no evidence of the incline of Broome Street towards the roundabout along which the deceased was riding.[247] That is not quite correct. Photographs were tendered. These showed that in travelling in a northerly direction along Broome Street towards the intersection the deceased had the benefit of a slight downward slope.[248] However, the photographs are insufficient to form a considered view as to the degree of the downward incline. Nor was there any evidence, expert or otherwise, as to the likely consequences that the downward incline as evidenced by the photographs would have on the speed at which a cyclist such as the deceased might be able to travel.
[247] Primary reasons [124].
[248] GAB 299 - 300.
Third, the deceased's unsigned police statement also referred to the deceased as having a 'light wind' behind him.[249] The primary judge referred to this in the sense of repeating the contents of the statement.[250] No other mention was made of that particular aspect of the evidence.
[249] GAB 291 par 4.
[250] Primary reasons [17].
Fourth, at [129] ‑ [131] of the primary reasons his Honour considered what was meant by the deceased's description, at par 12 of his unsigned statement, that the deceased was 'trying to moderate' his speed so that he did not have to stop. His Honour concluded that the reference to moderating speed meant to adjust speed 'by reducing his speed'.[251] There is no difficulty if that passage is understood simply as the primary judge's interpretation of the passage in the deceased's statement. But it would be otherwise if it were a finding that in actual fact the deceased had slowed down. The uncontradicted evidence was that the deceased did not change speed.[252] Moreover, there was no need for the deceased to do so to deal with traffic to the right as there was no car before Mr Maddison's car.
[251] Primary reasons [131].
[252] ts 138.
When the primary judge's reasons are read as a whole, the passage at [131] should be understood in the first sense rather than as suggesting that his Honour was making a finding that the deceased had slowed down. Nowhere else is there any suggestion that the deceased had in fact slowed down to enter the roundabout. Nevertheless, the apparent error in par 12 of the deceased's unsigned police statement is a further indication that there are questions as to the reliability of the deceased's recollection of the circumstances of the accident.
On appeal the appellant did not seek to make anything of the primary judge's incorrect observation that there was no evidence as to the incline of Broome Street. The appellant was correct not to do so. Given the lack of specific evidence before the primary judge as to the degree of incline, and the possible effect on the deceased's speed, this court would have been in error to overturn the primary judge's factual finding by mere extrapolation from the photographs.[253] So too nothing of substance can be drawn from the additional evidence, not mentioned by the primary judge in coming to his conclusion as to speed, that the deceased had a light wind behind him.

Analysis and conclusion

[253] See eg Pledge v Roads and Traffic Authority [1(1)], [47].

In our opinion, a trial judge will generally have a significant advantage over an appellate court in evaluating the reliability of a witness' estimate of speed.
In this context the question of reliability is not merely one of the reliability of the witness. The issue is one of the reliability of the evidence itself - something that partially, but by no means exclusively, depends on the reliability of the witness. An estimate of speed involves an intuitive synthesis where the observer's reasons cannot always be fully communicated. Estimates of speed and distance are one of those established exceptions where a non-expert witness can give 'inferential evidence'.[254] So too estimates of time. Such evidence is admissible despite having the appearance of opinion evidence because it is evidence of direct observation which can only be described in the language of inference or conclusion. As explained in Sherrard v Jacob:
[T]he category in question includes instances in which the primary facts and the inferences to be drawn therefrom are so adherent or closely associated that it may be hard, if not impossible, to separate them. A witness may reach a conclusion on observation without being able to muster or recall, or it may be even to describe, all the facts which have united to produce that conclusion.[255]
[254] Sherrard v Jacob [1965] NI 151, 156 (approved in Gribisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524 [44]).
[255] Sherrard v Jacob (157).
In respect of such matters of common experience within the knowledge of ordinary people, the reception of such inferential evidence 'enables evidence to be conveniently summarised or distilled in common form which in practice could not reasonably be called for in all its multitudinous detail'.[256] Thus evidence of this nature is admissible, although involving inference and opinion, when it would be inconvenient, if not impossible, for the observer to separate his or her inference from the facts on which the inference is based.[257]
[256] Sherrard v Jacob (157).
[257] Sherrard v Jacob (157 - 158).
The primary judge had an advantage over this court in forming a general view as to the reliability of Mr Maddison as a witness in the usual way in which a trial judge has an advantage in evaluating the credibility and reliability of a witness who gives oral evidence. It is accepted that there is an advantage in seeing and hearing a witness. Mitchell JA has explained some of the reasons for this at [128] - [130] above. Seeing and hearing the witnesses also contributes to the trial judge's 'feel' of the case, which an appellate court cannot share from simply reading the transcript.
All the more so, in our opinion, a trial judge has a considerable advantage over an appellate court in evaluating the reliability of a witness' estimate of speed. The witness' evidence itself involves a matter of impression or judgment insofar as the witness estimates a particular speed. The trial judge's consideration of the reliability of the evidence involves him or her evaluating and forming a conclusion as to the soundness of the witness' inferential conclusion having regard to the other evidence (including the witness' observational position and any relevant experience in such estimation) and the witness' general reliability. Where, as here, there are competing estimates and various general statements as to speed, that too must be taken into account. For these reasons, so far as the estimation of speed is a matter of impression or judgment for the witnesses, the trial judge's finding is not simply one of drawing an inference from undisputed facts or primary facts as found.[258]
[258] cf Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551.
There were five categories of evidence that the appellant relied on in support of ground 6's complaint that the primary judge's finding as to speed was against the weight of the evidence, constituted an impermissible inference or was unreasonable (see [214] - [215] above).
We have considered the evidence as a whole and, in doing so, have evaluated the combined force of the matters on which the appellant relies. For ease of exposition, we will deal with them individually.
The medical records have already been considered. The more general statements of the deceased - as well of those of Mr Maddison and Ms Stazewski - are inconclusive. The primary judge's upper figure of 20 km per hour is 'going fast' or 'quite quickly' for a pushbike. So too that figure meets the general description of 'coming at speed' or 'quite swiftly'. The statement in the respondent's opening submissions for trial, as said to constitute an admission, goes no higher than what was said in the deceased's unsigned police statement. The deceased's inability to stop and avoid the collision does not provide any sound basis to impugn the primary judge's finding as to speed. There was no evidence, expert or otherwise, to the effect that a recreational cyclist of the approximate size, weight and age of the deceased should have been able to stop his bicycle within two to three seconds if he was travelling at 20 km per hour or slower. Having so addressed the bulk of the countervailing evidence relied on by the appellant, two aspects of the evidence remain for consideration: the deceased's own estimates (25 ‑ 30 km per hour) and the time and distance estimates of Mr Maddison and Ms Stazewski from which senior counsel for the appellant calculated inferred speeds of 30 ‑ 45 km per hour or 35 km per hour.
The primary judge preferred Mr Maddison's eyewitness estimation over that of the deceased, finding it to be more reliable. For the reasons already given, there was good reason to do so. The deceased's estimates were expressed in more equivocal terms and were potentially affected by his involvement in the collision. Also, in two aspects the deceased's recollection of the events of the collision, as set out in the unsigned police statement, were found to be incorrect.
In any event, as the primary judge noted,[259] the upper range of Mr Maddison's estimate (20 km per hour) broadly accorded with the lower range of the deceased's estimate ('around' a range commencing at 25 km per hour or 'somewhere' starting at 25 km per hour).
[259] Primary reasons [117].
We turn to the part of the appellant's argument which relied on Mr Maddison's and Ms Stazewski's estimates of time and distance resulting in the substantially higher inferred speeds. The appellant contended that, as far as Mr Maddison was concerned, this resulted in an inconsistency which demonstrated that Mr Maddison's estimate of speed was unreliable.[260]
[260] Appeal ts 5 - 12, 41.
We accept that the primary judge did not seek to reconcile this evidence, and the inferred speed, with Mr Maddison's estimate of speed. We are not satisfied that this bespeaks error on the part of the primary judge. On a fair reading of the primary reasons as a whole the primary judge was acutely aware of the issue that arose as to the reliability of the evidence before him as to the deceased's speed. His Honour accepted that estimations of speed were notoriously unreliable. So appreciating the inherent unreliability of such evidence, and having carefully considered Mr Maddison's and the deceased's respective reliability, the primary judge attended closely to the issues of reliability presented by the evidence as a whole.
We are, in any case, unable to accept that the evidence of time and distance - leading by calculation to a higher inferred speed - is, alone or in combination with the other matters on which the appellant relies, sufficient reason to reject the primary judge's finding as to speed based on Mr Maddison's direct evidence (a conclusion we reach having regard to the evidence as a whole including the five categories of evidence relied on by the appellant on appeal).
Evidence as to time and distance will often be difficult to state or estimate by direct recollection. The latter may sometimes be dealt with by forensic reconstruction. That was not attempted in the present case. The appellant sought to place some store on the plans that were introduced into evidence.[261] While these contained a scale it was accepted that there was no positive evidence to substantiate that the plan was an accurate depiction.[262] As Mitchell JA's reasons show, the only measured part of the plan was the 12 metres between the commencement of the roundabout (in proceeding in an easterly direction along Eric Street) to the rear of the final stopping position of the appellant's car following the collision (see at [119] - [123] above). The accuracy of the remainder of the plans was not the subject of evidence. The only material evidence as to distance was that elicited from Mr Maddison and Ms Staszewski.
[261] GAB 295 - 297.
[262] Appeal ts 96.
Senior counsel for the appellant made the submission that as a matter of ordinary experience it was easier for witnesses to recount observations as to bare data - such as time and distance - than to make a compound assessment of speed.[263] That submission assumes that an observer's assessment of speed of a vehicle or bicycle is compound in nature. We do not accept that premise. Further, to the extent that attention is to be directed to what might be expected of an ordinary road user, we agree with what Mitchell JA has said at [115] above. To our mind, however, of more significance for the present case than broad generalisations was Mr Maddison's ability to give accurate and reliable estimates of time, distance and speed (and, to a lesser extent, Ms Staszewski's ability to give accurate and reliable estimates of time and distance).
[263] Appeal ts 14 - 15.
Whether either witness was more capable of making an accurate and reliable estimate of time and distance, as opposed to speed, was not directly explored in the evidence before the primary judge. In the case of Mr Maddison it can be inferred, from the terms in which he expressed his estimates, that, from his perspective, the contention advanced by senior counsel for the appellant does not hold good. Mr Maddison estimated the deceased's speed in unequivocal and unqualified terms.[264] By contrast Mr Maddison's evidence as to time and distance was hedged in terms of 'maybe',[265] 'maybe … maybe a little bit more. I'm not sure'[266] and a 'rough guess',[267] 'roughly'[268] or 'rough figures'.[269]
[264] ts 123.
[265] ts 136 (as to time).
[266] ts 136 (as to distance).
[267] ts 139 (as to distance - 20 or 25 metres).
[268] ts 139 (as to distance).
[269] ts 140 (as to time and distance).
It is also relevant that, while Mr Maddison was able to give an estimate as to the deceased's speed in unequivocal and unqualified terms,[270] he expressed himself as being unable to estimate the appellant's speed.[271] A feature of the evidence before the primary judge is that neither party's counsel explored the basis for Mr Maddison's unequivocal and unqualified estimate of speed. No doubt, for the respondent, this was a sound forensic decision. But it was open to the appellant to examine by questions, without infringing the prohibition on cross‑examining one's own witness, the basis for Mr Maddison's inferential conclusion, his degree of confidence in the estimate and what experience, if any, he had in estimating speed. In the absence of any such questioning the apparently discerning evidence of Mr Maddison takes on an added dimension of reliability.
[270] ts 122.
[271] ts 142.
We are not persuaded that the appellant's inferred speed calculations have sufficient weight to sustain appellate interference with the primary judge's finding as to speed based on his Honour's acceptance of Mr Maddison's estimate. The inferred speed calculations suffer from the imprecision in the witness' evidence as to time and distance. The calculations are highly dependent on accuracy as to time. For example, to take Mr Maddison's estimate, let it be assumed that the distance was 25 metres but that the time between first observation and collision was 3.5 seconds (only half a second more than Mr Maddison's two or three seconds 'maybe'). The inferred speed is then in the order of 26 km per hour. At four seconds the inferred speed is 22.5 km per hour. The inferred speed also falls if the distance has been overestimated. At 20 metres and 4 seconds the speed becomes 18 km per hour. The uncertainties in both distance and time are capable of having a compounding effect.
The analysis urged by the appellant involves an unjustified reliance on calculations which depend on variables which are imprecise and which were hedged with qualification by the witnesses. In other contexts the High Court has commented on the difficulties of such calculations.[272] In Pledge v Roads and Traffic Authority the High Court considered the Court of Appeal in New South Wales to be in error in overturning a finding at first instance in reliance on time, speed and distance calculations that involved so many imponderables as to make the calculations little more than speculation. In that case it was said to be not irrelevant that the calculations in question were not sought to be made during the trial where the assumptions on which they were based could have been fully tested and explored.[273] In some respects, the position in the present case is not dissimilar. Neither Mr Maddison nor Ms Staszewski were taken to an inferred speed calculation and asked to consider their evidence in light of the calculation. The calculations were not fully tested and explored in evidence before the primary judge.
[272] See eg Public Transport Commission (NSW) v Perry [1977] HCA 32; (1977) 137 CLR 107, 114 - 115; Fox v Percy [149]; Pledge v Roads and Traffic Authority [1(2)], [48].
[273] Pledge v Roads and Traffic Authority [48].
Obviously, each case must depend on the evidence and facts before the court in that case. On the evidence in this case we are not satisfied that the calculated inferred speeds - and their inconsistency with Mr Maddison's estimate of 15 ‑ 20 km per hour - provides an adequate basis to uphold the challenge to the primary judge's finding as to the deceased's speed. In part that is due to the advantage that the primary judge enjoyed as trial judge. In part it is due to the apparent reliability, on our assessment of the evidence, of Mr Maddison's estimate of speed in comparison to the other evidence on which the appellant relied. In part it is due to the limited weight that can be given to the calculations given the imprecise foundation on which they are based.
Mitchell JA has concluded that, in the circumstances of this case, the challenge to the primary judge's finding as to the deceased's speed attracts the standard of appellate review identified in Robinson Helicopter Co Inc v McDermott.[274]
[274] See Mitchell JA's reasons for decision at [132] above.
We consider that will not necessarily be the case for every finding based on evidence as to estimates of speed. In this case, however, the finding at first instance was grounded in the primary judge's conclusion that Mr Maddison's evidence was reliable after his Honour reminded himself that such evidence was notoriously unreliable and his Honour then proceeded to conduct a painstaking review of the reliability of the evidence touching on speed. The primary judge had the benefit of seeing and hearing Mr Maddison give evidence. His Honour was in a position to be able to compare Mr Maddison's reliability in giving his inferential evidence as to speed - thereby being better able to evaluate Mr Maddison's impression and judgment as to the deceased's speed as conveyed by his evidence - and juxtapose that with Mr Maddison's more qualified evidence as to time and distance and complete inability to make an estimate as to the speed of the appellant.

In these circumstances we too would apply Robinson Helicopter Co Inc v McDermott and employ the sort of standards discussed in [207] above in assessing ground 6. Even if, contrary to that conclusion, the finding ought not attract the same high degree of appellate restraint accorded to a credibility finding, the matters we have referred to demand that the proper weight to be accorded to the primary judge's advantage is considerable. In either case, for the reasons we have given, we are not satisfied that the appellant has demonstrated error in terms of ground 6.
Whether the primary judge's finding was in error depends on whether it should have been held that the deceased's speed in entering the roundabout exceeded 20 km per hour. The primary judge accepted that Mr Maddison's estimate of 15 ‑ 20 km per hour was reliable. For the reasons we have given above the finding as to the deceased's speed has not been shown to be wrong by reference to incontrovertible facts or uncontested testimony. Nor is it glaringly improbable or contrary to compelling inferences. There is nothing to suggest that the primary judge failed to use or misused his advantage as trial judge. Based on our review of the evidence and examination of the primary reasons we do not accept that the primary judge's finding was wrong having regard to the subject matter of the conclusion and the advantages enjoyed by the primary judge over this court.
There is one further minor matter that should be mentioned.
Having accepted Mr Maddison's evidence, the primary judge should have expressed his ultimate conclusion as to the speed at which the deceased entered the roundabout conformably with that evidence. The primary judge did not do so in stating that the deceased was probably travelling at a speed of 15 km per hour, when Mr Maddison expressed the deceased's speed by reference to a range starting at 15 km per hour. However, identifying error is concerned with substance not verbal semantics. In circumstances where, in closing submissions, the appellant accepted that a speed less than 25 km per hour was a safe speed that was not excessive in the circumstances of the accident,[275] his Honour's factual conclusion of substance was that the deceased was travelling at a speed of no more than 20 km per hour. That was the finding as expressed at [141] of the primary reasons - a conclusion that was in keeping with Mr Maddison's evidence as accepted by the primary judge.
[275] ts 309 - 310.
The primary judge was not in error in finding that the deceased was travelling at no more than 20 km per hour as he entered the roundabout. Ground 6 should be dismissed.

The remaining grounds of appeal

Ground 6A challenged the finding that the appellant entered the intersection after the deceased. However, as expressed, ground 6A only did so if ground 6 was upheld. As we would dismiss ground 6, ground 6A also fails.
In any case, against the eventuality that ground 6 was upheld, the respondent argued that the impugned finding did not solely depend on the primary judge's finding as to the speed that the deceased was travelling at as there was stand-alone evidence to support that finding.[276] We accept that submission for the reasons that Mitchell JA gives at [139] - [145] above. Ground 6A should also be dismissed for those reasons.
[276] Appeal ts 77 - 79.
Senior counsel for the appellant accepted that if the appellant did not succeed on ground 6 then she could not succeed on grounds 8 or 9.[277] Grounds 8 and 9 thus fall with ground 6.
[277] Appeal ts 62 - 66.
Moreover, for the reasons given by Mitchell JA at [169] ‑ [177] and [180] ‑ [191] above, even had ground 6 succeeded to the extent that the proper finding was a speed of around 25 km per hour, we would not find contributory negligence on the part of the deceased. In further answer to senior counsel for the appellant's submission that a reasonable cyclist in the deceased's position, going through the roundabout, would stand ready for the appellant's car to come out at any time we would also refer to what was said by Newnes JA in Wensink v Marshall (although here we would substitute 'cyclist' for driver' with all necessary consequential changes):
[I]t is clear that the exercise of reasonable care does not require a driver to drive in such a way as to be in a position at all times to anticipate anything that a pedestrian or another motorist might do, or to be in a position to reduce the speed of their vehicle to a level which will avoid any risk of collision.[278] (emphasis added)
[278] Wensink v Marshall [2010] WASCA 117; (2010) 56 MVR 20 [54] (to be read with [53]). See also Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 [13] - [14].
It follows that the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell
8 APRIL 2020