Leapai v Flegg
[2020] ACTMC 19
•4 September 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Leapai v Flegg & Ors |
Citation: | [2020] ACTMC 19 |
Hearing Date(s): | 18 – 20 November 2019 |
DecisionDate: | 4 September 2020 |
Before: | Magistrate Stewart |
Decision: | See [251]. |
Catchwords: | CIVIL LAW – PERSONAL INJURY – DAMAGES - car and bicycle collision – whether defendants breached their duty of care to the plaintiff – learner driver and instructor – failure to keep proper lookout - calculation of damages – claim of contributory negligence - contributory negligence of children |
| Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss42, 43, 45, 46, 102 Evidence Act 2011 (ACT) ss136 |
Cases Cited: | Browne v Dunn (1893) 6 R 67 Evers v Bennett (1982) 31 SASR 228 Goldsmith v Bisset (No 3) [2015] NSWSC 634 Griffiths v Kerkemeyer [1977] HCA 45; CLR 161; 51 ALJR; 15 ALR 387 Johnson v Hahn (Unreported) Supreme Court of South Australia 153 of 1979. Jones v Dunkel (1959) 101 CLR 298 Lee v McGrath [2018] ACTSC 173 Lynch v Nurdin [1841] EngR 52; (1941) 1 QB 29 (113 ER 1041) McHale v Watson (1964) 111 CLR 384 Nouri v Australian Capital Territory [2018] ACTSC 275 Pennington v Norris (1956) 96 CLR 10 Pollard-Lonergan v Goodman [2000] SADC 110 (31 August 2000) Seseljia v Reardon [2020] ACTSC 167 Verryt v Schoup [2015] NSWCA 128 Warren v Coombs & Anor (1979) 142 CLR 531 |
Parties: | Ron Leapai (Plaintiff) Tian Flegg (1st Defendant) Yasir Khan (2nd Defendant) Insurance Australia Limited Trading (3rd Defendant) |
Representation: | Counsel Mr Muller (Plaintiff) Mr Fitzsimmons SC (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (Defendants) | |
File Number(s): | CS 262 of 2018 |
MAGISTRATE STEWART:
Introduction
The plaintiff, Ron Leapai, claims that as a 17-year-old he suffered physical injuries and psychological effects as a result of a collision between a car and his bicycle on 17 September 2015. He claims that the bicycle he was riding had just come to a halt on his driveway when the front wheel was struck by a car being driven by the first defendant. The first defendant was a learner driver being instructed by the second defendant who was a licensed driving instructor at the time.
It is not in dispute that the car being driven by the first defendant came into contact with the plaintiff’s bicycle and that this caused the injury to his ankle. The defendants’ case was that the plaintiff rode onto the road and that the defendants did not breach a duty of care. The defendants’ case in the alternative was that the plaintiff caused or contributed by way of negligence to his (unadmitted) loss or damage.
The issues for determination are the physical location of the impact, the location of the bicycle and car on impact, whether any party failed in their duty of care, whether there was any contributory negligence and what the quantum (if any) of damages should be.
If it had been possible, I would have included a photograph of the profile of the gutter and driveway that was the scene of the collision. The street on which the collision occurred does not have the usual gutter that is seen on many suburban streets. The road surface on Keverstone Street is bitumen. The gutter is made of concrete and might be described as a ‘layback’ gutter. Neither party produced dimensions of the width of each part of the gutter.
The gutter is on two planes – a narrow horizontal plane that abuts the bitumen and then a wider, slightly angled incline leading up to the grass nature strip/footpath. This incline enables the gutter to be negotiated by cars – for example a car could be driven up the layback gutter to allow for parking on the grass area if that was allowed.
The gutter does not change in profile for the driveway of 101 Keverstone Circuit. Thus, unlike other gutters in other streets, it does not dip away towards the earth to allow for entry into the driveway. The driveway is concrete and very slightly sloping away from the road and gutter. There is a rubber expansion joint between the inclined part of the gutter and the driveway.
Scope of the dispute
The evidence in the plaintiff’s case comprises the oral testimony of the plaintiff, his partner’s mother Melissa McCoy, an independent neighbour Krystal Reardon and his partner Rebekah McCoy. It also includes the admissible portions of the reports of Mr Allan Joy who is a traffic engineer investigator; Dr Gray, a consultant orthopaedic surgeon and the tendered reports of Dr Stokes – a consultant orthopaedic surgeon retained by the defendants’ solicitors.
The evidence in the defendants’ case comprises the oral testimony of the first and second defendants.
Witness evidence
Ron Leapai
On the date of the accident on 17 September 2015 the plaintiff was 17 years old, studying at Erindale College in the ACT and living with his parents at 101 Keverstone Circuit Isabella Plains. He is of Samoan descent and as a teenager he had played several sports in New Zealand and Australia before participating in the rugby league program at his college.
In 2015 he played rugby league both for his college team and for the Canberra Raiders SG Ball side, before finishing the season in about July of that year.
In the months immediately prior to the accident, he had received offers from various rugby league clubs.
In September 2015, the plaintiff received an offer from Melbourne Storm:
(a)The plaintiff had spoken to Matt Adamson from Melbourne Storm. Mr Adamson had travelled from interstate to discuss the opportunity with the plaintiff and “physically handed” the contract to him. [1]
(b)Mr Adamson offered the plaintiff a ‘chance’ to play for the Melbourne Storm Under 20’s team. The plaintiff stated that they discussed how he would initially play on a New Zealand tour, and then commence preseason training in November of that year.
(c)Details of remuneration were included in the contract.
(d)The plaintiff did not have a copy of the contract to present to the court.
(e)The plaintiff stated that he did not play any games for the Melbourne Storm under 20’s team, due to the accident.
On 17 September 2015, the date of the accident, the plaintiff received an offer from the Canberra Raiders rugby league club.
(a)The plaintiff stated that about a week prior to the accident, he had a conversation with Dean Souter and Mr Howe from the Canberra Raiders club.
(b)The plaintiff was in possession of a copy of that contract. [2]
(c)The plaintiff stated that he was considering the offer, but was unable to take it up, or sign the contract of offer due to the accident. [3]
In cross-examination, the plaintiff stated that as at the time of the accident on 17 September 2015, he had not decided which of the two contracts he would accept. [4]
The plaintiff understood that whichever of the two contracts he would accept, the rugby league club would assist him in obtaining work. [5] He had not otherwise contemplated or arranged for employment upon his completion of year 12.
In cross-examination, the plaintiff agreed that as at the time of the accident 17 September 2015, he had not played rugby league professionally. As at the time of the accident, the plaintiff was not under a professional contract. [6]
The plaintiff stated that at the time of the accident he was healthy, strong, a previous wrist injury had healed, and he was “ready to play football.” [7]
On 17 September 2015 the plaintiff had returned from school, was watching television, and had been instructed by his father to go outside to look after his younger brother. The plaintiff stated that both he and his brother were riding their bicycles around the driveway. He was riding a mountain bicycle with rear and front brakes that were engaged by levers on the handlebars and were in perfect working order.
The plaintiff stated that he was riding down the driveway only (and therefore not onto the road) with his brother following, turning at the end of the driveway, and riding all the way back up, which he estimated was about 40 meters long.
He estimated that there were about six young (aged about twelve years) friends of his brother playing in the area at that time. Those young people wanted to race and were racing each other around the cul-de-sac which was across the road from the plaintiff’s house, while the plaintiff and his brother remained on their driveway.
A conversation took place while the other young people were in the cul-de-sac and the plaintiff and his brother were on the driveway. Each agreed to have a race. He said that neither he nor his brother at any point rode their bicycles beyond their driveway.
The plaintiff gave evidence that on his last time riding down the driveway prior to the accident he started from the far end of the driveway in front of his house, and pedalled along about half the length of the flat part of the driveway towards the street end on Keverstone Circuit. The plaintiff stated that he intended to stop on the driveway.
In cross examination, the plaintiff stated that the race was structured as a “lap.” [8] He started at the end of the driveway, closest to the road, raced to the top of the driveway, closest to the house, and completed the lap back at the end of the driveway.
The finishing point for the plaintiff’s lap of the race was at was the rubber strip in photograph 3 of Exhibit 2.
He stopped pedalling halfway down the driveway, cruised along waiting to brake, applied the brakes and then skidded about 30 to 40 centimetres before coming to a stop. The plaintiff said the bicycle’s rear wheel left a mark on the driveway as he stopped. This mark was about a bicycle length from the end of the driveway, and the plaintiff stated that at the time he stopped his front wheel was at the last flat part of the driveway. [9]
As he took the last journey down the driveway he did not see or hear any cars in his vicinity but became aware of a learner driver coming from his right side a “split second” before the car collided with him. [10]
The plaintiff gave evidence that he was stationary for a split second before the collision occurred and stated that he had not moved from the position where he had stopped at the time of the collision.
Throughout cross-examination, the plaintiff maintained that his bicycle did not ever cross onto the bitumen section of the road. He also maintained that he was stationary and had been for a “split second” prior to the impact. [11]
The plaintiff gave evidence that the front left corner of the car hit him on his right side, as his right foot was positioned on the pedal, halfway up and ready to pedal. He was knocked over and fell to his left. The plaintiff stated that he was in shock, initially attempted to get up but stumbled over, and could not feel his right ankle. [12]
Soon after, the plaintiff stated that felt pain in his right angle which was “in agony.” [13]
He looked at his bicycle and picked it up and was unable to roll it back up the driveway or ride it again but did not take full notice of the damage as he was in shock.
Both a learner driver (the first defendant) and driving instructor (second defendant) got out of the car. The learner driver said only “I’m sorry.” [14]
The plaintiff stated that only thing said by the instructor was that Mr Leapai, the plaintiff was at fault. He could not recall saying anything in reply.
The plaintiff’s neighbour, Ms Crystal Reardon, then came out to the scene and asked if he was alright, before having a conversation with the instructor. The plaintiff recalled that Ms Reardon had said to the instructor that it was his fault but could not remember the words used by the instructor.
The plaintiff returned to his house and relayed the events to his father, who took him to the hospital.
At the hospital, the plaintiff underwent tests and was instructed to return a few days later. The plaintiff then had an operation involving fixings being attached to his ankle, plaster cast applied to his leg and crutches provided. At some point about six weeks later, when the plaintiff was able to bear weight on the ankle, the plaster cast was replaced with a “moon boot.”
For the first six weeks after surgery the ankle was swollen and sore and the plaintiff was unable to do much with it. He attended school using crutches, was careful not to let anything hit his ankle and was assisted by his family and friends. He had previously been able to walk to and from school but after the accident required a lift from his mother and father who would swap working mornings and evenings to drive him, and regularly drove him to appointments.
He was unable to play any sport in that time and felt devasted. The plaintiff said it was “one of the worst days of [his] life.” [15]
Once the plaster cast was removed and a moon boot placed on his leg the plaintiff commenced physiotherapy and other treatment for about six weeks. He also saw his GP from time to time if he was in pain and took medication.
He commenced a relationship with Ms Rebekah McCoy in October 2015. His parents returned to live in New Zealand in November 2015, and he commenced living with Rebekah and her family.
Just prior to Christmas in December 2015, the plaintiff had a second operation to remove screws that had broken in his ankle. After the second operation he again required crutches and was unable to bear weight on his right foot for about another six weeks. The plaintiff continued with physiotherapy at that time, some of which was organised by the Canberra Raiders Club. The plaintiff also used the Club HQ gym for supervised training programs until he was able to play football again in April 2016 when he returned to play for the Woden Rams, a local club.
Prior to the accident, the plaintiff had never needed to strap his right ankle to train or play football. Following the accident in 2015, the plaintiff required his ankle to be “heavily strapped” for all games and training sessions. [16] The plaintiff still required strapping in his ankle at the time of hearing, in November 2019.
Subsequently to the September 2015 accident, the plaintiff suffered from unrelated injuries, each of which, the plaintiff claims to have fully recovered from. [17]
Following the first surgery to his injured ankle, the plaintiff stated that he needed assistance with a myriad of tasks including showering, home tasks such as laundry, and transportation to and from appointments and school.
The plaintiff received assistance in those tasks from his parents, his girlfriend and her family.
This assistance was required for about six weeks following the first surgery, and six weeks again following the second surgery.
On 7 April 2016, after the second operation to his ankle, the plaintiff commenced casual employment with an excavation company named Paragalli.
(a)He worked 40 – 50 hours per week, earning approximately $860 per week.
(b)In cross-examination, the plaintiff stated that his base hours were 40 hours per week, and overtime was a regular occurrence in this role, frequently working ten hour days. [18]
(c)His role included driving and walking on uneven surfaces frequently. [19]
(d)The plaintiff stated that his right ankle would become stiff at times during this work and that he would need to walk and keep moving to prevent the stiffness.
(e)The plaintiff gave evidence that in 2017 he suffered from weakness when walking on uneven surfaces, and stiffness or the ankle locking up, especially in the cold. This required the plaintiff to perform ankle exercises every 2 hours. [20]
On 27 April 2016 the plaintiff signed a contract with the Canberra Raiders Under 20’s team.
(a)Between the time of the initial Canberra Raider’s Contract in September 2015, and the April 2016 contract, the plaintiff missed approximately three to four trial games and six playing games due to this ankle injury. He estimated that he had also missed approximately six games in the 2016 season, prior to signing the contract in April 2016.
(b) In the 27 April 2016 contract remuneration for match payments was $200.
(c) At the time of signing the 2016 contract, Dean Souter set out that that the plaintiff would only receive match payments.
In April 2018, the plaintiff commenced a carpentry apprenticeship with Aspect Building Projects. [21]
(a)During 2018, as a first-year apprentice, the plaintiff was paid $13.10/ hour.
(b)During 2019, as a second-year apprentice, the plaintiff was paid $16.30/ hour.
(c)In this role, the plaintiff was required to perform physical tasks such as climbing ladders, carrying tools, carrying materials such as timber.
(d)The plaintiff stated that he needed to stop every two hours in this role and perform his ankle exercises to avoid stiffness. [22]
In 2018, the plaintiff played for the under 23’s Country representative side in rugby league, in Papua New Guinea. [23]
As at November 2019, the plaintiff stated that he was due to commence a seven-month contract to play rugby league in France in December 2019.
(a)The plaintiff stated that the remuneration for that contract was approximately €1800 / month. [24]
(b)The plaintiff intended to extend that contract for approximately two to three years.
(c)The plaintiff signed that contract in October 2019. The contract is written in French. [25]
Under cross-examination, the plaintiff stated to Dr Stokes that he was unable to accept an offer of contract from Tweed Heads, a feeder club to the Queensland Titans, due to his injuries. [26]
The plaintiff stated that he was able to perform light duties throughout his employment upon each of his separate injuries including:
(a)2017 broken hand, sprained left ankle and toe; and
(b)2018 ACL knee reconstruction.
The plaintiff accepted that descriptions in terms of “powerful,” “explosive,” and “fast” as a forward player were fair descriptions of his playing abilities. [27]
Melissa McCoy
Melissa McCoy is the mother of the plaintiff’s partner, Rebekah McCoy.
The plaintiff commenced living with Ms McCoy and her family at the end of 2015.
Ms McCoy met the plaintiff following the accident and stated that he used a moon boot from the time they met, until his subsequent surgery.
In the time before the second surgery, Ms McCoy assisted the plaintiff with transportation to appointments, facilitation of obtaining his driver’s license, and treatment of his pain and swelling with ice. Ms McCoy stated that she observed the plaintiff suffering emotionally from the impacts of the accident, including:
He would have down times when – especially when he – when they had gone – started pre-training for the next season and he would talk to, you know, his mates and they were back in pre-training, all in pre-training getting ready and he wasn’t there. He was missing out and, you know, he obviously – that’s where he wanted to be and he wasn’t, he was stuck at home. He couldn’t do anything. [28]
Ms McCoy stated that she rarely misses a game that the plaintiff now plays and has noticed on occasion him complain or “wriggle” his ankle. [29] She gave evidence of a time when the plaintiff was strapped in a different way, and he reported to her a difference in stability for his ankle.
Ms McCoy estimated that from the time of his residence at her home, she would spend approximately four to six hours several times a week to transport the plaintiff to his various appointments. This included taking time off work, travelling to pick up the plaintiff, attending the appointment, transporting the plaintiff home and returning to work. This occurred until approximately August 2016. Once the plaintiff obtained his provisional driver’s license, Ms McCoy would still attend appointments.
Krystal Reardon
Ms Reardon’s residence as at 17 September 2015 was a neighbouring residence to the plaintiff’s home.
Ms Reardon took part in an interview with an investigator in December 2016.
Ms Reardon witnessed the collision as she sat in her loungeroom, she stated that she had “perfect vision of the road and the driveway.” [30] Ms Reardon estimated that from her position she could see the length of the driveway for approximately eight or nine metres.
Ms Reardon did not see anything on the roadway that would have obstructed the view of the driver. [31]
Ms Reardon spoke to the driving instructor following the collision and stated that the instructor:
“Seemed agitated and forceful in his view that the bicycle was at fault and that the bicycle had gone onto the road.” [32]
She observed the plaintiff to look like he was in a lot of pain and perhaps shock.
Rebekah McCoy
Rebekah McCoy is the partner of the plaintiff, having commenced a relationship with him in the months after the 2015 accident.
Ms Rebekah McCoy gave evidence of the assistance she provided to the plaintiff following the accident including tending to his laundry, showering, meals, and care of his injury with ice and elevation. She increased her level of care following the second surgery and this lasted for approximately two months.
She stated that observed the plaintiff struggling emotionally. She had observed the plaintiff crying, moody, in pain and not sleeping.
The plaintiff had stated to her words to the effect of:
“Why me? Why did this happen to me? I just had… the world at my feet.” [33]
She stated that she has observed the plaintiff to be much happier now that he is able to play rugby again. She stated that physically, he was not back to how he was prior to the accident.
Yusuf Khan
Mr Khan is the second defendant and was the driving instructor at the time of the accident in September 2015.
He received his driver instructing accreditation in late 2013. As of June 2015, he was working full-time as a driving instructor with Pinnacle Driving School. He also worked at this time as a taxi-driver.
He used his own car for the purposes of being a driving instructor and had purchased the car in 2013, a second-hand 2012 model. Dual controls had been installed in the car for driver instructing purposes that same year.
In order to obtain accreditation as a driving instructor, it was a requirement that dual controls be installed first.
He explained to the Court that the dual control mechanisms were essentially an additional brake pedal and accelerator on the passenger’s side of the car. The second defendant stated that he utilised the dual controls in emergency or critical situations, and otherwise the driving student “mainly” has control of the car. [34]
The second defendant was instructing the first defendant, Mr Flegg, for the first time on the date of the accident.
He arrived at the first defendant’s house for the lesson and the first defendant sat in the driver seat.
They discussed general driving and car safety, and he discussed with the first defendant the use of the dual controls if required. He explained that if need be, he would intervene and use the brake and accelerator dual control or assist with steering by reaching over to the driver’s side.
They commenced the driving lesson and travelled from the first defendant’s residence at 39 Keverstone Circuit towards the plaintiff’s residence at 101 Keverstone Circuit.
He could not recall whether the incident occurred after several laps, or on the first lap of Keverstone Circuit.
Following the collision, both he and the first defendant exited the car and checked on the plaintiff who “stood up straightaway.” [35]
He inquired about the plaintiff’s parents, to which the plaintiff responded that they were not home, and no contact details were exchanged. The second defendant phoned the police and subsequently dropped the first defendant home before attending Woden Police Station to report the incident.
Tian Flegg
Mr Flegg was the learner driver involved in the accident on 15 September 2015 and is the first defendant.
He stated that his lesson with second defendant, Mr Khan, that date was his first time driving, and that he had obtained his driver’s license approximately six months prior.
He had completed two or three circuits of Keverstone Circuit before the accident occurred. He had been driving for approximately 15 to 20 minutes before the collision. He could not recall seeing any children riding bicycles in the street prior to the accident, though he accepted as a usual resident of that street, he was aware of the frequent presence of children and families around Keverstone Circuit.
Medical evidence
The experts who provided reports were not called. The plaintiff tendered a bundle at Exhibit 6 which continued the 14 November 2017 report of Dr Peter Gray who is an orthopaedic surgeon.
The plaintiff’s injuries have largely resolved after two bouts of surgery on 20 September 2015 and 22 December 2015. The current status at the time of the report was that Mr Leapai had regained full use of his ankle other than feeling instability when walking on uneven ground and occasionally rolling his ankle when doing so. His ankle also stiffened after prolonged sitting and took a number of steps to free up. The surgery had left a 3 cm surgical scar on the plaintiff’s ankle.
In terms of playing football the report indicates that the ankle was being strapped for protection. I note that this relies on a hearsay answer from the patient – but this issue seems to have been not in dispute in the hearing and formed a part of the defence case.
Dr Gray gave the following opinions at page 8 of his report:
“…because of the possibility of articular cartilage in jury at the time of the accident, there is a future risk of Mr Leapai developing osteoarthritis within the ankle joint. However, such changes are unlikely to occur in the short to intermediate term and the longer term is many decades hence.”
And:
“As stated above, there is a possibility of developing osteoarthritis of the right ankle in the longer term well after his rugby league career has finished. Should he develop ankle osteoarthritis into the distant future this would have an impact on his ability to continue to work as a plant operator.”
The plaintiff tendered two reports obtained by the defendants as Exhibit 10. These were the reports of consultant orthopaedic surgeon Dr Ian Stokes dated 20 December 2017 and 04 June 2019.
Dr Stokes noted in 2017 that the plaintiff experienced ankle instability if walking on uneven ground and a rolling sensation if not wearing supportive footwear. He also confirmed the need for a very particular type of strapping to the ankle to play football, discomfort on uneven surfaces and a thickening of the ankle due to scar tissue.
Dr Stokes confirmed the presence of a screw fragment deep in the fibula. He noted the presence of a 2.0 cm scar and 2.0 mm scar from the surgeries.
He noted that there was still a slight thickening of the ankle. Some restriction of movement was noted. The plaintiff lacked 5 per cent of ankle extension and 5 per cent of plantar flexion when compared to his left ankle.
Dr Stokes very helpfully set out the following at page 7 of his first report:
“The original X-ray in the Canberra Hospital just identified a fractured fibula; however, this injury is much more than just a fractured fibula. According to the medical records an image intensifier was used in theatres and an examination was performed under anaesthetic. That examination was visualised on the image intensifier to show that there was a syndesmosis injury allowing talar shift within the ankle mortise. It needs to be understood that this injury complex involving not only ta fractured fibula but associated disruption to the syndesmosis ligaments between the fibula and the tibula but associated significant injury than that conveyed by the diagnosis of a fractured fibula. The seriousness of the injury was noted by the orthopaedic surgeon involved, hence the surgical treatment of using interfragmentary screws to oppose the fibula back to the tibia in order to promote healing of the syndesmosis. These interfragmentary screws lock the talus. The patient is usually kept immobilised in either a plaster cast or a moon boot for a prolonged period of time until it is assumed that the syndesmosis is healed. It is true that on occasions these screws can and do break such as the case with Mr Leapai. The screws were removed in December of that same year. Those screws required two incisions to remove the fragments and I am led to believe that one fragment remains within the bony confines of the fibula.”
I note that there was no cross-examination of the plaintiff by senior counsel on any of the contents of that paragraph. On that basis and given that it was a report procured by the defendants I take the above opinion as accepted by the defendants. It is directly relevant to general damages should they arise.
Dr Stokes opined the following about the plaintiff’s long-term prognosis at page 8 of his 2017 report:
“In my opinion the significant syndesmosis injury to an ankle does make that ankle more likely to develop posttraumatic change (osteoarthritis) at some point in the future…
Although the prognosis in the short to medium term is quite good, the long-term prognosis is somewhat guarded. As I have stated above, there is a significant risk that he may develop posttraumatic osteoarthritic change to the ankle that would result in increasing stiffness within eth ankle and increasing pain. Such disability in a young person is usually managed by ankle fusion.”
The defendants received a second report from Dr Stokes on 04 June 2019. The plaintiff reported that there were no episodes of instability of the ankle and that it was strapped when training for or playing sport. The plaintiff noted that his ankle gave more discomfort in colder months and that he was treating that by using woollen socks. He was not looking forward to the onset of winter.
Dr Stokes re-examined the plaintiff’s right ankle and reported that his findings were similar to those he reported in 2017. Minor restrictions of movement as far as dorsiflexion and plantar flexion were noted. The 5% loss of right ankle extension and flexion remained when compared to the plaintiff’s left ankle.
The ankle was clinically stable and no irritability was noted.
Dr Stokes repeated his long-term prognosis of the likelihood of posttraumatic osteoarthritis in the years ahead. He opined at page 8:
“Osteoarthritis manifest itself as an increasing restriction of movement and increasing pain along with dysfunction. The current treatment for such a malady is ankle fusion.”
At page 10 Dr Stokes answered a question from the defendants’ solicitors “How will ongoing accident-caused conditions and disabilities affect the plaintiff’s: (a) Capacity for work and/or to play professional rugby” Dr Stokes’ opinion was as follows:
“In my opinion Mr Leapai’s right ankle injury will not interfere with his capacity for work as he is (sic) well and truly demonstrated over the last couple of years. As I have stated earlier in this report should he develop posttraumatic osteoarthritis of the ankle than that condition could limit his capacity to work in the building industry. The onset of significant debilitating posttraumatic osteoarthritis is difficult to predict. On the balance of probability, it would be hoped that Mr Leapai would not be troubled over the next 15 plus years.”
Given the plaintiff’s age, “15 plus years” translates to a good prognosis only into his late 30’s.
Report of Alan Joy Traffic Engineer Investigator
Mr Joy’s report dated 10 May 2019 was tendered by the plaintiff as part of Exhibit 7.
The instructions provided to Mr Joy were slightly different to the evidence of the plaintiff at hearing. They included instructions that he brought his bicycle to a halt at the end of his driveway and was struck by the car being driven by the defendants. Further instructions at page 12 included:
“Immediately prior to the collision Mr Leapai rode along the driveway towards the roadway and brought his bicycle to a stop with the front wheel near but not over the gutter. He then stood astride the bicycle. While he was in that position the Hyundai travelled in a north-west bound direction on Keverstone Circuit and as it did so it travelled up the gutter.”
The plaintiff gave evidence that when he stopped, his right foot was ready to pedal and ready to push off. [36]
The opinion on page 16 headed “Collision Configuration and Dynamics” is informative:
9.19The available evidence indicates that the approach paths of the bicycle and the Hyundai were initially at approximately 90 degrees to one another, generally consistent with the alignment of the driveway and the roadway.
9.20Based upon the reported damage on the front bumper bar and bonnet of the Hyundai and the damage to its left exterior rear vision mirror, together with the reported damage to the front wheel of the of the bicycle, it is apparent that the right side of the front wheel of the bicycle was struck by the left corner of the Hyundai.
9.21This initial contact would have caused the bicycle to rotate anticlockwise when viewed from above and to most probably initially tilt towards the right with the front wheel being “knocked form under’” the rest of the bike, bringing the right handlebar across to contact the bonnet of the Hyundai.
9.22As the collision engagement continued, the bicycle would have been deflected to the left of the car and rotated further anticlockwise. The car would have continued past the bicycle and Ron Leapai, most probably leading to the left exterior mirror colliding with Ron Leapai, causing the mirror to be broken.
9.23All other factors remaining the same this interaction would have been essentially the same whether the collision occurred on the kerb or on the roadway.”
Mr Joy was not required for cross-examination by the defendants.
Summary of evidence on position of the bicycle and car on impact
In evidence in chief the plaintiff told the Court that he rode his bike towards the road and skidded about 30-40 centimetres to a halt at the end of the driveway. A skid mark was left about a bicycle length from the end of the flat portion of the driveway. The end of the front wheel of the bicycle was at the last part of the flat of the driveway when he stopped.
He did not move from that position when he was struck by the front left corner of the car on his right side. He got knocked over and fell to his left.
In cross-examination the plaintiff was shown photograph 3 of Exhibit 1. He stated that the had to stop before the rubber (expansion joint) at the end of the flat portion of the driveway. He denied that the car was still on the road at the point of impact and denied that his front wheel extended over the dark part of the concrete onto the road.
The plaintiff accepted that there was a risk of his riding onto the road but was adamant that he did not do this.
In cross-examination he said that the car driven by the first and second defendants was on the driveway and that his bicycle was not on the dark (bitumen) part of the road.
Ms Reardon saw the plaintiff riding at medium running speed for the last seven metres of his final journey down the driveway. It appeared to her that he slowed down suddenly and stopped frozen at the end of the driveway. She later saw a skid mark about half a mater to a metre long around one metre back from the end of the driveway.
She saw the car coming from her right and observed the car to be driving:
“Very slowly and was very, very close, if not in the gutter and possibly veering more into the gutter.” [37]
It stopped two or three metres after the impact. The left front corner of the car hit the plaintiff and he fell to his left.
In cross-examination Ms Reardon told the Court that the car was either in the gutter, right next to it or possibly on top of it. She accepted that in an earlier interview she had stated that the car did not drive up onto the driveway itself but appeared as though it was driving in the gutter. In that interview she also stated that the bicycle skid mark ended a half a metre to a metre from the end of the driveway. The car was going very slow and not driving in the middle of the lane. She agreed that she had earlier said that the plaintiff was riding quite fast, then he slowed down and stopped pedalling about 7 metres from the road.
Ms Reardon agreed she had previously said that the bike did not go onto the road and did not leave the driveway, but that the front wheel was hanging over the gutter by about 20 to 30 centimetres. The passenger side wheels of the car were in the gutter and the collision point appeared to be in the gutter, not on the driveway or on the road itself. She agreed that she had said to the investigator about the car’s position:
“So I don’t think he went up on the driveway. I think he was just right in the gutter…So he could have been up a little because the gutter sloped, so the car might have been up on top of the gutter but not on the actual driveway.” [38]
In evidence she told the court that the bike never left the driveway and the car never went up into the driveway and that maybe the collision was “in the air above the gutter.” [39] She could not recall the exact specifics of the damage but knew that it was on the front left of the car.
She told the court that the driver’s view was not obscured by anything on the roadway.
The second defendant gave evidence first in the defence case. He told the court that the car was positioned close to the curb when it was driving along Keverstone Circuit. He estimated the car’s position was 30 centimetres or less from the kerb area. There were a few trees around the area next to the driveway and later that the trees were blocking his visibility. He saw the rider coming down the drive. He said the rider lost control of his bike and hit the car near the passenger side rear vision mirror. The brake was applied in the car at the same time as the collision.
He later said that the car may have been driving on the concrete area, but that it was close to the gutter. He said that the bicycle hit the car where he was sitting and that it damaged the mirror and the bonnet as well.
He looked at the damage to his car at the scene and saw that there was also a dent to the front bumper over the left head light and there was a deep scrape there. After being shown photographs he described the damage as being to the front bonnet on the left side of the left headlight.
In cross-examination he accepted that the mirror casing was not broken, but that the glass mirror inside it had been broken. He agreed that he told police on the day that there were scratches to the front bumper as a result of the collision but that they may have disappeared and later in cross-examination he said that the scratches could have been there.
The second defendant did not directly accept that he also told police that the front bumper had black marks due to the pushbike tyre. He said in response to that proposition:
“Well, again, when the bike hit the – because, in fact happen so quick we were not sure where it exactly – so it could have been the bike because whatever I could get as evidence, I put in the report.” [40]
When pressed he accepted that he did not see which part of the bicycle first hit the car. In the moments leading up to the collision he thought that he had used his brakes but could not recall if he held the steering wheel.
When the hearing re-commenced the next morning a series of propositions were put to the second defendant. He told the court that the bicycle could have gone anywhere because it happened so quickly. It could have hit on the side or on the front (of the car). He agreed that he told an investigator that the plaintiff lost control of his bike and hit the left door of the car.
The second defendant accepted that the first time he saw the cyclist he was less than a metre away from the car. He said that the cyclist was not in the driveway and they were on the road when the cyclist hit them. He also stated that the cyclist was on the road after hitting them, but he was not on the road when they were approaching him.
In responding to a series of Browne v Dunn [41] questions he said that the cyclist was not stationary when he hit the car. The car was close to the gutter when the collision occurred, but he couldn’t say if it was on the bitumen or on the concrete.
He did not remember there being any steering input prior to the collision or as a result of the braking due to the collision.
In re-examination the second defendant told the Court that he did not see any damage to the front bumper of his car when he took photographs of the damage to it.
The first defendant told the Court that after doing two or three circuits of Keverstone Circuit a bike bulleted out and collided with the side of the car and tore the mirror off. The car was on the road at the time of the collision and it was closer to the left side as the road was narrow.
He did not see anything prior to the collision. The cyclist tore off the left side mirror in the collision and the car stopped almost immediately after the collision. He could not remember how far forward the car moved after the collision or where the rider was.
He could recall no car damage other than the mirror.
In cross-examination the first defendant told the Court that he didn’t see the cyclist until he collided with the car and that the first time he was aware of his presence was the actual impact with the car.
He accepted that when he had spoken to an investigator he had then said that he first saw the cyclist from about the next house over or just between the next house and the driveway, an estimate of three car lengths away and that the cyclist was one or two car lengths away and going pretty fast – about the same speed as them.
The first defendant did not brake, swerve or change the course of the vehicle. He accepted that when he was asked by the investigator what he did when he first saw the cyclist he said this to the investigator:
“I went to move my foot onto the brake. When we first saw him I sort of just panicked for a bit but afterwards I moved my foot to the brake but the driver had already stopped and that was after the collision.” [42]
In re-examination the first defendant agreed that he did not feel anything in terms of running into the kerb.
Defendants submissions
Use of hearsay portions of expert statements – transcript pages 191 - 200A.
I previously accepted some of the submissions of the defendants in relation to the use of various histories provided for the preparation of expert statements. I was asked to rule on the following portions of the reports pursuant to s 136 of the Evidence Act and limit the use of the histories provided to a non-hearsay purpose:
(a)Dr Gray’s report dated 14 November 2017 (Exhibit 6) – the final paragraph at page 2 headed “History of accident”. I rule in favour of the defendants on this paragraph;
(b)Dr Stokes’ first report at page 3 (Exhibit 10) – the first six lines under the heading “Mechanism of Alleged Injury/Sequence of events”. I rule in favour of the defendants on this paragraph;
(c)Dr Stokes’ second report at page 3 (Exhibit 10) – the final paragraph. I rule in favour of the defendants on this paragraph;
(d)Mr Joy’s report at page 12 (Exhibit 7) – paragraphs 9.3 to 9.8 inclusive. I rule in favour of the defendants on these paragraphs;
(e)Mr Joy’s report at page 19 – paragraph 9.30. Insofar as this repeats a hearsay history I rule in favour of the defendants on this paragraph.
Rulings were given during submissions on Mr Joy’s report on page 14 – paragraph 9.14 and part of paragraph 9.27 at page 18.
Exhibit 12A Video footage of the plaintiff playing football – transcript pages 203-207 B.
The defendants tendered footage of the plaintiff playing football in 2018. To use my words it showed him displaying a “powerful burst through a pack of opposition players”. A post-game interview shows him excited and happy. He is apparently being paid to play football in France at the moment. The fact that the plaintiff had “a good year” [43] in 2018 playing for a team named the Rams is not a submission that defeats his claim.
It is not the plaintiff’s case that he has lost all chance of playing rugby league – rather a small part of his claim is his assertion that he lost a chance to play for a major NRL team as a result of this collision five years ago. Nevertheless, the footage will be taken into account by me as it has relevance to any award for general damages.
Criticism of the plaintiff’s pleadings – transcript pages 221 - 224C.
Senior counsel for the defendants attacked the plaintiff’s case by way of a comparison between the pleadings and the submissions of counsel for the plaintiff.
The statement of claim dated 02 November 2018 particularises the following “Precise particulars of negligence”:
Of the first defendant:
(a) Failing to keep any or proper lookout;
(b) Failing to maintain a safe distance between vehicle one and the plaintiff;
(c) Failing to keep vehicle one under any, or any proper, control;
(d) Failing to apply the brakes when necessary to do so;
(e) Failing to steer vehicle one so as to avoid the collision; and
(f) Driving at a speed which was excessive in all of the circumstances.
Of the second defendant:
(a) Failing to keep any or proper lookout;
(b) Failing to exercise control to maintain a safe distance between vehicle one and the plaintiff;
(c) Failing to maintain a safe distance between vehicle one and the plaintiff;
(d) Failing to keep vehicle one under any, or any proper, control;
(e) Failing to apply the brakes when necessary to do so;
(f) Failing to steer vehicle one so as to avoid the collision; and
(g) Allowing vehicle one to be driven at a speed which was excessive in all of the circumstances.
The plaintiff was criticised for making closing submissions that the first and second defendants controlled the car so that it was too far from the centre of the roadway and not at a safe distance from the roadway from which unexpected incursions were most likely. [44] In my view both of these assertions are implicit in the particulars “Failing to maintain a safe distance between vehicle one and the plaintiff” and “Failing to steer the vehicle so as to avoid a collision”. I reject the plaintiff’s submissions on this topic.
Defendants closing submissions – transcript pages 224 - 240D.
Senior counsel submitted that inconsistencies and criticisms that he pointed to were such that the plaintiff’s case should fail. These submissions were made in a way that did not make it easy to separate them into defined complaints. They would have been far more effective if separated and reduced to writing. I have done my best to do so and to deal with them individually. I have re-read the transcript and the whole of the submissions several times over and considered them carefully.
Senior counsel noted the evidential disparity between Ms Reardon and the plaintiff as to when he stopped pedalling on his final journey down the driveway – twenty metres versus seven metres. Both witnesses told the Court that the bicycle was stationary at the time of the impact. However, it is relevant to reliability and I have considered the submission in that light.
A further submission was made on witness assessment of the plaintiff’s speed as he approached the road. Senior counsel pointed out that, essentially, the evidence of Ms Reardon had the plaintiff riding faster than the plaintiff did. I note that common sense might dictate that a 17 year old boy’s assessment of bicycle speed might be very different to that of an adult woman and that both might be using very different words to describe the same speed. However, the speed of the plaintiff it is relevant to the opportunity to see the plaintiff prior to impact and I found the submission useful on this topic.
A difference between a response to particulars and the evidence was pointed out. The plaintiff’s case was that he was racing other children riding bikes. Ms Reardon reported him to be “going quite fast” [45] prior to stopping. The answer to the request for particulars about the speed down the driveway was responded to (in part) with “He was not in any rush”. [46]
A forensic decision was made by senior counsel not to put the response in the particulars to the plaintiff in his evidence, so I am left in a position of not knowing if the words “He was not in any rush” were the plaintiff’s instructions or a solicitor’s flourish. I note that the evidence at hearing favoured the defendant on this topic, it was clear that the plaintiff was in a rush – his testimony was that he and his brother were in a race against other children in the street.
This submission does show an inconsistency in the plaintiff’s case, but I find it has negligible weight.
Senior counsel made submissions on an inconsistency between the plaintiff and Ms Reardon in relation to the position of the skid mark. The plaintiff gave evidence that the skid mark ended a bicycle length from the road. Ms Reardon put the skid mark ending at half a metre to a metre from the road. Unfortunately, there were no photographs taken of the skid at the time and no-one appears to have taken any measurements at the time. The bicycle itself is not in evidence, nor is its length or wheelbase the subject of any evidence. Ultimately, given the high risk of likely inaccuracy about the marks and the absence of any objective evidence or record of them, I have rejected the skid mark evidence as it was highly likely to be misleading.
Submissions were made about the inconsistency between the plaintiff and Ms Reardon about the final position of the bicycle prior to impact and whether or not the car had travelled up onto the driveway. These submissions were important, and I considered them when determining what facts were proved.
Senior counsel urged me to consider Ms Reardon’s vantage point and her angle of view. I have done so. I was also asked to contrast her evidence with that of the defendants and the split second between the halt of the bicycle and the impact and I have done so.
A submission was made that the defendants had been relatively consistent “all the way through”. I have considered this submission when making my own assessment.
A submission was made about driving in the gutter as being lawful, not amounting to any breach of duty and that there was nothing stopping the defendants from do so. [47] I have borne this in mind when considering liability, but I note for example that a case such as Johnson v Hahn [48] might be a good example of a precedent directly against this submission. Ultimately, I have to my own decision as to liability based on what I find proved on requisite standard.
It was submitted that the plaintiff has failed to prove causation. I have considered this submission when deciding whether the plaintiff has proved his case.
It was submitted that there was no duty to drive the vehicle any slower than it was. I have considered that submission and agree with it. The plaintiff cannot prove his case on excessive speed. The defendant’s submission on the plaintiff’s requirement to call an expert on reaction times is therefore redundant.
Despite senior counsel for the defendants not requiring him for cross-examination, I was invited to put the report of Mr Joy to one side. A forensic decision was made by senior counsel not to cross-examine Mr Joy and in my view these criticisms should have been put to him if they were to be afforded any weight in closing submissions. I will deal with them in any event. The report is based on instructions that were very similar to the plaintiff’s evidence at hearing. I have found it to be balanced, objective and quite useful. A criticism was aimed at Mr Joy’s comprehensive explanation of how the bicycle and rider would have moved and caused damage looking from above. The plaintiff described the collision very simply with it resulting in him and the bicycle falling to his left. That is not inconsistent with Mr Joy’s report, it just lacks the expert knowledge of collision dynamics. Mr Joy did not suggest that the movements he described took anything less than a ‘split second’ – his expertise just enable him to explain what happened physically within that ‘split second’. I reject the criticisms of Mr Joy’s report.
The defendants asked me to draw a Jones v Dunkel[49] inference in relation to an alleged failure to call the plaintiff’s younger brother and his father. I am not sure that much turns on the absence of the plaintiff’s father. He was, as I understand the evidence, inside the house at the time of the collision, so he could not have assisted proof of what happened out on the street in a material way. Anecdotal evidence of how the plaintiff came to get to hospital and the like appears not to be in dispute and of little or no use in determining the genuine issues in this matter. I cannot assess any likelihood of him being told anything in detail about the positions of the collision, car or bicycle as these matters were not put to the plaintiff in cross-examination.
The same cannot be said for the failure to call the plaintiff’s younger brother. There was no explanation for his absence. It seems clear that he was part of the same agreement to race other children that the plaintiff was part of. He was also riding his bicycle on the same driveway as the plaintiff. He was likely to be able to provide admissible evidence on the collision. He was “about 12” [50] at the time of the collision and apparently now resides in New Zealand, but that is not a bar to the giving of evidence in the modern era. Despite there being no cross-examination on what the plaintiff’s brother might have seen on the day, the submission on the failure to call the brother is well made.
I will consider how I direct myself on this issue when I consider the evidence of the plaintiff in detail.
Assessment of witnesses
I commenced my assessment of the witnesses by re-reading the transcript and considering all of the submissions made by senior counsel on the evidence and how I should asses the witnesses.
I then undertook a consideration of what objective evidence was available. Exhibit 9 provided me with photographs of at least part of the damage to the Hyundai car driven by the defendants. There is a deep score in the bonnet leading diagonally form the passenger headlight towards the driver’s external rear vision mirror. It is consistent with an impact point at the very front left hand of the car near the front passenger headlight.
There is also apparent damage to the external passenger rear vision mirror in that the mirror lens has been replaced with a ‘stick on’ mirror. The mirror housing itself appears undamaged. This damage is consistent with contact of some type in the mid-passenger side of the car.
These photographs give rise to an immediate difficulty with the court accepting the evidence of both defendants in terms of the plaintiff riding out of the driveway at speed and hitting the car around the passenger side external mirror. Such a collision cannot explain the damage to the front passenger corner of the bonnet.
The report of Mr Joy and his findings as to the collision configuration and dynamics are a further stumbling block to acceptance of the defendants’ evidence on the manner of the collision.
I do not find there is inconsistency between Mr Joy and the plaintiff or Ms Reardon. Mr Joy was able to give a detailed opinion on how the bicycle and rider moved after the initial impact. This all occurred in a split second and resulted in them ending up on the ground as described by the plaintiff and Ms Reardon.
Exhibit 7 contains the AFP crash report compiled by the second defendant on the day of the collision. Under the section headed “Damage details” the second defendant typed the following:
Left door mirror broken, front bumper bar got scratches and black marks due to push bike tyre and left side of bonnet got dent and straight deep scratch because of push bike (BMX Cycle) handle.
Senior counsel submitted that this may have been due to a “language difficulty.” [51] The second defendant did not require an interpreter. He is a qualified driving instructor in Australia. I reject this submission and find that those details were included in the police report because that damage had occurred to the Hyundai in the collision and because the second defendant reported the damage to police on the day of the collision.
This reported damage is at odds with his evidence in chief on the point of impact. It is also at odds with evidence in chief of the first defendant on the same topic.
The second defendant was an unimpressive witness. Apart from his concession in cross-examination that the car may have been on the concrete, his concession about not seeing the point of impact and the contents of his initial report to police of scratches and rubber bike tyre marks on the front bumper of the vehicle, I concluded that little reliance could be placed upon his evidence.
His performance in cross-examination was uncomfortable to watch and it severely embarrassed his credibility and reliability. An overnight break during his evidence and a further short break afforded by the Court did not improve his responsiveness or assistance to the Court. His manner of trying to explain away the differences between his evidence and what he wrote in the police report and what he told the investigator was unconvincing. In short, his reliability as a witness was almost completely undermined by the nature and quality of his answers in cross.
The first defendant gave evidence in a way that provided very little detail. He was then comprehensively embarrassed in cross-examination by the marked disparity between his evidence in Court and what he had previously told the investigator – see Exhibit 12A.
When confronted with the substantial differences between his evidence and his answers to the investigator, his answers were unsatisfactory at resolving the issue in his favour. His resistance to accept that he was wrong about the passenger mirror housing being completely broken off the car was an example of this.
He was also steadfast in his refusals to allow his prior inconsistent statements to refresh his memory in cross examination. [52] I found that his evidence in Court was unable to provide any probative weight and that his interview with the investigator may have been the only reliable material attributable to him.
The plaintiff impressed me as a young man who was making a genuine attempt to tell the truth. He was nervous as a witness, particularly during long pauses between questions (that don’t show in the transcript), but he relaxed when engaging in the topics of football and his partner. He was not shaken in cross-examination.
From his perspective the collision had a dramatic impact on his early football career aspirations. It would have been a traumatic experience as a 17 year old. I have taken the gravity of the moment into account when assessing his reliability, because I formed the view that it may have affected his accuracy.
I found Ms Reardon was making a genuine attempt to be truthful in her evidence. There was no sense of her “barracking” or any obvious reason for her to do so. She gave appropriate concessions about minor inconsistencies in cross-examination.
I considered her viewing angle and distance from the collision as the defendant’s counsel submitted at page 233 of the transcript , but ultimately, I resolved that her viewing angle and distance had no effect on the reliability or accuracy of her evidence. I formed the view that she was the most accurate and reliable of all of the witnesses.
Consideration of liability
The Civil Law (Wrongs) Act 2002 ( “the CLW”) sets out the standard of care required:
42 Standard of care
“For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all of the information that the defendant either had, or ought reasonably to have had, at the time of the incident our of which the harm arose.”
Section 43 of the same Act sets out the general principles for precautions against risk:
43 Precautions against risk – general principles
(1) A person is not negligent in failing to take precautions against risk of harm unless:
(a) The risk for foreseeable (that is, it is risk of which the person knew or ought to have known); and
(b) The risk was not insignificant; and
(c) In the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) The probability that the harm would happen if precautions were not taken;
(b) The likely seriousness of the harm;
(c) The burden of taking precautions to avoid the risk of harm;
(d) The social utility of the activity creating the risk of harm.
Causation is governed by section 45. The burden of proof lies with the plaintiff on the civil standard as set out at section 46:
45 General principles
(1) A decision that negligence caused particular harm comprises the following elements
(a) That the negligence was a necessary condition of the harm (‘factual causation’);
(b) That it is appropriate for the scope of the negligent person’s liability to extend the harm so caused (the scope of liability);
(2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm top I or more of them –
(a) The court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on eth negligent party
46 Burden of Proof
In deciding liability for negligence, the plaintiff always bears the burden of proving on the balance of probabilities, any fact relevant to the issue of causation.
There were four factual possibilities that arose in this case:
(i) The plaintiff and his bicycle were stationary and both wholly within the concrete part of his driveway when struck by the car; or
(ii) The plaintiff and his bicycle were stationary with the front wheel of the bicycle extending beyond the rubber expansion joint and over the angled/inclined part of the concrete gutter when struck by the car; or
(iii) The plaintiff and his bicycle were stationary with his bicycle extending over the driveway and onto the flat surface of the road (including the flat concrete gutter) road when struck by the car; or
(iv) The plaintiff riding into the side of the car with the car positioned on the bitumen or concrete gutter portion of the road – but not the angled driveway.
After considering each witnesses truthfulness, reliability and capacity for accuracy I form the view that the defendants’ evidence on the point of impact is not sustainable and I reject their testimony on this issue. The photographs of the car, the evidence of Ms Reardon and Mr Joy and the effect of the police report all combine to prove very clearly that the impact point was at the front left of the car. I find this established on the civil standard.
That leaves for my consideration the location and manner of the impact.
The second defendant eventually accepted that he did not see the plaintiff until the impact had occurred. He also accepted that the car may have been on the concrete prior to the collision despite his other evidence to the contrary. I am not able to accept anything other than these concessions from him from him as reliable or probative.
I find that what the first defendant told the investigator was correct - he had three car lengths of view prior to colliding with the bicycle. Given my above comments I am not able to accept anything further from him as reliable or probative.
I accept the evidence of Ms Reardon that the view of both defendants was not obstructed. I specifically reject the second defendant’s assertion that his view of the plaintiff was obscured by trees – I find that he was not looking in that direction. Even if his view was so restricted, this would only compound his liability in allowing the car to be driven to the very far left of the road.
Ms Reardon watched the collision occur. She observed the car being driven by the defendants in and possibly on the gutter. She said that it did not go so far as to mount the driveway. I prefer her evidence as being more accurate than the plaintiff. I find that the plaintiff was honest but mistaken about the path of the car going so far as to be past the expansion joint and onto the driveway. It was being driven on the inclined part of the gutter just prior to the impact.
The defendants’ submission at page 232 of the transcript that Ms Reardon must have been referring to the flat part of the gutter is not accepted. Ms Reardon was not cross-examined on this point.
I accept what Ms Reardon said about part of the plaintiff’s front wheel being in the air above the gutter as correct – but I find that it was the inclined part of the gutter. Nothing in the defendants’ case was capable of swaying me from this position.
I find that the plaintiff was honest but mistaken about the final resting position of the front wheel of his bicycle. His bicycle was “in the driveway” as he told the Court, but I find proved on the civil standard that part of his front wheel was hanging out (or over) past the driveway and expansion joint over the inclined concrete part of the gutter. Once he was mistaken about that fact, he was then then led into his own mistake, I think, about the vehicle being past the expansion joint and on the driveway at the time of impact as well. The absence of his brother meant that I could not make a finding that supported the car being driven past the expansion joint and onto the driveway.
The skid evidence was unsatisfactory. In the absence of any photographs and measurements and in the absence of the bicycle itself I found that all of the evidence about the mark was an estimate at best and likely to be highly inaccurate. I decided that it would not assist my findings.
I do find proved on the balance of probabilities that the car was being driven up on the inclined part of the driveway. I rely on a combination of Ms Reardon’s evidence and the plainitff’s evidence about not going beyond the expansion joint to come to that conclusion.
Because the evidence of the second and first defendants was so unreliable I am able to reject it. The second defendant did not see the impact – he looked to see what happened after the impact occurred. Further, I do not think that the first defendant was attempting to be truthful on the topic and I reject his evidence on the placement of the car on the bitumen and the bicycle being in motion at the time of impact.
I find it proved that the plaintiff was stationary when his bicycle was hit by the car. His bike itself was still on the driveway as he thought but his front wheel was protruding past the expansion joint and over the angled part of the gutter. The wheel was not protruding or hanging over the flat part of the gutter or bitumen.
There is no bump in the gutter to alert a driver. It was the first time that the first defendant had ever driven. That may well explain why the car was being driven on the inclined part of the gutter. Because the car was being driven on the inclined gutter a collision occurred.
I find that the second defendant failed to exert steering input so that the car was steered off and out of the gutter. This was so much of a failure that he allowed the car to travel onto the inclined portion of the gutter just prior to impact.
As the driver instructor the second defendant bears part of the responsibility for the way his car was driven. The car was fitted with dual controls so that he could also apply the brakes with controls on his side of the car. He could also have had steering input by reaching across to the steering wheel if he so chose. He should have done either or both to avoid the collision. The risk of children playing, pedestrians walking and bicycle riders riding in that area and that time of day should have been obvious to him – as should have been the high level of risk of allowing his car to be driven so far to the left of the centreline of the road and on and in the gutter. This amounts to a unreasonable failure to observe the standard required of any driver instructor with dual controls, an unreasonable failure to take precautions and a risk that was both foreseeable and significant.
At the low speed the first defendant was travelling there was more than enough time to bring his car to a halt or move it off the gutter and further towards the centre line of the road – even with his level of experience. But he panicked and did not immediately apply the brake or steering input to avoid the collision. I find either action would have resulted in there being no collision with the plaintiff’s bicycle. It amounts to an unreasonable failure to observe the standard required of any driver, an unreasonable failure to take precautions and a risk that was both foreseeable and significant.
This finding falls within factual scenario two of the four factual possibilities – the plaintiff and his bicycle were stationary with the front wheel of the bicycle extending beyond the rubber expansion joint and over the angled/inclined part of the concrete gutter when struck by the car.
All of the defendants’ submissions were considered carefully by me, but ultimately none of them individually or collectively had sufficient weight to persuade me that the plaintiff has not satisfied me on his burden and standard of proof. As is seen above, some of the defendants’ submissions were rejected and others assisted in forming the basis of my findings.
The defendant submitted that the plaintiff has not proved causation. I have ultimately rejected this submission. The collision occurred because the defendants were controlling the car on the inclined part of the gutter, because the second defendant failed to keep a proper lookout and because they both failed to brake or steer the car off the gutter in time to avoid the collision with the plaintiff.
Findings of fact
I find that the plaintiff has proved the following facts on the standard required by s 46 of the CLW:
(a)The plaintiff was aged 17 years at the time of the collision.
(b)He was coasting his bicycle at about medium running pace towards the road end of the driveway intending that his bicycle did not enter the road.
(c)Just prior to the collision he brought his bicycle to a skidding halt. He was ready to pedal with his right foot on the pedal ready to push down upon it.
(d)Only about 20-30 cm of the front wheel was protruding past the driveway and expansion joint and hanging out over the inclined part of the concrete gutter. It did not touch the concrete gutter or protrude or hang over the horizontal part of the gutter or the bitumen part of the road.
(e)The car that was being operated by the defendants was driving in the extreme left of the lane closest to the driveway that the plaintiff occupied, such that the left side front wheel was, at least party, driving on the inclined concrete portion of the gutter.
(f)The car was not being driven at an excessive speed in all of the circumstances.
(g)The driver’s view of the plaintiff was not obstructed in the immediate leadup to the collision and he saw the plaintiff from at least three car lengths away.
(h)The instructor’s view of the plaintiff was not obstructed in the immediate leadup to the collision.
(i)The instructor failed to keep a proper lookout such that he failed to observe the plaintiff at all prior to impact.
(j)Both defendants failed to steer the car off the gutter so as to avoid a collision with the plaintiff.
(k)The car stayed on the gutter and struck the overhanging part of the wheel of the plaintiff’s bicycle. The plaintiff could not avoid the collision once he had come to a halt and could not take any action to avoid the collision once stationary.
(l)That impact caused the injury to the plaintiff’s right ankle.
(m)The collision dynamics were as described in the opinion of Mr Joy.
(n)The bicycle eventually fell to the plaintiff’s left and he got to his feet.
(o)The defendants were both negligent and caused injury to the plaintiff.
Damages
The parties submit that the following damages are appropriate, less any apportionment for contributory negligence:
HEADS OF DAMAGE PLAINTIFF DEFENDANTS General damages $120,000.00 $50,000.00 Interest on general damages 4% of half of general damages for 5 years $2,520.00 Past economic loss $18,460.00 NIL Interest on past economic loss 4% at 5 years ($3,692.00) NIL Future economic loss $50,000.00 $20,000.00 Past out of pockets $5,031.47 $4,967.77 Interest on past out of pockets Not particularised Not particularised Future out of pockets $30,000.00 $2,000.00 Past Griffiths v Kerkemeyer 186 hours x $48.20 per hour = $8,965.20 186 hours x $35 per hour = $6,510.00 Interest on past Griffiths v Kerkemeyer Not particularised Not particularised Future Griffths v Kerkemeyer 10.5 hours x $48.20 at 3% compound interest = $504 x 12 x 0.744 (10 year deferral rate ) = $4,499.71 $500.00 Loss of superannuation 11.5% of total economic loss Not particularised
General damages
Both parties provided a list of comparable verdicts which I have considered. The plaintiff was not yet a man when injured. He suffered psychological distress from the accident due to his fears of not being able to pursue his professional football career. His injury required two separate bouts of surgery and he was on crutches for many months. He has small scars and part of a screw remaining in his right ankle as a result of surgery. He was embarrassed by the level of care that he required from his girlfriend and her family. Even at his young age his ankle troubles him with the threat of instability at work and during professional sport. The ankle must be strapped when the plaintiff plays football. He requires extra care at work on construction sites as his ankle is no longer stable on uneven ground. He has at least partially recovered his football career but cannot play football forever and the difficulty caused by the injuries will continue into his later working career. He has the distinct risk of osteoarthritis developing and an ankle fusion operation occurring anywhere from his late 30’s on.
I think that the plaintiff’s claim is a modest amount. The comparatives show higher amounts for far older people with similar injuries. After considering the video evidence in the manner that senior counsel submitted, I allow $120,000 and in doing so reject the defendants’ argument that $50,000 is an appropriate sum in the circumstances of this very young man. I allow half for the past and half for the future. 4% interest on half the sum for 5 years amounts to $12,000 in interest.
Past economic loss
The plaintiff’s claim for past economic loss has been considerably trimmed since the figure of $50,000 was claimed in the Statement of Particulars filed on 29 May 2019. The defendants have countered with a sum of $0.
The initial claim of $50,000 was based on the combination of the acceptance of a lower value rugby league contract to the tune of $16,000 and lost casual work with Paragalli due to medical appointments and the like amounting to $2,500. These two figures were bundled in with a loss of opportunity claim seeking a total of $50,000.
Counsel for the plaintiff set out the plaintiff’s refined claim in closing submissions tendered at the conclusion of the hearing, but I do not appreciate the mathematics used therein. $4,200 was claimed comprising loss of the $3,000 Raiders contract sign on fee and six match payments of $200.00 per game. A further amount was claimed by using the plaintiff’s post tax Paragalli wage of $735.00 per week for 5 months – or the work time lost due to the plaintiff’s injuries. This gave rise to a total claim of $18,460 despite my calculation on that basis being greater ($4,200 plus 22 weeks x $735 [$16,170] equalling $20,370.
Senior counsel for the defendants made submissions on this head of damage at pages 241 – 243 of the transcript. It was pointed out that the $3,000 sign on fee was to be provided to the apprenticeship provider as part of the contract – not the player. Senior counsel submitted that the contract allowed for a maximum of $3,000 and $4,000 in player’s fees.
It was further submitted that the plaintiff was fit for work as early as February 2016 because he was back in football training by then and that the Paragalli rate was higher than what would be expected for an apprentice. The plaintiff was not cross-examined on what level of football training he was participating in. I reject the submission on the training as being relevant to economic loss, but I accept the submission on the appropriate rate of loss being that of an apprentice.
It was not disputed that the plaintiff was paid $13.10 per hour as a first-year apprentice in 2018 with Aspect Building Projects. I will use that figure.
I have reviewed the unsigned 2016-17 contract for the plaintiff (Item 5.1 at Exhibit 2). It was due to commence on 01 November 2015 (and I note that the collision date was 17 September 2015). The contract allowed for a living away from home allowance of $682.50 per month gross. Given that it is not disputed that the plaintiff’s family moved to New Zealand, the plaintiff would have been eligible for this payment.
The contract allowed for $3,000 to be paid to the players employer if an apprenticeship was entered into. I agree with the defendants’ submission that this sum is not relevant to the plaintiff’s claim for economic loss.
A player completion allowance was to be paid of two instalments of up to $1,000 per payment in each July and December upon successful completion of an approved training or education course.
The match fees were not filled out in the contract although I note that the plaintiff gave evidence that the was paid $200 per match by the Raiders in the next season. I find the match fees for the unsigned 2015 contract unproved by the plaintiff.
A total playing fee of $3,000 was allowed for the 2016 season and $4,000 for the 2017 season.
The plaintiff was not able to work in the apprenticeship offered in the contract between 01 November 2015 and 06 April 2016. I calculate that as being a little over 22 weeks of lost wages due to the accident. 22 weeks x 37.5 hours at $13.10 per hour for a first-year apprentice amounts to $10,807.50. I note that the tax-free threshold was more than this figure in that financial year.
I allow 5 months of living away from home allowance as per the contract - $3,412.50 gross as per the contract.
I allow for the first portion (half) of the education completion bonus of $1,000 and half of the playing fee of $3,000 adding to $2,500 between them both.
I decline to allow any figure for the lost match fees due to failure to prove them.
I allow the final sum of $16,720.00 ($10,807.50 plus $3,412.50 plus $2,500) with interest of 4% for 5 years amounting to $3,344.00.
Future economic loss
The plaintiff claims $50,000 for future economic loss and the defendants have countered with a sum of $20,000. Submissions were not made by the defendants on how that sum was comprised – but I accept that they have nothing to prove.
The plaintiff submitted that a buffer was required given the likelihood of osteoarthritic change and future surgery. This is to be considered alongside the pain and inevitable inability to work in the lead-up to and after surgery. The plaintiff is in his early 20’s and has at least 45 years of work in the construction industry ahead of him. Presumably his football career will not last past his 30’s.
In their statement of particulars filed 29 May 2019 the plaintiff set out at paragraph 9 (page 6) the basis for their claim – although at that stage of the pleadings $100,000 was sought. There has been no counter to the claim that an ankle fusion will require approximately twelve weeks off work.
His claim that he may well need to retire prior to the usual retiring age has good grounds given that he would be expected to work in the construction industry well after his football career has ended. Senior counsel for the defendants submitted that I should consider the discount tables and have regard to there being “some degeneration which may give him some problems.” I disagree with these submissions. Firstly, the discount tables do not assist with the configuration of a global sum for future economic loss. Secondly the medical evidence clearly shows that the plaintiff is likely in store for much more than merely “some degeneration” of his ankle.
A global claim for future economic loss in the circumstances of the plaintiff is not an easy figure to calculate. It has been cut in half by the plaintiff as at the time of the hearing and is, I think, now a relatively modest sum given his age and the likelihood of further ankle problems arising along the lines that Dr Stokes foreshadows.
I find that the reduced sum of $50,000 sought is reasonable and I allow it less 15% for the vicissitudes of life. The total sum awarded under this head of damage will be $42,500.
Past out of pockets
I award the sum of $5,031.47 sought noting that the difference between the parties was less than $70.
Future out of pockets
The parties are well apart here. I again remind myself that the plaintiff is a very young man. He has a whole life of exercise and work ahead of him. The medical evidence is clear - there is a significant risk that the plaintiff’s osteoarthritic symptoms will increase giving rise to the requirement for an ankle fusion operation in the future.
The plaintiff claims a buffer to allow for future surgery, doctors consultations and specialist consultations. The defendants say that the claim should be limited to $2,000 for all future out of pocket expenses. I disagree with the defendants’ submission that the sum of $30,000 sought is unreasonable, I find that it is reasonably based and I allow it.
P Griffiths v Kerkemeyerast
The parties are agreed on the number of hours claimed, but not the hourly cost. The plaintiff has submitted evidence of the actual cost of domestic care services in the ACT at Exhibit 14. A business named “DUO” charges $48.00 per hour for weekday domestic care between the hours of 6.00 am and 8.00 pm and a business named “Just Better Care” charges $55.80 for the same service. I take the view that $35 per hour is an outdated sum and note the awards of $43 per hour in Nouri v ACT [2018] ACTSC 275 – a notional award and the decision of Seseljia v Reardon [2020] ACTSC 167 where his Honour Crowe AJ awarded $45 per hour and noted that figure’s currency. I find that $45 per hour is an appropriate figure and award the sum of $8,370 on that basis.
Future Griffiths v Kerkemeyer
The parties are $4 apart and I allow the broad sum of $500.
Loss of superannuation
I allow the net economic loss claims at the 11.5% rate.
Damages awarded
HEADS OF DAMAGE PLAINTIFF General damages $120,000 Interest on general damages $12,000 Past economic loss $16,720.00 Interest on past economic loss $3,344.00 Future economic loss $42,500 Past out of pockets $5,031.47 Interest on past out of pockets $503.15 Future out of pockets $30,000.00 Past Griffiths v Kerkemeyer $8370.00 Interest on past G v K $837.00 Future Griffths v Kerkemeyer $500.00 Loss of superannuation Net economic loss ($59,220) x 11.5% = $6,810.30 TOTAL $ 246,615.92
Contributory negligence
The plaintiff was a young man of 17 years when this collision occurred. His contributory liability lies in him allowing part of the front wheel to encroach past his driveway and expansion joint and over the inclined part of the gutter – but not so far as to encroach onto or over the horizontal gutter or bitumen road. He came to this position by riding towards the edge of the driveway at no more than medium running pace, coasting without pedal effort and then applying his brakes so that he came to a skidding halt – thus giving a careful driver less of an opportunity to see any potential risk of him riding a bicycle close to or onto the roadway and himself less of a chance of seeing the defendant’s car. Those, it seems to me, are the two aspects of his potential liability.
I have considered a number of different cases concerning the standard for contributory negligence of children. It is well settled that the appropriate standard at common law is that expressed by the High Court in McHale v Watson (1964) 111 CLR 384 per Per Kitto J at 215:
“It seems never to have been doubted in any reported case from Lynch v Nurdin onwards, that contributory negligence on the part of a child consists of a failure to exercise the care reasonably expected of an ordinary child of the same age.”
The plaintiff was on the cusp of manhood at the time of the collision and old enough to have been able to obtain a licence to drive a car himself. He is able to be expected to take the care reasonably expected an ordinary 17 year old – there was nothing in the evidence, or any submission, that suggested he suffered from any deficit or circumstance that should cause him to be considered any less.
Cases such as Goldsmith v Bisset (No 3) [2015] NSWSC 634 and Verryt v Schoup [2015] NSWCA 128 provide some insight as to the level of contributory negligence of children but not direct assistance due to the application of the different statutory regime in NSW.
Others such as Warren v Coombs and Anor (1979) 142 CLR 531 and Pollard-Lonergan v Goodman [2000] SADC 110 (31 August 2000) provide some assistance as to apportionment in different factual scenarios involving collisions between cars and young adults on bicycles at common law.
I find that a reasonable person of the age and experience of the defendant would know that there was some risk created by having part of their bicycle protrude over a gutter – but not so much risk as the 17 year old in Pollard-Lonerganv Goodman who allowed his handle-bar to protrude out from a traffic island into traffic.
The decision of his Honour Justice Elkaim in Lee v McGrath [2018] ACTSC 173 has provided guidance on whether extra weight should be attached to the duty of a driver of a car rather than a pedestrian (or stationary bicycle rider as is the case here). I have followed his Honour’s helpful summary of the law of contributory negligence in the ACT and followed the line of reasoning in Pennington v Norris (1956) 96 CLR 10. Obviously enough, cars have the capacity to cause far more significant harm than stationary bicycle riders.
The same principle is set out by King CJ in Evers v Bennett (1982) 31 SASR 228 at 229 and followed in Veryyt v Schoup above at [18]. I think that only a slightly higher standard applies to riding a bicycle than walking and it is one that is well short of the standard of care required of a driver of a car.
Section 102 of the CLW Act sets out that if the plaintiff has suffered damage partly because of his wrong and partly because of someone else’s wrong the damages recoverable are to be reduced to the extent just and equitable having regard to his share in the responsibility for the damage.
I find that the plaintiff was wrong in allowing about 20-30 centimetres of his front wheel to protrude past the driveway and expansion joint and hang out over the inclined part of the concrete gutter. His manner of riding along his driveway also marginally limited the opportunity for he and the defendants to observe each other.
Senior counsel for the defendants made submissions on the basis that the plaintiff was wholly liable for the collision and made no submissions on an appropriate contributory apportionment to the plaintiff in the alternative.
I find that the responsibility for the plaintiff’s injuries should be apportioned ninety percent to the defendants and ten percent to the Plaintiff.
Orders
The orders of the Court are:
1. Judgment be entered for the plaintiff against the defendants in the sum of $221,954.33 (being ninety percent [90%] of $246,615.92).
2. The third defendant pay the costs of the plaintiff’s costs of the proceedings as agreed or assessed.
3. The usual orders as to interest.
4. Order 2 does not take effect for a period of 14 days and if a party notifies my associate in writing in that period that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.
| I certify that the preceding two-hundred and fifty-one [251] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart. Associate: Kefilina Faupula Date: 4 September 2020 |
[1] Transcript of proceedings 18 November 2019, 12.
[2] Exhibit 2.
[3] Transcript of proceedings 18 November 2019, 13.14 – 13.18.
[4] Transcript of proceedings 18 November 2019, 37.14.
[5] Transcript of proceedings 18 November 2019, 37.26.
[6] Transcript of proceedings 18 November 2019, 57.
[7] Transcript of proceedings 18 November 2019, 13.21.
[8] Transcript of proceedings 18 November 2019, 38.32.
[9] Transcript of proceedings 18 November 2019, 18.41.
[10] Transcript of proceedings 18 November 2019 19.8.
[11] Transcript of proceedings 18 November 2019, 45.
[12] Transcript of proceedings 18 November 2019 19.43.
[13] Transcript of proceedings 18 November 2019, 20.10.
[14] Transcript of proceedings 18 November 2019, 20.24.
[15] Transcript of proceedings 18 November 2019, 23.
[16] Transcript of proceedings 18 November 2019, 27.29.
[17] Transcript of proceedings 18 November 2019, 28.
[18] Transcript of proceedings 18 November 2019, 54.5.
[19] Transcript of proceedings 18 November 2019, 32.22.
[20] Transcript of proceedings 18 November 2019, 29.13.
[21] Transcript of proceedings 18 November 2019, 30.
[22] Transcript of proceedings 18 November 2019, 33.18.
[23] Transcript of proceedings 18 November 2019, 34 – 36.
[24] Transcript of proceedings 18 November 2019, 30.24.
[25] Transcript of proceedings 18 November 2019, 33.6.
[26] Transcript of proceedings 18 November 2019, 59.
[27] Transcript of proceedings 18 November 2019, 68.
[28] Transcript of proceedings 18 November 2019, 74.15.
[29] Transcript of proceedings 18 November 2019, 76.
[30] Transcript of proceedings 19 November 2019, 89.26.
[31] Transcript of proceedings 19 November 2019, 94.
[32] Transcript of proceedings 19 November 2019, 94.20.
[33] Transcript of proceedings 19 November 2019, 113.21.
[34] Transcript of proceedings 19 November 2019, 122.
[35] Transcript of proceedings 19 November 2019, 128.27.
[36] Transcript of proceedings, 18 November 2019, 19.30-37.
[37] Transcript of proceedings 19 November 2019, 91.
[38] Transcript of proceedings, 19 November 2019, 104.8-20.
[39] Transcript of proceedings, 19 November 2019, 105.1.
[40] Transcript of proceedings, 19 November 2019, 134.34-36.
[41] (1893) 6 R 67
[42] Transcript of proceedings 20 November 2019, 183.
[43] Transcript of proceedings 20 November 2019, 206.
[44] Transcript of proceedings 20 November 2019, 221.
[45] Transcript of proceedings 19 November 2019, 100.4.
[46] Transcript of proceedings 20 November 2019, 226.
[47] Transcript of proceedings 20 November 2019, 235.
[48] Johnson v Hahn Unreported decision King CJ of the Supreme Court of South Australia 153 of 1979.
[49] (1959) 101 CLR 298.
[50] Transcript of proceedings 18 November 2019, 16.34.
[51] Transcript of proceedings 20 November 2019, 278.
[52] Transcript of proceedings 20 November 2019, 183.25-32; 184.1-29; 185.18-23 and 186.
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