Liddle v Twohig

[2008] NSWSC 95

CITATION:	Liddle v Twohig [2008] NSWSC 95
HEARING DATE(S):	13-16, 20-22 August 2007
JUDGMENT DATE :	19 February 2008
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hislop J
DECISION:	Judgment for the plaintiff in the sum of $1,837,500 plus costs.
CATCHWORDS:	TORT - personal injury - motor vehicle accident - conflicting liability evidence.
CASES CITED:	Podrebeserk v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
PARTIES:	Matthew Liddle (Plaintiff) Michael Andrew Twohig (Defendant)
FILE NUMBER(S):	SC 20416/04
COUNSEL:	K.P. Rewell SC/M.A. Cleary (Plaintiff) I.D. Roberts SC (Defendant)
SOLICITORS:	Stacks - The Law Firm (Plaintiff) Moray and Agnew (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

Tuesday 19 February 2008

20416/04 MATTHEW LIDDLE v MICHAEL ANDREW TWOHIG

JUDGMENT

Introduction

1 The plaintiff suffered serious injuries in a motor vehicle accident which occurred at approximately 6.50 pm on 1 December 2002. The accident occurred at the intersection of Sutherland and Kethel Roads, Cheltenham, New South Wales, when the plaintiff’s Kawasaki ZZR 250 cc motorcycle collided with the defendant’s manual Mazda 323 sedan.

2 The plaintiff alleges the accident and his resultant injuries were caused by the negligence of the defendant. The defendant has denied liability and alleges the plaintiff’s injuries were caused or contributed to by the plaintiff’s own negligence.

3 There were no witnesses to the accident and there is a conflict between the parties as to what occurred. The damages recoverable in the event the plaintiff is wholly successful in his action have been agreed between the parties. The issues for the determination of the Court are liability and, if necessary, contributory negligence.

The locale

4 Sutherland Road, in the vicinity of Kethel Road, runs east-west. Kethel Road forms a T junction on the northern side of Sutherland Road. There is a crest in Sutherland Road approximately 180 metres west of the Kethel Road intersection, from where Sutherland Road proceeds downhill at a gradient of about 11.5 percent to the lowest point, being a short distance west of the intersection. Sutherland Road then proceeds uphill at a gradient of about 17 percent to a crest approximately 40 or 50 metres east of the intersection. Sutherland Road is straight between the two crests and, in daylight, there is a clear view of the intersection for motorists proceeding east once they reach the western crest.

5 The surface of Sutherland Road is bitumen sealed. Generally it is approximately 7.2 metres wide and divided into two traffic lanes, one in each direction, by continuous double white barrier lines. There is a break in the barrier lines, about 12 metres long, opposite the mouth of Kethel Road. The northern side of Sutherland Road between the western crest and the intersection is kerbed and guttered.

6 In the vicinity of the intersection the eastbound lane widens to form a second lane which is separated from the original eastbound lane by a single broken white line. The additional eastbound lane commences approximately 90 metres before the intersection and does not continue on the eastern side thereof. The single broken white line ceases just before the western kerb of Kethel Road.

7 In the vicinity of the intersection the westbound lane widens to include an auxiliary lane to cater for traffic turning right into Kethel Road. The auxiliary lane is separated from the westbound lane by a single broken white line. The auxiliary lane commences approximately 15 metres east of the intersection and ends approximately 80 metres beyond it.

8 In the immediate vicinity of the impact location the eastbound portion of the carriageway is 4.15 metres wide. The westbound portion of the carriageway is 6.9 metres wide.

9 The southern side of Sutherland Road leads to a railway reserve and was heavily vegetated. On the northern side the land use comprised low density housing.

10 Kethel Road runs generally north-south and is approximately eight metres wide though it widens at the mouth of the intersection to about 23.3 metres. The intersection is controlled by a combination of stop signs and stop control lines for vehicles entering Sutherland Road.

11 There was a speed limit of 50 km/h. The accident occurred in daylight. The weather at the time was fine and the road surface dry.

The evidence of the plaintiff

12 The plaintiff was born on 7 August 1976. He obtained his car driver’s licence in August 1993 and his motorcycle licence in November 2001.

13 On 21 December 2002 Police Constable Lang interviewed the plaintiff at Royal North Shore Hospital. The constable recorded in his notebook that the plaintiff said the following in response to the question “What happened?”:

“At about 6.50 pm on 1/12/2002 I was riding motor cycle WXH 82 south along Sutherland Road, Cheltenham at about 60 km/h when I saw a red motor vehicle two-thirds through a ‘U’ turn but still in Kethel Street. As I approached the red vehicle it kept on coming out of Kethel Street. I collided with the front right mudguard area of the car. I don’t remember much of the accident but remember laying on the road.”

The entry was signed by the plaintiff.

14 A MACA claim form dated 21.1.03 described the accident in the following terms:

“Because of serious injury memory of accident not complete. However I know that I was riding my motorcycle down hill along Sutherland Road in a south-easterly direction when a red car appeared from Kethel Street on my left and drove across my path.”

It was common ground that the writing in that document was that of the plaintiff’s father.

15 In his evidence in chief the plaintiff gave the following version of events:

“Q. When you reached the crest [the last crest west of the intersection], crossed it and began the downhill run towards the place where the accident happened, did you see any vehicles coming towards you?
A. No.

Q. Did you see any other vehicles on the roadway at all?
A. There was a red car in front of me.

Q. Were you able to identify its model from what you saw, or was it not a model you were familiar with?
A. Oh, I don't recognise it from then but if I, I do know what type of car it is now obviously, but I didn't at the time.

Q. Well, where was the red car when you first remember seeing it and what did it appear to you to be doing?
A. Okay. The red car was down on the left-hand side partially in Kethel Street about two thirds of the way through a U-turn.

Q. What do you mean by two thirds of a way through a U-turn? Describe its position, its angle, its movement?
A. Okay. I clearly remember the car being, you can see it from the photographs that there is the straight ahead bit which if you continue in the lane you can go up the hill, there is the left-hand bit of the lane. I remember seeing the car poking its nose - I apologise for using my hands - but poking its nose into Kethel and then swinging around and so it was two thirds he was, probably its nose was probably coming a bit out of Kethel.

Q. And was the vehicle in motion?
A. Oh, yes.

Q. When you saw the vehicle in motion with its nose just pointing out of Kethel what, if anything, did you do on your motorcycle?
A. Okay. I moved my motorbike to the right-hand part of the road.

Q. How were the lanes separated? How was the west bound traffic separated from east bound?
A. Double unbroken lines down the middle of the road, so I moved my motorbike to the right-hand side of that.

Q. What, the traffic lane?
A. Yes, I apologise, the traffic lane. So I would have been very close to the double white lines.

Q. Yes?
A. I assumed the vehicle would stop coming so I continued travelling.

Q. Did the vehicle stop coming?
A. No, it didn't.

Q. Well, as you drew close to it as far as you can recall did it still continue to come?
A. Yes, it did.

Q. Do you recall now what, if anything, you did about your own speed?
A. I believe I, I believe I tried to brake but my memory of that part of the collision is incomplete.

Q. And what is the last thing you remember seeing before the impact?
A. I just have this vision of a red flash, so my whole vision filled up with this red.

Q. Do you recall the impact itself?
A. No.

Q. Do you remember flying through the air?
A. No.”

16 The plaintiff knew that the speed limit in the area was 50 km/h. He gave evidence that he was riding at that speed as he reached the western crest. However the speed of the motorcycle increased to 60 km/h by reason of the downhill slope after the crest. He did not accelerate and the engine retardation effect would have prevented the motorcycle from going any faster than 60 km/h.

17 In cross examination:

(a) The plaintiff affirmed that he had seen the car “poking its nose into Kethel”. He said he told Constable Lang of this observation but accepted no reference to it was contained in the entry signed by him in the police notebook.

(b) He said he could not say how far down the hill he was when he saw the car moving to the left but approximated that position to the position from which a photograph tendered in evidence was taken.

(c) He said he did not have a specific memory of seeing the car before that but imagined it would have been within his view from the moment he got to the crest.

(d) He was asked to accept that the photograph was taken 150 metres west of the intersection. He gave the following evidence:


“Q. If it be the case that when you saw the red vehicle two-thirds through a U-turn, but still in Kethel Street, you were about 150 metres away, then the accident could not have happened in the way you describe, could it, because the vehicle would be well and truly on to the other side of the road long before you got to the intersection?
A. I don't agree with that, it would depend at what speed the vehicle was travelling…

Q. At 60 kilometres an hour how long did you take to cover 150 metres?
A. About nine seconds.

Q. Ample time, you would agree, for any car poking its nose out of Kethel Street to either do a right hand turn or a U-turn, whichever it was doing, would you agree?
A. If the vehicle had moved off when I was nine seconds away, yes.

Q. Ample time for you to travel, for instance, to the left of the vehicle?
A. You couldn't travel to the left of the vehicle.

Q. Why not?
A. Because the left hand lane, the slip lane down the left hand side sort of ends up - if you kept going you would hit the bank as it was going up the hill.”

(e) He gave evidence as follows:


“Q. You saw the vehicle do the flick around you have talked to us about?
A. Yes.

Q. And proceed across in a more or less north south direction in front of you?
A. No, I don't recall it going in front of me.

Q. What do you last recall?
A. My very last recollection is that flash of red.

Q. And before that?
A. The last clear recollection I have is where that position of the vehicle where I said where its nose was just out of Kethel.”


(f) He said that the description of the accident in the claim form was “similar, it is a reasonable summary in some ways”.

(g) He denied he was travelling in excess of 60 km/h.

(h) He gave the following evidence:

“Q. If when you first saw the vehicle two-thirds of the way through a U-turn it would be heading at least partly to the west, wouldn't it?
A. No, that's what I meant by two-thirds of the way through is what I have, where I have drawn the Mazda on that diagram.”


On the diagram (Exhibit 1) the plaintiff had placed the car on the eastern side of Kethel Road at an angle to the kerb in Sutherland Road and with the offside front barely protruding into Sutherland Road. The diagram was not to scale

(i) In re-examination the plaintiff said that the conversation with Constable Lang was not limited to what the officer wrote down in his notebook. He gave the following evidence:


“Q. Incidentally had you spoken with anybody else about how this accident may or may not have happened up to the time that you spoke with Constable Lang?
A. No, absolutely not.

Q. So was he the first person that you had spoken to about how the accident happened?
A. Yes.”

The evidence of the defendant

18 The defendant was born on 21 July 1985. He was a school student at the time of the accident. He had obtained his provisional driver’s licence in July 2002.

19 The defendant was interviewed by Constable Lang at the scene. The constable recorded in his notebook that the defendant said, in response to the question “What happened?”:

“About 6.50 pm on 1/12/2002 I was driving a red Mazda, rego TXL 553 south on Sutherland Road, Cheltenham near the intersection of Kethel road. I realised that I had missed my turn and I decided to make a ‘U’ turn at the intersection of Sutherland road and Kethel road. I stopped in the middle of the intersection but still within my lane. I was about to make a ‘U’ turn when I heard a motorbike approaching the rear of my car. I had only turned the steering wheel to the right and indicated. When I heard the motor cycle I stopped completely, looked over my shoulder and heard the collision and looked forward to see the motor cyclist flying through the air, about 20 metres. I got out of my car to check on the motorcyclist. I then rang 000.”

The entry in the police notebook was signed by the defendant.

20 The defendant, in his evidence-in-chief, confirmed that he was unfamiliar with the area, had taken a wrong turn and had decided to make a U turn at the intersection to go back the way he had come. He then gave the following evidence:

“Q. Did you identify a place to do that?
A. Yes.

Q. Where was that place?
A. That was at the corner of what I know now as Kethel and Sutherland Road.

Q. What was it about that position that led you to attempt to turn there?
A. There were double lines that had broken. It stopped and it started again and there were two lanes on either side of the road.

Q. What did you do when you got to that intersection?
A. I stopped.

Q. When you stopped where was your vehicle?
A. There's two lanes there. It was in the centre of the road, near the centre line at a slight angle.

Q. Which way to the right or left?
A. To the right.

Q. When you said you stopped, did you in fact come to a full stop?
A. Yes.

Q. What did you do then?
A. I saw the street sign and realised I'd travelled in the wrong direction, put my indicator on and that was the point at which I heard the noise.

Q. When you say you put your indicator on, which way did you indicate?
A. Right indicator, to say I was turning around to travel in the other direction.

Q. Do you say you then heard a sound?
A. Yes.

Q. When you heard the sound were you still stationary?
A. Yes.

Q. What was the sound you heard?
A. It was a high pitch, like a revving kind of noise of a car engine.

Q. Did you recognise that it was the sound of a motorcycle at that time?
A. No.

Q. Having heard a high pitch noise, what did you do?
A. I checked my mirrors, my right hand mirror, my rear vision mirror and blind spot.

Q. Did you see anything?
A. No.

Q. What did you do?
A. I heard the noise again. It appeared to be getting louder. That's when I checked my blind spots and mirrors again.

Q. Still saw nothing?
A. Yes.

Q. What did you do then?
A. That's when I turned the steering wheel and pulled my foot off the brake and started to turn, which is when the collision happened.

Q. When were you first aware that there was a noise near your vehicle?
A. About a second. Not even that. Less than a second before it hit me.

Q. What did you see?
A. Just the motorbike hit above my driver side tyre.

Q. Did you see the motorcyclist?
A. No.

Q. In any event, did you get out of your car?
A. Yes.

Q. Had your car moved from where you had stopped?
A. No. It wasn't capable of moving.

Q. I know. You came to a stop?
A. Yes.

Q. Before the accident?
A. Yes.

Q. After the accident was your car in a slightly different position?
A. Maybe slightly. Not much.

Q. You didn't notice?
A. Yes - no…

Q. Did you at any time turn into Kethel Street?
A. No.”

21 In cross examination the defendant gave evidence inter alia that:

(a) prior to the accident he had practised doing U turns in the Mazda many times in the course of his driving tuition, was well practised in knowing what width of roadway was necessary to get the Mazda around in a U turn, he knew he should not attempt a U turn in areas where the visibility of his vehicle was restricted to other motorists, he knew he should look to make sure the roadway was clear both ahead and behind him and to make the turn reasonably quickly;

(b) he accepted there were better places to make a U turn than that chosen by him on this occasion but he thought that as there were two lanes on the southern side of the road he could complete the U turn and if he did not make it he would be able to do a three point turn. He did not think he would cause an obstruction as there was not much traffic around;

(c) he agreed he had the opportunity to move into the turning lane on the northern side of Sutherland Road and to make his U turn from there through the break in the double white lines or to pull into the mouth of Kethel Road and make his U turn from there, thus eliminating the possibility of being forced to make a three point turn;

(d) that the angle between the car and the centre of the road where he stopped was a slight angle, approximately ten degrees;

(e) he stopped before continuing to move into the U turn to check the name of the intersecting street to confirm he had gone the wrong way. He said he looked at the street sign on approach, he did not know the street, which confirmed he had gone the wrong way. He agreed he believed the road was clear in both directions but stopped rather than continue straight into the U turn because “that’s when I heard - when I checked. When I saw the street sign I figured I had gone the wrong way. That’s when I heard the noise of the motorbike”;

(f) when he first heard the noise of the motorcycle he checked his blind spots, the rear vision mirror, and the external mirrors of the vehicle and saw nothing. He then went to go. He turned the steering wheel a bit but he did not move the vehicle as the noise was getting louder and closer to him. He checked in the mirrors for a second time but saw nothing approaching him. He started to turn the wheel and was in the process of taking his foot off the brake and engaging the clutch when the accident occurred. The vehicle was moving just slightly at the time of the impact, less than 1 km/h. The noise never stopped after he first heard it and it only got louder. He could not explain how in checking his mirrors he did not see the motorcycle;

(g) he agreed he did not say anything to Constable Lang about checking the Kethel Road sign or tell him he had checked the mirrors at all, much less twice, nor did he tell him he had moved off just before the impact. He said he had seen the impact even though Constable Lang had merely recorded that he had heard it. He gave the following evidence:

“Q. You didn’t tell the constable you checked your mirrors at all, much less twice?
A. Well, like, that was pretty much taken maybe half an hour, an hour afterwards, so I was still in a bit of shock. I thought it was just - I didn’t know it would go this far. I thought it was just like a statement about the accident. I didn’t know that they had to have details and stuff like that, because I was only 17 at the time.
Q. You said to the constable you looked over your shoulder and heard the collision?
A. Yes.

Q. You didn’t say you saw the collision, did you?
A. Well, I did, yes. Like I said, when I was filling that out, when we were writing that statement, I didn’t think it was important to add any detail.”


(h) he denied he had given a falsely exculpatory version of events to the police to avoid the loss of his provisional licence;

(i) he agreed that with the benefit of hindsight, the logical way to attempt a U turn at this location was to turn into the mouth of Kethel Road to widen the turn and that by so doing the street sign would be right in front of his eyes. He denied that that was what he had in fact attempted to do;

(j) it was obvious to him that he was going the wrong way before he reached the intersection and gave the following evidence:

“Q. Therefore there was no need to stop and look at the Kethel Road sign or any other street sign?
A. You could say that, but to me it helped me to confirm it was the wrong way.”

(k) he was asked why he began to move when the sound was loudest and closest and replied:

“Like I said before, I wasn't sure that that noise was from the road. There were a number of houses on the side of the road. It might have been somewhere in their garage or somewhere in the front yard. I wasn't sure where it was coming from and since I couldn't see anything I guess I didn't think it was on the road.”

He agreed with the proposition that “by the time [he] moved a split second before the impact it must have been obvious that whatever was making that sound was right on top of [him]”. He gave the following evidence:

“Q. Can you explain why, on your version of events, you chose to move when the sound was right on top of you at its loudest and you didn't know where it was coming from? Why?
A. I thought I was an inexperienced driver, I couldn't tell it was on the road, didn't know what direction it was coming from, probably the best thing to do was continue what I was doing instead of stopping in the middle of the road.”


He said that by the time he moved the sound must have been coming from within a few metres from him.

Constable Lang

22 Constable Lang gave evidence. He had commenced as a probationary constable in December 2000 and completed the probationary period in December 2001. He had not done a crash investigation course and had no formal training in analysis of motor vehicle accidents and was reliant upon his experience in attending motor accident scenes as part of his general duties. The Crash Investigation Unit did not attend the accident.

23 Constable Lang gave evidence as to his observations at the scene and the taking of various photographs which were tendered in evidence. Constable Lang said that he wrote down in his notebook exactly what the plaintiff told him at the hospital. He regarded the version recorded as “not possible”. He said that any matter of relevance would have been included in the notebook, that if he had been told of the car poking its nose into Kethel Road he would have recorded it. The first time he ever heard that mentioned was when cross examined at this hearing. It was apparent that he put in his notebook in quotation marks, seemingly in answer to a single question, material which he had earlier confirmed with the plaintiff.

The objective evidence

24 The following facts, based upon the police photographs, police evidence and medical reports were either common ground or not the subject of serious dispute:

(a) The initial impact was between the front tyre of the motorcycle and the offside front wheel of the car. The initial impact occurred in the eastbound traffic lane opposite the mouth of Kethel Road and adjacent to the gap in the unbroken centre lines.

(b) Following the impact, the car came to rest wholly within the eastbound lane of Sutherland Road at an angle of 11 to the centreline. The offside front tyre was at the gap in the centreline in line with the unbroken barrier lines.

(c) There was a black skid mark on the road. It commenced with a short mark, which acutely changed direction and continued in a straight line for about three metres, finishing under the offside front tyre of the car.

(d) There was extensive damage to the right mudguard of the car and some damage to its bonnet area. The offside front wheel was damaged and out of alignment. There was a large amount of oil in this area. The driver’s side mirror was pushed backward. Apart from the mirror, there was no damage to the driver’s door or the remainder of the offside of the car.

(e) The motorcycle came to rest in bushes on the southern side of the road with its nearside against an embankment. It was approximately six metres in front of the offside front wheel of the car. It was facing west. It was badly damaged, with damage to the front faring, handlebars, front forks and gearbox.

(f) The plaintiff was thrown into the air on impact and landed on the roadway approximately 13 metres from the front of the car in its rest position. He then slid, approximately, a further 12 metres along the roadway. He sustained, relevantly to the question of liability, a fractured pelvis, fractured left shaft of the femur and neck of the femur, lacerations and cruciate damage to the knees and a fracture of left scaphoid and ulna styloid process.

Expert witnesses

25 The primary issue was whether the plaintiff’s or the defendant’s version of events was to be accepted. If the plaintiff’s version was accepted the accident occurred because the defendant was making a U turn and failed to observe and give way to the plaintiff’s motorcycle. Senior counsel for the defendant conceded that version of events, if accepted, would result in a finding of negligence against the defendant. If the defendant’s version was accepted, the accident occurred when the car was stationary (or barely moving) in the eastbound marked traffic lane with the right hand indicator activated when the plaintiff collided with it in circumstances where there was available a clear view of the car from the top of the western crest and no other traffic on that section of the road. If that version of events was accepted, the plaintiff, who had the onus of proof, must fail in his claim.

26 Considerable expert evidence was called by the parties in an endeavour to provide scientific support for the version of one or other of the parties. The plaintiff qualified Dr Griffiths, who holds the degrees of Bachelor of Mechanical Engineering and Master of Biomechanical Engineering and has practised in both fields for 30 years, Dr Gibson, a biomedical engineer with expertise in biochemical engineering and accident reconstruction, and Mr Johnston, a consulting engineer. The defendant qualified Mr Keramidas, whose area of expertise was forensic engineering and collision reconstruction, and Dr McIntosh, whose area of expertise is biomechanics. Each of these witnesses gave evidence.

27 The evidence available to the experts upon which to reach their conclusions was somewhat limited. The car and motorcycle were not available for inspection, photographs of them following the accident were taken at night, there was only one photograph of the motorcycle, the skid marks were marked using white paint applied, somewhat inaccurately, by torchlight at night. There were no daylight photographs of the skid marks and no record of the position of any debris occasioned by the collision.

28 The experts qualified by the plaintiff deduced from the skid marks that the car was moving at the time of impact. They were of the opinion that the nature of the damage to the car and other indicia were indicative of an impact by the motorcycle with the offside front wheel and mudguard of the car and a secondary impact by the plaintiff himself, the latter causing damage to the mudguard nearer to the front offside door and a fracture of the plaintiff’s femur. The pushing backward of the driver’s side mirror was also the result of contact with the plaintiff’s person. In the opinion of Mr Griffiths, the likely impact angle of the vehicles was 70º, Dr Gibson considered it was 60-80º and Mr Johnston opined it was in excess of 45º.

29 This evidence was consistent with the plaintiff’s version of events. It was not consistent with the defendant’s version of events nor an impact angle of 30º.

30 Mr Keramidas deduced from the available evidence that the impact angle was 30º. He acknowledged that an impact angle of 25º or less would have resulted in damage to the front offside door of the car and rearwards.

31 The evidence of Dr McIntosh was not of any particular assistance on the issue of the impact angle.

Submissions

32 Senior counsel for the defendant submitted the plaintiff’s evidence should be rejected particularly as:

(a) The accident occurred because the plaintiff was not keeping a proper look out and did not see the defendant’s stationary vehicle prior to the collision.

(b) The plaintiff had fabricated the version of events which he relied upon and in particular had never mentioned to the police officer that he had seen the car nosing into Kethel Road.

(c) The plaintiff gave evidence he was 150 metres from the car when he first saw it. If this was correct, then, even on his version of events, the car would have been out of his path long before he reached it.

(d) If the car was two-thirds through the U turn when the plaintiff saw it, it would have been more than 90 º across the roadway.

(e) There was evidence from Mr Keramidas that an impact at an angle anywhere approaching 60 º was inconsistent with the final position of the motorcycle.

(f) There was evidence from Mr Keramidas that the damage to the gearbox of the motorcycle described by the police supported a shallow impact angle.

33 Senior counsel for the plaintiff submitted the plaintiff’s evidence should be accepted as it was internally consistent and also more consistent with the likely behaviour of a driver placed in the defendant’s position than that asserted by the defendant. He responded to the defendant’s submissions as follows:

(a) The first recorded version of events by the plaintiff was that contained in Constable Lang’s notebook made about three weeks after the accident. It was submitted for the defendant that the three weeks delay provided ample time for the plaintiff to fabricate a version of events consistent with negligence on the part of the defendant. The plaintiff however gave evidence he had not discussed the circumstances of the accident with anyone prior to being interviewed by Constable Lang. The plaintiff was not cross examined on this issue. The plaintiff informed Constable Lang that the defendant was making a U turn at the time. Unless the plaintiff had observed the defendant, he would not have been aware of this information which accorded with the defendant’s assertion that he was making a U turn.

(b) It was improbable that the plaintiff, with an uninterrupted view of the road ahead for, relevantly, 180 metres, would have failed to observe the defendant’s vehicle stationary with its indicator on in the eastbound lane and not taken appropriate avoiding action particularly as there were no streets intersecting Sutherland Road other than Kethel Road and no evidence of any activity to divert his attention elsewhere.

(c) The plaintiff said he told the police officer he saw the car poking its nose into Kethel Road. This was not noted in the statement signed by the plaintiff in the constable’s notebook. Constable Lang said he would have noted it if it had been mentioned. The Court should find that the plaintiff told Constable Lang that he saw the car poking its nose into Kethel Road. Constable Lang’s evidence that he was not told of it should be rejected. Constable Lang said he would have attempted to record all that he considered relevant. However, it is apparent Constable Lang did not record every question and answer verbatim in his notebook. The reason why the observation was omitted may have been because the constable considered it irrelevant as he had concluded the plaintiff’s version of the accident was not possible, he may have simply omitted it in the course of constructing the statement or the plaintiff may not have made it clear to him: see the evidence of the plaintiff reproduced at [15 Q 4-5] in this judgment.

(d) It may be accepted that if the distance between the plaintiff and the car was 150 metres when the plaintiff first saw it poking its nose into Kethel Road or emerging from it, it is likely the car would have cleared his path before he would have reached it. However, the plaintiff said in his evidence that he could not say what the distance was. He had not gone back to check it. It was more likely that when he saw the car poking its nose into Kethel Road it was about 100 metres from him, a distance consistent with the likely speed of the car and with it being in his path when he reached it.

(e) The path of the car described by the plaintiff in Exhibit 1 was consistent with his oral evidence and was the most probable path taken by the car. The contemplated U turn could be completed from that position and it was consistent with the diagrammatic analysis by Mr Griffith.

(f) It was not possible to determine where the motorcycle should have ended up after the collision. There were too many factors, assumptions and variables to enable any firm conclusion to be reached. The plaintiff’s experts did not accept the final resting place of the motorcycle excluded an angle of impact of more than 30 º . In their opinion, the final resting point was more consistent with an impact angle of 70 º than 30 º . The evidence of Mr Keramidas was speculative and should not be accepted. In any event, it did not constitute incontrovertible evidence such as to preclude the acceptance of the plaintiff’s version of events.

(g) The experts had no opportunity to examine the gearbox. There was no photograph of it. In the absence of an opportunity to examine the damaged gearbox or a photograph of it, it was not possible to deduce an angle of impact from the rupture of the gearbox. On the available evidence, the damage to the gearbox could be consistent with an impact angle ranging from 30 º -80 º . Mr Keramidas accepted it could be explained otherwise than by an angle of 30 º .

34 Senior counsel for the defendant submitted, in essence, that the defendant’s evidence should be accepted as his evidence had been consistent, he was unmoved by cross examination on critical matters and, as a 17 year old schoolboy, it was unlikely that within half an hour of the accident he would have made up a story that satisfied the police that he was not at fault.

35 Senior counsel for the plaintiff submitted the defendant’s evidence should be rejected as inherently improbable essentially because:

(a) It was improbable the defendant would attempt a U turn from the point where he said he stopped the car as there was insufficient space to perform the manoeuvre (the width of the northern side of the road was 6.9 metres, the turning circle of the car at least 9.5 metres) and a three point turn would involve the risk of collision with vehicles coming down the incline from the eastern crest. The defendant was aware of the turning circle of his car. There was no reason to attempt to make the U turn at that point as the available area for turning could have been widened by simply moving into the left-hand turn lane or into the mouth of Kethel Road.

(b) There were no vehicles on that section of the road so far as the defendant was aware and no reason why he could not have performed the U turn without stopping. The explanation that he wished to check the street name was unconvincing as he was already aware he was travelling in the wrong direction and, as he was unfamiliar with the area, there was no prospect a street name would have been meaningful to him. It was not necessary for him to stop to read the sign as he could see it on his approach. If there was a difficulty in reading it, the easiest way to read it was to turn the vehicle into the mouth of Kethel Road, not to stop almost perpendicular to the sign.

(c) The defendant gave evidence that he had checked his mirrors on two occasions but did not see the motorcycle and that he allowed his vehicle to move a split second before impact. The checking of the mirrors, if it occurred, occurred a second or two before the impact. The motorcycle was there to be seen. It would be impossible not to see it, particularly as its headlight was illuminated.

(d) It was totally illogical to put the car into motion at a time when the noise (of the motorcycle) was “right on top of” the defendant and he was not aware of its cause. Common sense indicated that the appropriate course was to hold one’s position.

(e) The defendant accepted he had mentioned none of the matters in (b), (c) or (d) to the police. His explanation for this failure was not acceptable. This evidence was demonstrably false.

(f) (i) The defendant’s evidence was that he stopped in the
eastbound lane near the centreline and at a slight angle to it. He estimated the angle between the car and the centreline at 10 º . The car remained stationary in that position until impact or it may have just started to move a split second before.

(ii) An angle of 10 º to the centreline was consistent with a vehicle travelling normally, coming to a halt in its lane preparatory to making a turn to its right. An angle of 30 º was not consistent.

(iii) The evidence was that the motorcycle was travelling parallel to the centreline prior to the collision. It was not put to the plaintiff in cross examination or asserted in submissions that the plaintiff had been riding on the incorrect side of the road. If the impact angle was 10 º , the damage to the car would have extended to the front door of the car and rearward. All experts agreed the damage sustained by the car was inconsistent with an impact angle of 10 º . The defendant’s expert accepted that there would have been further damage to the offside of the car rearward from the front mudguard had the impact angle been less than 25 º .

Conclusion

36 The principal submission for the defendant was that the Court should accept his evidence as to what happened. I am unable to do so. The fact that the defendant was prepared to make a U turn at an inappropriate place may be capable of explanation on the basis of his inexperience and that he did not weigh up the situation objectively as his mind was focussing upon the fact that he had missed the turn and had to find his way back. It may be that he needed to stop and get his bearings and that confirmation that he did not recognise the name of the intersecting street was part of that process. It may be that, being inexperienced, he thought he should move away from whatever was causing the noise, which by then was very close. Thus each of those explanations may be plausible.

37 It may be that he did look in the rear vision and side mirrors, but if he did it is difficult to comprehend how he could have failed to see the motorcycle. More importantly, I am unable to reconcile the damage to the car with the defendant’s evidence as to the angle at which he had stopped the car prior to impact. It does not seem to me that one can legitimately infer that the defendant stopped the car at an angle in the order of 30 or, on his evidence, that he moved it into such a position prior to impact. His evidence does not justify such a conclusion nor do I regard the evidence of Mr Keramidas as compelling such a conclusion. Accordingly, I do not accept the defendant’s evidence as to the manner in which the accident occurred.

38 Of course, it does not follow from the non acceptance of the defendant’s version of events that the plaintiff’s version must be accepted. However, on balance, it seems to me the plaintiff’s version should be accepted essentially for the reasons advanced by his senior counsel (see [33]). This conclusion is strengthened by the evidence of the plaintiff’s experts which is consistent with the evidence of the plaintiff. There is no incontrovertible expert or other evidence which would militate against the acceptance of the plaintiff’s version. Accordingly, I accept that version as to how the accident happened.

39 It follows that the question of liability must be determined upon the basis that the plaintiff’s version of events is correct. The defendant owed a duty of care to check for traffic approaching in either direction before re-entering Sutherland Road and to give way to such traffic if there was a risk of collision if he proceeded. If the defendant had exercised reasonable care he could not have failed to see the plaintiff’s motorcycle approaching. In my opinion, there was negligence by the defendant in failing to observe the plaintiff’s approaching motorcycle and failing to give way to it. There will be a verdict for the plaintiff in the sum agreed by the parties.

Contributory negligence

40 In Podrebeserk v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494 the High Court held:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damages involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man, and of the relative importance of the acts of the parties in causing the damage.”

41 The defendant submitted the plaintiff was guilty of a substantial degree of contributory negligence, which could not be less than 40 percent because:

(a) he was riding at a speed in excess of the 50 km/h speed limit, which speed his expert, Mr Gibson, estimated at between 56 and 67 km/h (to which was to be added something for the wiped-off speed during the impact) and which Mr Keramidas estimated at 75-80 km/h; and

(b) “[the plaintiff] sees this vehicle doing a U turn. It has its indicator on. Its coming and it keeps coming, and he does nothing, except perhaps trying to get around the front of it, when slowing down, moving to the left, or even just moving to the left, would have prevented injury.” He also failed to keep a proper look out after he moved to the right.

42 The plaintiff accepted that the failure to adjust his speed and to take into account the potential that the defendant would not look was an act of contributory negligence. It was submitted the Court should find the plaintiff’s speed was 60 km/h, particularly as the plaintiff’s expert, Mr Johnston, had estimated the plaintiff’s speed as not being inconsistent with 60 km/h and the assessment by Mr Keramidas contained an error and should be reduced by 10 km/h.

43 The plaintiff submitted the defendant was grossly negligent in that he failed to look in the direction of eastbound traffic and turned straight into the path of the plaintiff. The negligence of the plaintiff was relatively slight. The appropriate apportionment for contributory negligence was 15 percent.

44 The expert evidence as to the estimates of the plaintiff’s speed were conflicting and speculative. In my opinion, the defendant, upon whom the onus rests, has not established the plaintiff’s speed was in excess of the 60 km/h which the plaintiff conceded. However, in my opinion that speed was excessive in the circumstances.

45 The primary responsibility was upon the defendant. It was he who, I have found, in breach of the road rules, created a situation of danger and he who must, in my opinion, bear the larger proportion of responsibility. However, the plaintiff’s evidence was that at all times that he observed the car it was moving. The risk that the car might not stop and that a collision could occur should have been apparent to the plaintiff. In my opinion, the plaintiff should have slowed his motorcycle to a speed which, in the event the car continued, would have enabled the car to pass safely in front of him or for him to move to the left or, if necessary, into Kethel Road. There was no physical evidence the plaintiff took any avoiding action.

46 In my opinion, the appropriate apportionment for contributory negligence is 25 percent.

47 The agreed damages are $2.45 million. There will be a verdict for the plaintiff in the sum of $2.45 million. That sum will be reduced by 25 percent for contributory negligence. Accordingly, there will be judgment for the plaintiff in the sum of $1,837,500 plus costs.

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