Matte v Delandro (No 3)

[2018] NSWDC 235

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Matte v Delandro (No 3) [2018] NSWDC 235

Hearing dates:

21 – 25 May 2018

Date of orders:

28 May 2018

Decision date:

28 May 2018

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

(1) Verdict and judgment for the plaintiff against the defendant for $2,150,000;

 

(2) Order judgment debtor to pay the judgment debt to the New South Wales Trustee and Guardian for administration of the judgment debt by the New South Wales Trustee and Guardian for the benefit of the plaintiff;

 

(3) Noted the judgment debt includes $400,000 for funds administration;

 

(4) Noted the judgment allows $527,000 for damages for non-economic loss;

 

(5) Subject to order 6, order the defendant to pay the plaintiff's costs;

 (6) Plaintiff's costs concerning liability to be paid on the indemnity basis from 18 May 2018.

Catchwords:

CIVIL – TORTS – MOTOR ACCIDENTS – Collision between a motorcycle ridden by plaintiff and a motor car driven by defendant – Quantum of damages agreed – Dispute as to liability – Neither party able to give oral evidence – Defendant made right hand turn across path of plaintiff – Defendant required to give way – Whether plaintiff guilty of contributory negligence – Inferences available from lay and physical evidence – What inferences can be drawn

Legislation Cited:

Civil Liability Act 2002
Evidence Act 1995
Motor Accidents Compensation Act 1999
Road Rules 2014

Cases Cited:

Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
T and X Company Pty Ltd v Chivas [2014] NSWCA 235

Category:

Principal judgment

Parties:

Karm Sabah Matte (Plaintiff)
Yvonne May Delandro (Defendant)

Representation:

Counsel:
Mr R McIlwaine SC (Plaintiff)
Mr J Catsanos (Defendant)

  Solicitors:
Stacks Goudkamp (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2017/50922

Publication restriction:

Nil

Judgment

1. HIS HONOUR: The plaintiff was severely injured when the motorcycle he was riding collided with a motorcar being driven by the defendant. The collision occurred on 14 March 2015. On 28 April 2015 the plaintiff’s sister, Ms Noor Sarsam, completed a Motor Accident Personal Injury Claim Form on behalf of her brother. The plaintiff’s sister is a pharmacist. The relevance of that is that she would have a greater knowledge than most members of our community of medical matters. The plaintiff’s sister said that she completed the claim form on her brother’s behalf because he was “in [an] unconscious state”. She listed as the injuries sustained by the plaintiff these:

“Subarachnoid haemorrhage, subdural haemorrhage, fractured mandible, maxillary sinus fracture, temporomandibular joint dislocation, fractured left femur, intraventricular haemorrhage, intraparenchymal haematoma, decompressive craniectomy, hydrocephalus and severe traumatic brain injury.”

The terminology “decompressive craniectomy” is the name of a medical procedure which was no doubt undertaken because of the severe traumatic brain injury and the term “hydrocephalus” merely means fluid on the brain and again is probably a symptom of the severe traumatic brain injury. The Motor Accident Personal Injury claim form was supported by a medical certificate executed by Dr Martin Scholsem, a neurosurgeon, practising at the St George Hospital. He confirmed that the plaintiff had a severe traumatic brain injury and when asked to state for how long the plaintiff would be unfit for work Dr Scholsem stated “likely forever”.

2. The parties were very fortunately able to agree upon the plaintiff’s damages. They are agreed to amount to $1,750,000 plus a further $400,000 for fund management costs. Because the plaintiff is no longer sui juris the settlement needed to be approved. It was approved last Monday by Letherbarrow DCJ. However the parties have not been able to reach any agreement on the question of liability. That has been left for me to determine.

Pleadings

3. Paragraph 6 of the statement of claim is this:

“The said collision was caused solely by the defendant’s negligent driving.

PARTICULARS OF DEFENDANT’S NEGLIGENCE

(a) failing to keep any or any proper lookout;

(b) failing to observe the plaintiff’s motorcycle approaching the said intersection;

(c) driving or attempting to drive her motor vehicle across the path of the plaintiff’s motorcycle, when it was dangerous to do so;

(d) failing to give way to the plaintiff’s motorcycle;

(e) failing to exercise due and proper care;

(f) failing to take the appropriate evasive action, so as to avoid the said collision;

(g) failing to give the plaintiff notice of her intention to make a right hand turn across his path;

(h) failing to slow down or stop her motor vehicle, so as to avoid the said collision.”

4. In a defence filed on 14 July 2017 the defendant did not admit contents of para 6 of the statement of claim and the particulars of negligence alleged thereafter. The defence raises an allegation of contributory negligence:

“5. In the event that the defendant is found to be negligent, which is not admitted, the defendant alleges the plaintiff is guilty of contributory negligence in that he:

(a) failed to keep a proper lookout;

(b) failed to take evasive action to avoid colliding with the defendant’s vehicle;

(c) was travelling at excessive speed;

(d) failed to exercise reasonable care for his own safety; and

(e) by reason of the above put himself in a position of peril.”

5. The essence of the plaintiff’s case is that as the defendant was making a right hand turn across the path of the plaintiff’s motorcycle she ought to have given way to him and did not. That again boils down to a question of whether she was keeping a proper lookout. The essence of the defence is that plaintiff was travelling at an excessive speed which inhibited his taking evasive action successfully which inhibited his ability to stop his motorcycle so that it did not collide with the defendant’s motorcar, and that in that fashion the injuries sustained by the plaintiff were rendered more severe.

The plaintiff

6. As I have mentioned earlier the plaintiff is not sui juris and his sister brings these proceedings as his tutor on his behalf. The plaintiff has been admitted to the Lifetime Care and Support Scheme established under the Motor Accidents Compensation Act 1999 and that has restricted his damages in accordance with s 141A of that Act. The plaintiff has been unable to give evidence and from what I have been told it appears that he will never be able to give any evidence at all about how he came to be in the state in which he now is. Indeed he has not participated in these proceedings and has not been present at any stage during the evidence that has been given or the submissions that have been made.

7. At the time of the collision the plaintiff was 22 years old. According to the claim form submitted by his sister he was a boilermaker by trade. He had an unrestricted Class C licence which permitted him to drive any car, implement or tractor. There is no suggestion that he was not licenced to ride a motorcycle. According to the COPS event number E494258291, exhibit D in these proceedings, he had five years and eight months driving experience. At the time of the collision he was wearing a full face motorcycle helmet. Evidence has also been given that he was wearing a leather jacket and denim jeans. The plaintiff’s driving record has not been put before the Court.

8. If the plaintiff had a poor driving record, one would expect that to have occurred because, in the normal course an injured motorist would be cross examined about a poor driving record and, indeed, in the circumstance of this case, were the plaintiff a serial speedster, one would expect the defendant to seek to tender preceding driving convictions or the payment of preceding fines for speeding offences as tendency evidence showing that the plaintiff had a tendency to drive motor vehicle at an excessive speed. Such was not done so the inference to be drawn is the plaintiff had a good driving record.

Other motorcyclists

9. On the evening in question, the plaintiff was a member of a group of motorcycle riders. Evidence concerning that group was given by another member of the group, Mr Luke Botic. At the time of the collision now in question, Mr Botic was 20 years old. When giving evidence, he told me that he was a qualified carpenter. I do not know whether he had completed his apprenticeship as a carpenter at the time of the collision. That is of no moment. Mr Botic told me that he had met a group of fellow cyclists at the McDonald's outlet at Wilson Parade near the intersection of the Princes Highway and Heathcote Road. He told me that there were "five of us". They were the plaintiff, Mr Botic, Dani Isho, Don Misevski who was then aged 45, according to Mr Botic, and Benny Geti. Each of the other four members of the group was a friend or acquaintance of the plaintiff. Despite the fact that there was a group of five motorcyclists, a car was being drive by one member of the group.

10. At p 64 line 1 of the transcript, Mr Botic told me that "Dani and Benny were changing between car and motorbike". That means that at any one time either Dani or Benny was driving a motor car. There is no suggestion that the car was towing any motorcycle. This made much of Mr Botic's evidence confusing. If one of the group of five were driving a motor car, then there would only be four driving motorcycles. However, Mr Botic maintained, on a number of occasions, that there were five motorcycles being ridden by members of the group. Nevertheless, he said on a number of occasions that the car was being driven behind the group of riders. On p 65 of the transcript this evidence was given:

"Q. There were three motorbike riders in addition to Mr Matte?

A. No, no, no, there were five at the lights. I'm not a hundred per cent sure if Dani was riding at that time of the day/night.

Q. If he wasn't riding, who would have been on the other bike?

A. I don't know.

HIS HONOUR

Q. Was there a sixth person who was generally in the car..?

A. I wouldn't be able to answer that question. I came from my house, they rang me, said, 'Would you like to go for a ride to the national park?' I said, 'Hell yes, I haven't been for a very long time,' and we met at the McDonald's."

Again, the question of a sixth person was raised, but in other places of the transcript. When asked about the presence of a sixth person, Mr Botic said, "Not that I know of." Such answers can be found at p 68 line 28 and p 75 line 40. Nevertheless, at all relevant times Mr Botic maintained that there were three bikes being driven ahead of him and that behind the front three bikes were bikes being ridden by him and by Mr Don Misevski to whom Mr Botic referred as "Donny", though often the transcript records him saying "Bonny", which is how I initially heard what he was telling me.

11. It is, therefore, impossible for me to determine, on Mr Botic's evidence, whether there were a group of five, meaning that four persons were riding motorcycles and one was driving a motor car, or whether there were five motorcycles being driven by the five persons identified by Mr Botic and that there was another person completely unidentified who may have been driving a motor car. Pushed to making a finding, I could only find that there were, at any one time, four persons driving motorcycles in this group, they being the plaintiff, Mr Botic himself, Mr Don Misevski and the fourth motorcycle being driven by either Dani Isho or Benny Geti.

Plaintiff’s intended journey

12. Having met at the McDonald's outlet on the corner of the intersection of the Princes Highway, Heathcote Road and Wilson Parade, the group travelled north along the Princes Highway through the suburb of Engadine towards the entrance to the Royal National Park at Farnell Avenue, which is in the suburb of Loftus, which is the next suburb with a railway station after the suburb of Engadine. Part of the urban development between Engadine and Loftus has been named Yarrawarrah but that essentially is merely a part of Engadine. It would appear that the idea was then to drive down Farnell Avenue to Audley and through the national park probably to return to the Princes Highway at Waterfall and then to return to the intersection of the Princes Highway and Heathcote Road.

13. Before leaving the group of people amongst whom the plaintiff was travelling I ought, having referred to the plaintiff's condition, point out that no adverse inference could possibly be drawn from the fact that the plaintiff is unable to give evidence. His inability to give evidence is completely explained by his severe injuries.

The defendant

14. The defendant was at the time aged 78. She was living at that time in the suburb of Loftus. She participated in an electronically recorded interview with the police at Sutherland Police Station on 19 March 2015. During that interview the defendant provided a written statement that she had prepared prior to attending at the interview. It was read into the record of the interview. The interview is exhibit 6 before me and the statement which she gave to the police is exhibit 7. Relevantly, in that statement the defendant says this:

"I am a teetotaller.

…

I have been driving a car for 45 years and during that time I have never received any speeding tickets or infringements other than parking. I have also never been involved in an accident. During these 45 years, I have regularly driven to local shopping centres, to Wollongong and on family holidays.

The intersection at the corner of the Princes Highway and Anzac Avenue is very familiar to me as I attend square dancing twice a week and have done so for the past 12 years at Engadine West Public School."

15. During the interview the defendant said that she sometimes took to square dancing with her a gentleman but there was no one accompanying her on the evening of the collision. She was travelling alone. However, it is clear that the intersection in question, the intersection of the Princes Highway and Anzac Avenue at Engadine, was well-known to her and she was following a route that she took at least twice each week, the route between her home at Loftus and the Engadine West Public School where she regularly participated in square dancing.

16. The defendant's licence was endorsed requiring her to wear spectacles. She admitted in the interview that she was not wearing spectacles at the time of the collision. However, she maintained that she did not need spectacles for long distance sight but merely for reading. In the past, I know from the interview, that the defendant had had a cataract which had been removed and it has been submitted by Mr Catsanos for the defendant that it might well be that she took a driving test wearing spectacles because of the cataract. Her licence was then marked requiring her to wear spectacles when she was driving but after the surgery to remove the cataract it was not necessary for her to wear spectacles to drive safely and the defendant may well have forgotten about the endorsement on her licence and the endorsement could be so old that her forgetting the fact of the endorsement is acceptable.

17. In any event, the defendant adduced evidence from Dr James Davies, an ophthalmic surgeon, who first saw the defendant in February 1998 and had been seeing her every four to six months since that time. His last assessment of her prior to 14 March 2015 was on 21 November 2014. Dr Davies tells me this in his report of 26 April 2018 which is exhibit 2:

"According to Austroads publication "Assessing Fitness to Drive 2016" (copy enclosed), her unaided binocular visual acuity was still satisfactory to hold an unconditional driver's licence without wearing distance glasses."

18. I therefore accept that although she was not wearing spectacles at the time of the collision, that she had sufficient ability to see at distances that she was fit to hold an unconditional driver's licence. In other words, the non-wearing of spectacles is not a relevant consideration in the occurrence of this collision.

The vehicles

19. Tendered in the defendant's case is a statement of Senior Constable Natalie Bromage of the Metropolitan Crash Investigation Unit. The senior constable's statement bears date 14 September 2015. In her statement Senior Constable Bromage provides certain descriptions of the vehicles involved, that is, the motorcycle being ridden by the plaintiff and the motor car being driven by the defendant and certain other details of the vehicles can be gleaned from the COPS event, exhibit D.

20. The plaintiff was driving a Yamaha YZF R1 manufactured in 2011. It bore the registration number PCM 43. The predominant colour of the motorcycle was blue. The COPS event describes the motorcycle as a Yamaha 1000 (R1) and the inference to be drawn from the evidence is that it was a 1000cc motorcycle which I understand to be a powerful one. Senior Constable Bromage examined the tyres of the motorcycle. She found the front tyre to be in good condition but the rear tyre to suffer from scuffing but that would appear to be the result of the collision or events immediately prior to the collision and did not represent the state of the rear tyre of the motorcycle prior to the events in question. There is no suggestion that there was any mechanical defect in the plaintiff’s motorcycle.

21. The defendant’s vehicle was a gold coloured Nissan Pulsar sedan manufactured in 2003. It had automatic transmission. It would appear from what the defendant said when interviewed by the police that she had owned that vehicle from the date of its manufacture, that is she bought it as a new vehicle. When the Senior Constable examined the tyres of that vehicle she found all of them to be in good condition. Again, there is no suggestion that there was any mechanical defect in the defendant’s motorcar.

Situs

22. Senior Constable Bromage provided this description of the road surface where the collision occurred. That description is this:

“Princes Highway, Engadine, within the vicinity of the collision and in the direction of travel of the Yamaha consists [of] a slight downward grade with a very slight right-hand bend. There are three lanes in this direction with lane 1 being a left-hand turn lane into the side street, Anzac Avenue, and lane 2 and lane 3 continuing straight along the Princes Highway in a general northbound direction. The side street, Anzac Avenue, has two lanes, the lane running in each of the general east-west direction. The Princes Highway in a general southbound direction consists of four lanes with lane 1, lane 2 and lane 3 continuing straight along and lane 4 being a dedicated right turn lane into the side street, Anzac Avenue. The opposing flows of traffic are separated by a raised concrete median strip. The road is bordered on both sides by concrete guttering. The western side of the Princes Highway is lined with low density housing and the eastern side runs parallel to the railway corridor.

Princes Highway within the vicinity of the collision is governed by a 70km/h speed limit. It is constructed of sealed bitumen and was in good condition. An examination of the road surface found no evidence of contaminants or debris which would have contributed to the collision.”

23. Exhibit A is a series of ten photographs showing the path being driven by the plaintiff and his fellow riders northbound along the Princes Highway from a point south of the intersection of the Princes Highway and the Old Princes Highway which debouches onto the Princes Highway on its western side. As one approaches the intersection of the Princes Highway and the Old Princes Highway there is a KFC outlet on the southern corner of the T-intersection. The intersection itself is governed by traffic control lights. The intersection is in essence on the crest of a low hill. Having driven through the intersection the highway descends slightly towards the next intersection on the left which is again a T-intersection, being the T-intersection with Anzac Avenue. After that intersection the highway continues to descend at a slight incline to a point before it commences and uphill left-hand sweep.

23. Exhibit B is a series of eight photographs taken from a vehicle travelling south along the Princes Highway from north of the intersection of the Highway and Anzac Avenue. The first photograph shows the dedicated right-hand turning lane and the three lanes for traffic heading south along the Highway. The further photographs in exhibit B give further views of the approach to the actual intersection but shortening the distance between the northern-most so that exhibit 6 shows very clearly and very closely where a vehicle may stop to observe traffic coming northward towards it, before turning right into Anzac Avenue. One can see in photograph A6 a SUV that has completed a turn into Anzac Avenue and one can see a vehicle described by Mr Botic as a Getz which appears to be stationary about to make a right-hand turn from the Princes Highway into Anzac Avenue. Photographs B7 and B8 show the intersection from a different angle, B7 essentially showing the intersection from directly east of Anzac Avenue and B8 showing the intersection from what appears to be the western side of the Highway immediately north of the commencement of Anzac Avenue.

24. Based upon what has been said by Senior Constable Bromage and what can be seen in the photographs, it is clear that there is a good line of sight, for vehicles turning right from the Princes Highway into Anzac Avenue, back up a slight incline to the crest where traffic control lights govern the intersection of the Highway and the Old Princes Highway.

Time of collision/lighting

26. The COPS event, exhibit D, says that the accident occurred at 19:25, that is, 7.25pm. In her statement to the police, the defendant said that it occurred at approximately 7.15pm. Meteorological evidence provided by Geoscience Australia contained in exhibit 15 tells me that at Engadine on 14 March 2015 the sun set at 19:17, that is, at 7.17pm. The same exhibit also tells me the times of civil twilight, nautical twilight and astronomical twilight. Each of those provide a later time for "set", the relevant time being, of course, civil twilight which showed the ending of sunset at 7.42pm.

27. It is necessary, therefore, to consider lighting. According to the COPS event, exhibit D, it was "dusk", meaning the sun had set but there was still natural twilight, consistent with the meteorological evidence. Importantly, Senior Constable Bromage says this in her statement, but one must bear in mind that she arrived at the scene of the collision at about 9.30pm on 14 March 2015:

"At the time of my arrival the weather was fine and the road and surrounding areas were dry. Visibility in the area was good, with no fog or other airborne obscurities present. I arrived at the scene during hours of darkness and I would describe the general vicinity as dark with adequate street lighting provided."

The Senior Constable's remarks about the climactic conditions are consistent with what is contained in the COPS event, that the weather was fine and that the surface, that is, the road surfaces, were dry. There is no suggestion that there was a bushfire nearby, which can often occur in the vicinity of Engadine, and there were no "airborne obscurities" present, according to the Senior Constable and no one has suggested that there may have been a bushfire on that day. The altitude of Engadine is such that one would not think it to be shrouded by fog at that time of year and it certainly was not, according to the Senior Constable, and was not according to any witness who gave evidence. The important thing to note from the Senior Constable's statement is that there was adequate street lighting provided.

28. In her statement to the police, the defendant said that she had a "clear view of any oncoming traffic". She was able to see up to the intersection of the Highway and the Old Princes Highway because she saw "two cars were at the lights and were just starting to move off from the traffic lights". In other words, she could see all the way up to the crest where the intersection of the Highway and the Old Princes Highway is. From this matter it ought be clear that there was no contribution to this collision because of any mechanical defect or fault in either of the vehicles or because of any problem with the road surface, any climactic consideration or any defect in the lighting of the road surfaces in question. The only suggestion for the occurrence of this collision was human error.

Evidence of Mr Jake Collins

29. The plaintiff's case is based upon assessments made by two witnesses, Mr Jake Collins and Mr Botic. At the time of the collision, Mr Collins was 22 years old. He obtained a learner's motorcycle licence at the age of 16 but, as far as motorcycles were concerned, he still had a learner's licence at the time of the collision. However, he had obtained a learner's licence to drive motor cars at the age of 17 and obtained a red provisional motor car driver's licence at the age of 18, sometime in 2009. At the time of the collision now in question he had been a motor car driver for five years.

30. He told me that he drove motor cars regularly every day. At the time of the collision, he had a job as a delivery driver for a Pizza Hut outlet at Sutherland and his delivery area was "everywhere in the Sutherland Shire", which means he would have delivered pizzas to not only Sutherland but Loftus, Engadine and perhaps Heathcote and perhaps even Waterfall as well as the suburbs east of Sutherland.

31. At the time of the collision now in question, he was on his way from his home at Kirrawee to an RSL club at Engadine where he was going to celebrate a friend's birthday. He was required, to reach his destination, to make a right-hand turn into Anzac Avenue. He in fact followed the defendant's vehicle. He told me that when he reached the right-hand turning lane he approached a vehicle which was stationary at the intersection. That vehicle was the defendant's Nissan Pulsar. He stopped behind it. He conceded in cross-examination that he was behind that vehicle for at least 3 seconds, which ties in with what the defendant told the police that she was stationary at the intersection for approximately 3 seconds.

Defendant unable to give evidence

32. I ought interrupt my consideration of Mr Collins's evidence to say something which I should have said earlier when discussing the defendant. The defendant gave no oral evidence. Like the plaintiff, she did not participate in these proceedings. The defendant tendered a letter from Conjoint Associate Professor Peter Gonski, Director of Geriatric Medicine with Southcare which provides age and extended care from premises at the Sutherland Hospital. The Associate Professor's chair is at the University of New South Wales. He is clearly an eminent gerontologist. In his letter Associate Professor Gonski said this:

"This is to confirm that I have assessed Mrs Delandro. She suffers from moderate vascular dementia. She would not be able to participate in a court case due to her memory loss. She has global abnormalities on testing relating to her cognitive impairment."

It is accepted by the plaintiff that the defendant could give no relevant evidence and in particular would not be able to be meaningfully cross-examined. Mr Catsanos, who appeared for the defendant, was prepared to call the defendant's daughter to give me some evidence about that but that was not necessary in light of the information provided by Associate Professor Gonski.

33. In the circumstances, no adverse comment was made about the failure of the defendant to give oral evidence and therefore no adverse inference can be drawn against the defendant's case because of her inability to give evidence. More than three years have passed between the occurrence of the collision now in question and the commencement of the hearing last Monday and it would appear that there has been an onset of dementia in the meantime, probably more recently than earlier. However, the parties have available to them the electronically recorded interview that the defendant had with the police and her statement.

34. Unfortunately, neither an audio-visual copy of the electronically recorded interview nor merely an audio copy of the electronically recorded interview was available to the parties and so I could not either see and hear it or merely hear it to confirm the impression I gained from reading the interview that at the time the defendant did not suffer from any form of cognitive impairment. Thus, in a case involving two human beings involved in a motor collision where the fault in question is pure human error, neither of the parties is able to give any evidence other than that obtained on behalf of the defendant prior to her commencing to suffer from dementia. This is most unfortunate but such things unfortunately happen from time to time.

Evidence of Mr Jake Collins, cont’d

35. I return then to the evidence of Mr Collins. While he was stationary in the right-hand turning lane the witness told me that there were motorcycles travelling northbound. His evidence appeared to be confusing but eventually in cross-examination in order to deal with an objection this occurred:

"The witness is trying to say that while he was stationary he can't recall whether any motorbikes went through but he did see others go through the intersection before he came to a stop.

Q. Is that what you're saying?

A. Yep.

CATSANOS

Q. Do you say that there were no bikes immediately in front of the two bikes that we've been speaking of?

A. Yes."

However, it became clear from the evidence subsequently given by Mr Botic that the plaintiff's group of riders were the first to stop at the red traffic light which governed the intersection of the Princes Highway and the Old Princes Highway as they approached it. In other words, when the light turned green to permit them to proceed northward again, they were the first motorcycles which did so. Insofar as Mr Collins saw motorcycles passing him as he was either approaching the right-hand turning lane or travelling in it prior to stopping behind the defendant's vehicle, such motorcycles must have come either from the Old Princes Highway or from Anzac Avenue itself having turned left into the Princes Highway to proceed northbound.

36. Mr Collins was driving a motorcar described as a Honda S2000 which he told me is a convertible. That was a manually driven motorcar. The witness conceded that this vehicle was “a Roadster” which maybe meaningful to Mr Catsanos but means absolutely nothing to me. However, the witness did admit that in his vehicle he was positioned closer to the road surface than one would be if one drove in a “normal” sedan motorcar. What springs immediately to mind as a “normal sedan motorcar” is a Holden Commodore or Ford Falcon, a vehicle traditionally driven, according to legal folklore, by the Nominal Defendant. The inference to be drawn from the cross-examination of Mr Collins is that the Nissan Pulsar being driven by the defendant, could be placed in the category of a normal sedan car. Then the witness went on to say this:

“Q. So, when you came to stop behind the Pulsar you would have - your head would have been looking into the back bumper bar area of the Pulsar, that sort of area?

A. Yes.”

37. He acceded to the proposition that he found it harder to see around larger vehicles if he drove too close towards them presumably, in a line of traffic or the like. He also conceded that he did not have a clear view in front of him because of being stationary behind the defendant’s motorcar, but he had a clear view of the lanes to his side looking out the window of his car. Mr Collins was travelling alone. He told me that he thought his roof was up, and that, if his roof were up, his windows were probably wound down.

38. The witness admitted that there were a number of matters which could have obscured his vision of what was occurring to his immediate left, that is obscured his vision of vehicles travelling northbound along the Highway towards its intersection with Anzac Avenue:

“Q. Is it fair to say that the combination of factors being the height of your car from the ground and the configuration of this intersection and the position of the Pulsar all operated to obscure your view to some extent the north heading traffic?

A. To some extent.”

In chief Mr Collins told me this:

“I saw the car [the defendant’s motorcar] turn in front of Anzac Avenue and then the..motorbike ran into the side of the car, when it was trying to cross past - like, the car cut in front of the motorbike, as the motorbike was trying to proceed straight ahead through the northern lane.”

Later in chief the witness gave this evidence:

“Q. Are you able to give us an estimate of the speed that the cycles and the cars were travelling? I am talking now about the ones that had passed through the intersection?

A. Approximately driving the speed limit which was 70 ks per hour.

Q. Similarly, are you able to give an estimate of the vehicles and bikes that were travelling towards the intersection?

A. It was also about the same speed.”

39. When asked whether Mr Collins formed a view as to whether it was safe for him to follow the Nissan Pulsar making the right-hand turn he said he could not because there was “too much traffic coming” and he said that he believed that if he had followed the Nissan Pulsar he may have collided with another vehicle. He also said that the motorcycles which he saw coming towards the intersection had their headlights on. Mr Botic told me that the motorcycle being ridden by the plaintiff was one in which the headlight automatically came on when one turned the engine on and I accept that evidence. Learned counsel told me that that is a standard provision on all motorcycles in recent years.

40. Mr Collins told me that he had no difficulty in the conditions then prevailing of seeing the motorcycles coming towards the intersection, one of which was to collide with the defendant’s motorcar.

41. Mr Collins made it clear that as far as he was concerned the plaintiff was travelling in lane 2 if one numbers the lanes from the western side of the carriageway. Lane 1 is the lane which requires one to turn left into Anzac Avenue and lane 2 is the middle lane and lane 3 is the lane closest to the centre line of the highway. When asked whether the plaintiff could have taken some measure to avoid the accident Mr Collins said this:

“A. So as like as the car turned, if he were to swerve he would have - like if the motorbike were to serve he would have hit the, the gutter on the inside lane or he was, he wouldn’t be able to get around the car enough to make it to the other side of the road.

Q. He wouldn’t have been able to get around the front of the Pulsar?

A. Yeah.

Q. Why was that? Was that because of the distance he was?

A. Yes it was..

Q. Approximate to the vehicle when he turned?

A. Yes.

HIS HONOUR

Q. So there’s no way in your opinion that he could have got around the Pulsar if he had swerved to the right?

A. Yeah, ‘cause the – ‘cause he was, the lane that he was in if he..tried to swerve to the right, he would have hit the back of the car anyway.”

That was the last statement that the witness made in examination in chief.

42. In cross-examination Mr Collins was pressed to try to tell me where the defendant's vehicle was prior to its commencing to make the right-hand turn into Anzac Avenue. The witness agreed that the defendant's vehicle was in the position shown by the sedan motor car stationary and waiting to turn right in photograph A10. In other words, if one has regard to the area from which one can turn from the dedicated right hand turning lane into Anzac Avenue, the defendant's vehicle had gone a little south of the southern end of the dividing island but had gone nowhere near the northern end of the continuation of the dividing median strip so that the defendant's vehicle was required to turn in an arc rather than, for example, almost make a crossing at 90 degrees to the highway which could happen if one drove one's vehicle to the northern end of the continuation of the median strip to the south.

43. It was suggested to the witness that he did not see motorcycles approaching from the intersection of the Old Princes Highway and the Highway prior to the defendant’s commencing to make her right-hand turn. He would not accede to that proposition. He said he knew that there were bikes making the approach towards the intersection. He then gave this evidence:

"Q. The reason you moved up - the purpose of you moving up and what you were doing at the point you moved up was to see if it was safe for you to go?

A. Yes.

Q. At that point, you didn't know a collision was imminent, did you?

A. I wasn't one hundred per cent sure but I knew that there was something going to go.

Q. At the point you moved up, that's when you looked and saw the bike, and it was clear to you then that an accident was about to happen? Correct?

A. Yep."

I interpret the words "something going to go" in the answer to the second question as meaning "something going to give" or "something going to happen". In other words, what the witness was saying was, although he was "not one hundred per cent sure", he thought it likely that some misadventure was about to occur. However, he could not be sure of that until he moved up to take the place that had been taken initially by the defendant's motor car.

44. Mr Collins was interviewed, but very briefly, by the police on the evening of the accident. The statement was this:

"Lots of traffic northbound on Highway. Lady went to turn right across the highway in the gap between cars going north. Must not have seen the bike as she got in front of it and then the bike hit the passenger door of the car. Lady didn't give way."

Subsequently, Mr Collins was interviewed by a solicitor on behalf of the plaintiff. He made a statement on 2 September 2017. That statement clearly was made a considerable time after the accident had occurred. In that statement he said this:

"8. I watched as a group of motorcycles were ridden towards the intersection, from the south and then continued along the Princes Highway. These motorcycles were not speeding.

9. I then saw another motorcycle which was being ridden more slowly than the other motorcycles. It was also coming towards the intersection on Princes Highway.

10. Suddenly the car in front of my car drove forward into the intersection, directly across the path of the motorcycle. I saw the motorcycle ride into the passenger side of the car, with the motorcyclist being thrown off the motorcycle on impact.

11. I was shocked that the driver of the car drove into the intersection in front of the motorcycle.

12. I later observed that the driver of the car was an elderly lady.

13. I later gave a statement to the police and told them…

14. From what I saw, the motorcycle was definitely not speeding. If anything it was being ridden in a proper manner and probably under the speed limit. As an experienced motorcycle rider I can say that the motorcyclist did nothing wrong."

45. Mr Collins did not adhere to a number of the statements recorded in that document. He would not agree that the motorcycle being driven by the plaintiff was travelling at a lesser speed than the other motorcycles that he saw approaching the intersection. He believed that they were all travelling at or about the speed limit. He also agreed that the motorcycle being driven by the plaintiff was not immediately preceded by other cycles. Other cycles had long since gone past him, because he was stationary behind the defendant for at least three seconds and, by the time he stopped to wait behind the defendant other cycles had passed and, as I have already found, they clearly must have originated from either the Old Princes Highway or Anzac Avenue itself.

46. In cross-examination Mr Collins maintained that there were two motorcyclists approaching the intersection, that is, the plaintiff who was in lane 2 and another cyclist who was in lane 3, and he said that there were other cyclists behind them. At p 32 line 46 the witness said this:

"I just know that there was, when I pulled up, a bike was in the right hand lane that went past the car as it turned.

Q. Past what car?

A. The … Nissan Pulsar.

Q. It went past her before she turned?

A. No, as she turned, the car, like, as she turned…the bike went past and then the other bike, yeah.

Q. The bike just missed her, is that what you're saying?

HIS HONOUR: No, before we get there--

Q. I want to know, you say the lady is turning right?

A. Yep.

Q. Does the bike go behind her or in front of her?

A. Behind.

CATSANOS

Q. So she turns right and the bike goes past her?

A. Yes, in the right lane.

Q. In the right lane, so did it just miss her, did it?

A. Yes. Well, I wouldn't say just missed her, but it was there also.

Q. So there was a bike coming along and she was able to make her turn and clear that bike?

A. Yeah, she cleared the first bike, the first lane [lane 3], that didn't, and then hit, the person was on the second bike that she collided with."

The clear point of this evidence is that there was a motorcyclist in lane 3 and a motorcyclist in lane 2, the plaintiff, and that as the defendant turned right the cyclist in lane 3 was able to pass behind her but the plaintiff was unable to avoid colliding with the defendant as the plaintiff was driving in lane 2. It is clear from a number of things that the collision occurred in approximately the middle of lane 2. I will refer to that evidence a little later.

47. The cross-examination of the witness continued about this evidence given by Mr Collins, but some of that cross-examination was sparring over words being used such as "riding side by side." A little later the witness said that the cyclist in lane 3 swerved closer to the median strip in order to pass behind the defendant's vehicle. Whilst the witness did not refer to the median strip but "the gutter" in his answer to the question at p 35 line 40, it is clear that he meant the median strip.

48. The witness was questioned to the effect that he had not mentioned this cyclist in lane 3 to either the police or to the solicitor who took the statement from him and he conceded that he had not, but he pointed out that he had not been questioned to the extent that he was being questioned in the courtroom. I did not form an adverse impression about Mr Collins in that regard. What might be important to a lawyer is not necessarily important to a lay witness. I accept what Mr Collins had to say about the cyclist in lane 3 who managed to avoid colliding with the defendant as the defendant made her right-hand turn. Furthermore, that is consistent with some of the evidence given by Mr Botic.

49. When asked about the motorcycles that were travelling behind the motorcycle being driven by the plaintiff, Mr Collins said that the other bikes were either two or three bike lengths behind the plaintiff's motorcycle. It was suggested to Mr Collins that the plaintiff was doing "at least 90 kilometres an hour" but that was rejected by Mr Collins. The witness also agreed with this proposition:

"Q. At the point you saw him, there was no way he could avoid the collision?

A. From what I saw of when the car turned, yes."

Although that answer does not indicate that the first time Mr Collins saw the plaintiff on his motorcycle was when the defendant commenced to make her right-hand turn, that is implicit in the answer he gave. There is nothing inconsistent with that and his earlier observation that he had seen the approach of the motorcycles prior to the defendant’s making her right-hand turn. A little later on the same page of the transcript, p 53, Mr Collins made it clear that at the time the defendant made her turn, her vehicle blocked his vision but then when she had proceeded further into the turn, he could see the imminent collision of the defendant's motor car and the plaintiff's motorcycle.

50. On an issue raised by the defendant's witnesses, Mr Collins said that although the roof of his vehicle was up, his windows were probably open and that he did not hear any loud revving of motorcycles at any time before the accident and he said that the motorcycles were making no noise "louder than normal" and that he did not hear any motorcycle engine noise that amounted to "screaming."

51. One thing that ought be noted about Mr Collins is that he did not know the plaintiff or the plaintiff's family. There is no suggestion that he knew the defendant or her family. He is completely independent of the parties. His evidence has been criticised by the defendant as, in essence, being not consciously but unconsciously sympathetic towards the plaintiff because Mr Collins was, like the plaintiff, a motorcyclist and perhaps sympathy might arise in a person such as Mr Collins because of the severe injuries that the plaintiff had suffered. The other submission put to me on behalf of the defendant about Mr Collins's evidence is that he formed the view at the time that the defendant had failed to give way to the plaintiff; therefore, the fault for the collision lay with the defendant, and that view of the witness has coloured his perception of what happened.

52. I cannot ignore that such things may have subconsciously occurred as far as Mr Collins is concerned. However, I formed a favourable impression of him and I believe he tried to tell me the truth so far as he perceived it. For example, he resiled from the statement recorded by the plaintiff's solicitor both before it was drawn to his attention and after it was drawn to his attention. That does not indicate partisanship, but it does indicate that he is perhaps able to be coaxed along by a solicitor to give a more favourable statement than he ultimately gave. I also have to bear in mind the fact that the statement that the witness gave to the police was exiguous and that he was only then later asked to turn his mind to the circumstances of the collision when he made the statement to the solicitor in September 2017 and that he was only essentially prodded about the extent of his recollection some three years after the accident occurred when he gave evidence.

53. The weight, therefore, that I give to his assertion that the plaintiff was travelling only at 70 kph, the speed limit, is questionable. However, what stands out in my mind is that he did not see or hear anything which suggested that something abnormal or unusual was occurring prior to the collision. He does not suggest that the speed at which the motorcycles were being ridden was excessive. For example, a witness might say that a car is being driven at the speed limit and the speed limit might be 70 but the car might be doing more like 75 or perhaps approaching 80. However, it is different where the speed limit is 70 and a car is travelling at 100 kilometres per hour, the difference between the ordinary speed and the speed actually driven being so great that it draws attention. Similarly, attention is drawn when there are lines of traffic proceeding at the usual rate of progression for that stretch of the carriageway, but then some other vehicle travels at a much greater speed. The important thing to me about Mr Collins's evidence is that he did not perceive anything unusual, except the decision of the defendant to make a right-hand turn, which she did.

LUNCHEON ADJOURNMENT

Evidence of Mr Luke Botic

54. I turn now to consider the evidence of Mr Luke Botic, insofar as I have not already considered it. He gave evidence of the group of motorcyclists proceeding northward along the Princes Highway towards its intersection with the Old Princes Highway. The lights were red and the group stopped at those lights until they turned green. As they went ahead, three riders were in front and he was behind, accompanied by Mr Misevski. In his evidence-in-chief Mr Botic said that the plaintiff was in the group of three that preceded him and Mr Misevski. At p 60, commencing at line 20, he said this:

“What I observed, once the traffic light went green, we continued our journey. The fellow three bikers in front of me went first. I went second, in the natural order. I was roughly 20 metres behind. Then, I saw a silver car, on the opposite side of the road, turn in front and my friend went straight into the middle of the car.”

Again, it should be pointed that the defendant’s car was gold, not silver. Furthermore, the witness said that he was roughly 20 metres behind the group ahead. He maintained in that evidence that there were three cyclists ahead of him, but I could only be satisfied, on the balance of probabilities, that there were two. Furthermore, two ties in very neatly with the evidence of Mr Collins.

55. Mr Botic said that he was doing 70 kilometres per hour. He explained this practice, “In the riders’…course…, they teach us every three seconds to check your blind spots and check your tachometer.” By “tachometer”, the witness clearly meant his speedometer. Mr Botic told me that that was a practice he followed on 14 March 2015. Mr Botic said that the group ahead of him were doing the same speed, 70 kilometres per hour. He knew that because “they weren’t pulling away from me”. Mr Botic went on to tell me that he saw the rear brake light of the plaintiff’s motorcycle illuminate. He said that caused him to touch his brakes as part of a “natural human instinct”. He told me that the next thing that happened was that the defendant’s car pulled out from the right-hand turning lane and that the plaintiff then drove straight into the middle of the motorcar.

56. Contrary to what Mr Collins told me, Mr Botic said that the plaintiff was riding in lane 3. He went on to give this evidence:

“One motorcycle that was in lane 2 veered off to the left. The one that was in lane 3 with Mr Matte veered off to the right and poor Karm went straight into the middle when this car pulled out in front of us.”

Of course, there is evidence from Mr Collins of a car travelling on the right-hand side of the plaintiff, that was travelling in lane 3 that veered slightly towards the median strip and thus avoided colliding with the defendant’s vehicle. I am prepared to accept that there was a vehicle on the right-hand side of the plaintiff, that was travelling lane 3 that managed to avoid colliding with the defendant’s motorcar. Who the driver of that motorcycle was is not stated by Mr Botic at all. Furthermore, he did not identify who it was who may have been the driver who veered to the left, but I cannot be satisfied that there was a driver who veered to the left because I can only be satisfied that there were two motorcycles ahead of him and Misevski, who was riding beside him.

57. Much of the cross-examination was taken up with trying to identify whether there two or three cycles ahead of Mr Botic and Mr Misevski. I have already made a finding in that regard. Mr Botic went on to admit that he made a statement to the police and that statement is in fact exhibit E. It says this:

“4. About 7.15pm on Saturday, 14 March 2015, I was riding about four seconds behind my friend Karam Sarsam. We were riding along Princes Highway, Engadine. We were doing the speed limit of 70 km/h.

5. I was travelling in lane 3 of 3 and Karam was also in the 3rd lane with me.

6. I saw a lady turning right from Princes Highway into Anzac Avenue, Engadine. She didn’t stop for the corner at all and turned slowly across the traffic.

7. I saw Karam put his brakes on and swerve to avoid the other car. I also put on my brakes.

8. Karam hit the car on its side. Karam slid up the road and just missed the traffic island.

9. The car that hit did a 360 motion on the impact and the car came to a stop.

10. I stopped my motorbike and ran straight to Karam. I put him immediately in the recovery position. I tried to talk to Karam, but he was not responding.

11. Karam was bleeding from the mouth and left thigh.

12. Once I turned Karam to his side, he started to breathe again.”

There are a number of things about the statement which need to be noted. For reasons I shall very shortly give, I cannot be satisfied on the balance of probabilities that the plaintiff was travelling in lane 3. I accept that he was travelling in lane 2, the position in which Mr Collins said he was travelling. Mr Botic said in his statement that the defendant did not stop before making the right-hand turn. That was her evidence and the evidence of Mr Collins and I am happy to accept that evidence. Whether the plaintiff actually swerved to avoid the defendant’s car or whether that was the result of applying his brakes is a moot question. The other thing that should be noted is that the car did not do a 360° turn. It is clear it made a 180° turn. The other thing to note is that Mr Botic was clearly concerned about the health of the plaintiff after the accident. What he described was something that no doubt would have been shocking for him, caused him grave disquiet and grave concern for his friend and no doubt may have affected his approach to making the statement that he made to police and to the evidence which he gave before me.

58. Mr Catsanos, in cross-examination, referred Mr Botic to the statement that he was riding “about four seconds” behind the plaintiff. Of course, if one travels at 70 kilometres per hour, one covers 19.45 metres per second. So, if one was travelling four seconds behind another motorist or cyclist also doing 70 kilometres per hour, one would be nearly 78 metres behind the other. At the top of p 69 this evidence was given:

“Q. If you were four seconds behind him and you’re confident that's right? You’re confident about that that?

A. 100%.

Q. If you were four seconds behind him, how many metres do you say there were?

A. Between 20 to 30.

Q. If you were four seconds behind him, you would have been close to 80 metres behind him. Could you have been 80 metres away?

A. It’s a possibility.

Q. If you are 80 metres behind him, that means he was pulling away from you, doesn’t it?

A. No, because we were doing the speed limit."

In my view that evidence smacks of a priori reasoning. The witness wished to maintain that each was travelling at the speed limit and, when he realised that if he were 4 seconds behind the plaintiff he would be a lot further away from him than 20 to 30 metres, he would not accede to the proposition that the plaintiff was well ahead of him meaning that he was speeding vis-à-vis Mr Botic. The witness then said that when they took off from the lights at the intersection of the Old Princes Highway and the Highway, he was 5 to 10 metres behind the plaintiff. This question was then put by Mr Catsanos:

"Q. You would have remained in sync going forward? In other words, you would have remained about, I think you said, 20 metres behind him. Is that right?

A. Yes."

When pressed as to which was correct, his estimate of the seconds that he was behind the plaintiff or the distance he was behind the plaintiff, at p 73 line 1 the witness said in essence that his estimate of metres would have been more accurate than his estimate of time.

59. At p 71 Mr Botic said this:

"My motorcycle was a learner's motorcycle so it restricted, as you understand - I was a P-plater in this circumstance. As you know, R1, latest model. Every bike can accelerate to different speeds at different times. In my case, 10 seconds maybe zero to 70, approximately, give or take."

I know the plaintiff's motorcycle was a Yamaha 1000 R1. That appears to be the same cycle that Mr Botic was driving, if I correctly interpret his answer. However, what he was saying was that as he only had a learner's licence to ride a motorcycle he was in the same circumstances as the holder of a provisional licence and the speed at which he could travel was limited. His statement, however, that it would take him 10 seconds to go from a standstill to 70 kph I find somewhat difficult to accept for a high-powered motorcycle. Mr Rosier, called in the defendant's case, expressed the view that all the motorcycles in question were high-powered motorcycles.

60. When pressed about inconsistencies in his answers, the witness invoked the exigency of the hour when trying to explain differences between what he told the police and what evidence he was giving. For example, at p 72 the witness was asked this question and gave the ensuing answer:

"You've accepted you told the police you were only about 4 seconds behind Mr Matte?

A. That's what I said to the police on the night while I'm in shock, while my friend was pretty much dead on the ground."

Again, a little later on the same page the witness is recorded as attempting to answer one of Mr Catsanos' questions with these words:

"Mate, I'm going through shock, I just watched my mate…end up in a very serious accident."

I am afraid these appeals to exigencies do not indicate to me that the witness was being forthright.

61. The witness was also asked about the noise being generated by the motorcycle being driven by him and by the other cyclists in his group. He said that the group were only accelerating in essence in the normal fashion. He agreed that when a motorcycle is under acceleration it makes a noise like a car but that a motorcycle "also revs at least four times harder than a car." He eventually admitted that when one “revs up” a motorcycle "very hard" it makes a "screaming sound." He then went on to give this evidence:

"Q. Did you hear any of the motorcycles between the Old Princes Highway and Anzac Avenue in your group make a … noise indicating they're under heavy acceleration?

A. No.

Q. There was no loud screaming noise coming from any of those motorbikes from your recollection?

A. From recollection, no.

Q. I want to suggest to you that Mr Matte's motorcycle took off from the lights [at] the Old Princes Highway and accelerated hard and made a screaming sound as it accelerated up towards Anzac Avenue. Is that possible?

A. Mate, anything's possible in this world.

Q. You were there. Tell me, do you think it's possible on that night?

A. Well, he didn't do it."

It has been noted that that cross-examination concerned the noise being generated by a motorcycle or motorcycles between the Old Princes Highway and Anzac Avenue. In essence, the witness denied that there was any loud “revving” noise or any screaming noise. The defendant sought to adduce contrary evidence from Mr Rosier. However, I have formed the view that I can accept at least that part of Mr Botic's evidence. That is because Mr Collins did not hear any such noise and there was no evidence given by the defendant when she was interviewed by the police of any such loud noise.

62. Mr Botic maintained that the plaintiff was travelling in lane 3. He also said that the bike to his right was travelling in the same lane. At p 67 the witness said that motorcyclists are taught not to ride in the centre of a lane but to ride in grooves left in a lane by the tyres of motor vehicles. He maintained that one rider in lane 3 was travelling in the right-hand tyre groove and that the plaintiff was travelling in the left-hand tyre groove of lane 3. I am unable to accept that the plaintiff was travelling in lane 3. I accept that he was travelling in lane 2 again because of the evidence of Mr Collins but also because of the tyre mark and scrape marks recorded by police at the scene of the accident. Their position on the road is set out in the police survey which is exhibit 8 and the tyre mark put down by the plaintiff's vehicle commences on the right-hand side of lane 2 and ends on the left-hand side of lane 2 and the scrape marks are wholly within lane 2 and the plaintiff's motorcycle came to rest wholly within lane 2. The police photographs also show the same position of the tyre marks, scrape marks and motorcycle. Therefore, I cannot accept Mr Botic's assertion that the plaintiff was travelling in lane 3.

63. Mr Botic did not impress me favourably. I formed the view that he was being defensive. Whether that was because he perceived that someone thought him to be at fault, or whether he was trying to cover up something he would not admit to, I do not know. However, those are the possibilities. However, insofar as he is corroborated by Mr Collins, I can accept what he says. His reasoning process appears to me to be have been based on the proposition that, "We were all travelling at the speed limit", and he did not wish to resile from that position.

Witnesses not called

64. By letter dated 30 January 2018, the plaintiff's solicitors served upon the defendant's solicitors the statement made by Mr Botic to the police on 14 March 2015, the statement made by Mr Collins to the police on 14 March 2015, the statement made by Mr Collins to the plaintiff's solicitors on 2 September 2017, and also two other statements given to the police on the day of the accident. Although the letter does not indicate that the statements I am about to describe were given to the police, the date in the statements, 14 March 2015, clearly indicates to me that they were taken by the police as part of the police investigation into the collision. The statements in question were from Don Misevski and from Dani Isho. After reciting the statements served with the letter, the plaintiff's solicitors said this:

"Kindly note that these statements are served pursuant to s 67 of the Evidence Act 1995...with reliance on s 63 if the witnesses are not able to be called to give evidence at the trial."

By email transmission of the same day, the defendant's solicitor replied to this effect:

"I am a little unclear - are you advising me that these people are unavailable to attend to give evidence?"

That prompted this reply on the following day, again by way of email:

"The correspondence is simply to provide notice that if we are unable to serve the witnesses with a subpoena to attend to give evidence at the trial, we will rely on the statements."

Neither Mr Misevski nor Mr Isho were called by the plaintiff, nor was their absence explained, nor was there any attempt to tender their statements. That leaves the position to be this. The calling of those witnesses would not have advanced the plaintiff's case.

65. The plaintiff's case essentially was based on the fact that the defendant made her right-hand turn when it was unsafe to do so, when she ought to have seen - if she was keeping a proper lookout - that her vehicle would have collided with the motorcycle being ridden by the plaintiff. The plaintiff's case is not postulated on any proposition concerning the pace at which the plaintiff was riding his motorcycle, that is, on the plaintiff's speed. It is the defendant's case that is based on the issue of the plaintiff's speed, the defendant's case being essentially to prove the allegation of contributory negligence. Insofar as the plaintiff's case is based on "speed", the plaintiff relies on the estimates of speed given by Mr Collins and by Mr Botic. I am not persuaded that I can rely on the evidence of Mr Botic in that regard and, although I have pointed out that there might be reasons to doubt the accuracy of Mr Collins's evidence on the subject of speed, because of unconscious sympathy for the plaintiff, I am still left in the position that Mr Collins did not observe anything unusual which may have triggered his attention. His attention was not drawn to a vehicle that was obviously speeding or to a noise that might indicate obvious speed. In other words, as far as he was concerned, there was nothing unusual occurring immediately prior to the collision.

The defendant’s evidence

66. I turn now to the evidence adduced by the defendant. The first is clearly what the defendant herself said about the collision. I have cited the substantive first part of that statement earlier in these reasons. After telling me that she had a clear view of any oncoming traffic, the defendant said that she paused for approximately three seconds to establish that the path was clear to enable her to turn. She then said this:

"I did not notice if the traffic lights at the Old Highway intersection were red or green, however I did notice that it appeared 2 cars were at the lights and were just starting to move off from the traffic lights. I believed I had ample time to make my turn safely as the vehicles had only just started to move off. I proceeded to carefully make my turn.

I am unable to explain how the collision occurred, as I had not seen any motorbike near me at the time I commenced my turn. I am unable to say where he came from.

I looked before I turned and did not see him."

After reading her statement in the police interview, the defendant added this:

"And the only way I know it was a motorbike - I was hit in the side of the car and apparently spun, and when I focused up that way I could see two motorbike men that were walking towards him or running towards wherever the accident was. And then there were - was police and ambulance and everything like that there."

67. In answer to Q 68, the defendant said that as she was approaching the right-hand turn lane, she did not notice any vehicles turning right from that lane. In other words, there was nothing ahead of her in the right turning lane or the intersection itself which would have distracted her or in any way obscured her view. On the question of noise, the defendant said that she did not have air conditioning on in her vehicle and that she was not playing any music or radio in the car. She had no passengers, a point I made earlier. She was asked whether, when she was in the right turning lane, she looked to her left for oncoming traffic and she said that she did. She said that she saw a set of lights starting to come towards her, but from a “fair distance” away. There are two questions numbered 111. The questions and answers are these:

“Q. 111 Do you remember seeing any motorbike at the, at the traffic lights…

A. No.

Q. 111 …where you saw the two cars?

A. No, no motorbikes at all until I was spun around and looking the other way.”

68. At Q 173 the defendant admitted that she was in the middle of the intersection when her car was struck by the plaintiff’s motorcycle. She said that she had successfully crossed one lane of traffic, clearly lane 3, before being struck. At Q 192 the defendant said that she knew that she had plenty of time to cross the Highway in order enter Anzac Avenue. In answer to Q 229, the defendant said this:

“I definitely saw equivalent to two cars up there with, with lights. But as my son said that maybe they were two motorbikes together and not two cars.”

If she believed she had seen two cars at the traffic lights and they were in fact motorbikes, that would indicate that there were four motorbikes, not two motorbikes, but the defendant may merely have been saying that her son pointed out to her that what might seem to be the lights of a motorcar might be the lights of two motorcycles.

69. It is clear from the evidence of Mr Botic that the group in which he was travelling were the first to stop at the lights and, therefore, the first to leave the lights when the lights turned green. I do know that there were four motorcycles which might be the two cars that the witness thought she saw. However, the distance between the intersection of the Old Princes Highway and the Highway, the intersection governed by the traffic lights, and the T-intersection of Anzac Avenue and the Highway is 170 metres. Travelling at 70 kilometres per hour, one would cover 170 metres in eight and a half seconds. The exact time is 8.74 seconds. Travelling at a speed of 80 kilometres per hour, one would cover the distance in 7.65 seconds. Travelling at 90 kilometres per hour, one would travel 170 metres in 6.8 seconds and travelling at 100 kilometres per hour, one would take 6.12 seconds to travel that distance. However, neither a motorcar nor a motorcycle commences to travel at 70 kilometres per hour or 80 kilometres per hour or 90 kilometres per hour or 100 kilometres per hour. It takes time to reach such a speed. I do not know how long it takes to start off a motorcycle from zero to reach 70 kph, nor do I know the time it would take any motorcycle to achieve a speed of 80 or 90 or 100 kph from a zero start. I could speculate, but that is not my role. My role is to decide cases on the evidence presented.

70. I have already adverted to the proposition that Mr Botic told me that it took him ten seconds to reach a speed of 70 kilometres per hour on a Yamaha 1000 (R1), but I doubt the accuracy of that. However, clearly a number of seconds would be required in addition to the times I have already given. Even allowing a minimum time to reach say 70 kilometres per hour, the total time might be 9.5 seconds and, to reach 100 kilometres per hour and travel the distance of 170 metres, might take 7 seconds. In those circumstances the defendant ought have seen the vehicles travelling towards her and have had sufficient time to cross the carriageway. In other words, she either failed to see the vehicles or, if she did see the vehicles, she made an incorrect, erroneous or false estimate of the speed at which they were travelling.

71. As Mr Catsanos submitted and consistent with common human experience, the hardest thing is to estimate the speed of something approaching you at night when all you see is a light approaching. However, that merely invokes the need to act more cautiously when doing a dangerous manoeuvre, such as making a right-hand turn across lines of traffic. The defendant called no expert evidence. It sought to do so, but I ruled that expert evidence inadmissible. Perhaps my job would have been easier if the evidence had been admitted, but to do so, in my view, would have caused me to exercise my role otherwise than in accordance with my judicial obligations. A judge’s role does not include making life easier for himself.

72. Again, I reiterate that I can do some basic mathematics, but I do not know, for example, how long it would take any motorcycle to go from a speed of zero to a speed of either 70, 80, 90 or 100 kph. I, therefore, do not know how long it might take a motorcycle, setting off from the intersection of the Highway and the Old Princes Highway, to reach the intersection of the Highway and Anzac Avenue. The person who had, of course, to make that decision was the defendant. She saw lights coming towards her from the intersection at the Old Princes Highway but made an assessment which was incorrect, that she had sufficient time to make the right-hand turn with safety. She clearly did not see four motorcycles. She believed she saw two cars but she had 3 seconds to observe and could not in those 3 seconds work out that there may have been a number of motorcycles rather than two vehicles and that those motorcycles may have been travelling at a speed greater than she expected or anticipated.

73. She was required to ensure that she could make the right-hand turn safely. The obligation of a motorist is governed by the Road Rules 2014 r 72(5) which is in the following terms:

"If the driver is turning right, the driver must give way to:

(a) any vehicle approaching from the right, unless a stop sign, stop line, give way sign or give way line applies to the driver of the approaching vehicle; and

(b) any oncoming vehicle that is going straight ahead or turning left at the intersection, unless:

(i) a stop sign, stop line, give way sign or give way line applies to the driver of the oncoming vehicle; or

(ii) the oncoming vehicle is turning left using a slip lane; and

(c) any pedestrian at or near the intersection who is crossing the road the driver is entering."

Clearly, under r 72(5)(b) the defendant was required to give way to the plaintiff and neither of the exceptions in that paragraph was applicable.

74. In my view the plaintiff has made out the allegations of negligence pleaded in 6(a), (b), (c), (d). Paragraph (e) of the particulars is really just another allegation that the defendant was negligent. It is hard to see how in the circumstances the defendant herself could have taken evasive action other than by putting, to use the vernacular, "her foot down" on the accelerator pedal, leaving the lanes of the Princes Highway as quickly as she could mechanically do. The defendant had engaged her right-hand turning blinker. It appears to me that the allegation in (g) of the particulars of negligence is inappropriate and again, the allegation of failing to slow down or stop is inapposite. The allegation probably ought to have been failing to accelerate promptly in order to remove herself from the plaintiff's path.

Evidence of Mr AJ Rosier

75. The real issue in this case, in my view, concerns contributory negligence, a matter urged upon me by the defendant. In that regard that defendant called two witnesses who gave me, essentially, evidence about noise. The first witness was Mr Andrew John Rosier. Mr Rosier was 35 years old at the time. He is a builder by trade. He was a resident of Engadine. He had been a driver since the age of 18. As a driver he drives every working day to and from work. As a builder he is required to drive "all over Sydney." I accept that he is an experienced motorist. However, a number of things ought be noted.

76. Mr Rosier made a statement to the Police on 14 March, at the scene of the accident. It is exhibit 4 contained on p 90 of a police constable's notebook. It says this:

"I was walking down Princes Highway, Engadine. I saw the bikers riding like idiots, weaving in and out of cars, revving their engine at the lights. The bikes took off from the lights and later I heard a crash. The bikes were overtaking cars with ease as they were travelling fast."

77. He gave an electronically recorded interview to the police on 15 November 2015, eight months later. He believed that there were "at least six high powered motorcycles." Indeed, he thought that there were "six plus high powered motorcycles." Mr Botic puts the maximum at five but I can only be satisfied that there were four. Assuming that Mr Rosier is talking about the same group of motorcyclists, then his opinion contains hyperbole as to the number of motorcyclists. Mr Rosier said this in answer to Q 9 asked of him when he gave the record of interview:

"I was out walking with my partner [and] with my dog…Saw a group of, would have been up to six, probably six plus bikes. I was outside the McDonald's or thereabouts at Station Street and Princes Highway and witnessed the bikes cutting and weaving in and out of traffic up to the lights at Old Princes Highway and the Princes Highway there, at the KFC[.] And…then from that, we turned up Station Street so I wasn't actually a witness to the incident[.] And yeah, not long after, as we were walking through Engadine, you could hear the sirens and everything coming, coming on and once we got back, back to the house here, I thought I'd just go up and see what had happened and offered my report to the officers on the scene."

The next question was: "Okay," and Mr Rosier then said: "That’s about it really."

78. When telling the police about the bikes being "high-powered bikes" he said that he was not himself a motorcycle rider. He was asked what made him first notice the motorcycles and he responded thus:

"The noise. The noise of them coming in and they were in, they were in quite high gear to be able to push through, you know, cut and weave in traffic. You know, they weren't cruising. They were, they were moving."

A little later, this was stated by the witness in answer to another question which was merely, "OK".

"So, it just, you just see these blokes like that, you know, I've seen them 100 times and they ride like idiots, you know. So that's, that's all."

79. I quoted earlier from the record of interview to put the last point in context. However, it is clear from what was recorded by the police on 14 March, and what Mr Rosier said when interviewed by the police on 15 November 2015, that he had certain a priori views about motorcyclists and made generalisations concerning them. He believed that motorcycle riders were "idiots" and he'd seen idiotic behaviour on their behalf on at least a hundred occasions earlier. That to me indicates that the witness had a certain view about motorcyclists which was not an unbiased one, and that any behaviour of a motorcyclist to which to which he objected, would lead to his making generalised comments concerning that cyclist or, perhaps, any group of cyclists in which one particular cyclist was misbehaving.

80. In evidence, Mr Rosier told me of the route he took from his home in order to reach the Princes Highway, which he reached by going through the Cooper Street Reserve, which is shown on the street directory which is exhibit C. He then walked north along the Princes Highway, the section of the Princes Highway that replaces the Old Princes Highway, that has the alternative name of "Railway Parade". The Engadine Railway Station is on the Princes Highway/Railway Parade and unsurprisingly, Station Street makes a T intersection with Railway Parade/Princes Highway on the western side of Railway Parade/Princes Highway, at the northern end of the railway station. There is, in fact, an underpass from the northern end of the Engadine railway station to the southern side of Station Street.

81. Mr Rosier first noticed a group of motorcyclists when he was approximately 13 metres south of Station Street. His attention was drawn to the cyclists by the noise being emitted by their motorcycles. He looked behind him, southwards, and thought that the bikes were between 50 and 100 metres to the south. He told me that the motorcyclists were driving at a high revolution rate, cutting and weaving through traffic. He thought that they were going much faster than the rest of the traffic which he described as travelling at "average speed". He described the speed of the motorcyclists as being "a rapid speed". When the witness reached Station Street, he and his then partner, now his wife, and their cross Staffordshire terrier dog turned left into Station Street to head in the direction of the Old Princes Highway. In other words, Mr Rosier had only had the motorcyclists in question under his observation from when they were between 50 and 100 metres south of him to wherever they had reached in the time it took him and his wife and dog, walking – he told me – at a normal pace to travel 30 metres before turning into Station Street.

82. It is clear that he did not see the group of cyclists stop at the Old Princes Highway. That is because by the time that the cyclists could have reached that intersection, he was in Station Street and his view would have been obscured by buildings. He makes his "observations" from when he turned into Station Street based purely on his perception of noises and what they meant to him. He is not an acoustics expert. His last view of the motorcyclists appears to have been as they were reducing speed as they approached the traffic lights at the Old Princes Highway intersection. The distance from Station Street to the intersection of the Old Princes Highway and the Princes Highway was stated by Mr Catsanos to be 350 metres. It is clearly a much lengthier portion of the Princes Highway than the 170 metres between the intersection of the Old Princes Highway and the Highway, and the intersection of the Highway and Anzac Avenue. The Highway descends from north of the Station Street intersection and then ascends to the crest, where is the intersection with the Old Highway. One can see the ascending incline in photograph A1, which is taken shortly before one reaches the boundary of the KFC property on the corner of the Highway and the Old Princes Highway.

83. The witness went on to say that his estimate was that these motorcyclists were progressing at 100 kph in the 70 kph zone between the junctions of the Princes Highway at Station Street and at the Old Princes Highway. He gave this evidence:

"Q. Were you able to form an opinion or a view as to what speed these bikes were travelling at?

A. Yeah.

Q. What was that?

A. I would estimate up to 100 kilometres an hour through that zone.

Q. In your experience, was that unusual?

A. Well, in my driving experience, I know when, I can tell when someone is obviously speeding. The manner they were riding was, yeah."

In other words, the witness appears to have factored into his assessment of the speed the manner in which the motorcyclists were riding, and theoretically that is not necessary at all. One can weave between lines of traffic without speeding. Again, his view as to speed appears to me to have been infected by some a priori view that he has about the behaviour of motorcyclists. The witness then went on to admit that he believed that the traffic lights at the Old Princes Highway had turned red, because "they were downshifting towards the lights", meaning, I assume, that they were reducing speed.

84. Thereafter he had no actual sight of what occurred because he had turned into Station Street. He then said that, “I could hear all the bikes had obviously filtered, in my opinion, had filtered to the front of the queue.” That is pure speculation and not based on anything he observed, not anything that he could perceive by sight. It is an a priori view based on his perception of how motorcyclists behave. Nevertheless, it has to be conceded that, on the evidence of Mr Botic, this group of cyclists were the first to set off from the traffic lights, but that was because they were the first to stop at the traffic lights.

85. The witness then said that he heard the “revving of engines”. He went on to say that it “sounded like they were all revving individually, and obviously they, all the bikes started revving up quite loudly”. I observe, rhetorically, how could he possibly hear the sound of six or six plus bikes revving up individually when there may only have been four bikes. In any event, no matter how many bikes there were, I find it impossible to know how anyone could discern that each bike was being revved up individually from some level of noise, but perhaps the witness is referring to some cacophony of noise, which he was unable to articulate.

86. The witness then said that he heard a loud sound of acceleration and then he heard an impact which, when I pointed out to him was a conclusion, he admitted that he heard a “thud”. He then went on to tell me that he then heard a “bike hitting its rev limiter”, but I have no idea what he meant by that, nor was any attempt made to explain what he meant by that. Perhaps some motorcycle aficionado might know it, but I certainly do not. However, the thud that he heard was, I am asked to accept, the sound of the collision between the plaintiff’s motorcycle and the defendant’s motorcar.

87. It has to be pointed that when he was in the middle of Station Street, perhaps at the intersection of Station Street and Caldarra Avenue. He would have been at a distance of more than 350 metres from the intersection of the Old Princes Highway and at the time of the collision between the two vehicles with which I am concerned he would be more than 520 metres or half a kilometre from the accident site. It may be that Mr Rosier has very accurate hearing, but he did not give me any evidence to that effect.

88. Mr McIlwaine adduced from the witness that he did not know how long it was between his last seeing the motorcycles approaching the traffic lights at the Old Princes Highway and the hearing of the noise, which he believed was the collision. He then gave this evidence:

“Q. … So you wouldn’t know if the cycles you saw, the six or more cycles that were approaching the set of lights had not moved off past Anzac Avenue, and that the cycle that was involved in the accident was in another group of cycles following some distance behind the group you saw? You just wouldn’t know that, would you?

A. No.”

89. In re-examination Mr Catsanos adduced from the witness that the time between when he “saw the cycles” and heard “the thud” might have been. The question itself was unclear because it is open to be interpreted as meaning from when he first saw the motorcycles or from when at any time that saw the motorcycles, was it to the time that he heard the thud. He then estimated that it would have “been under a minute”, which in my view was fanciful and such was essentially conceded, although that term was not conceded by learned counsel for the defendant, Mr Catsanos. The idea that it would have taken this group of cyclists less than a minute to travel from Station Street to Anzac Avenue, a distance of 520 metres, whilst stopping and obeying traffic control lights at the intersection of the Highway and the Old Princes Highway, or perhaps even a longer journey, from 50 to 100 metres south or 30 metres south of Station Street, is in my view fanciful, indicating again a hyperbole directed to the detriment of motorcyclists as a group.

90. The other problem with Mr Rosier’s evidence, of course, is that he is putting each of what he believed to be six or more motorcyclists, but which were probably only four, in the same category, when it was possible that it was only one or two of them who were “misbehaving” or was possible that all were misbehaving, but one and that could be the plaintiff.

91. No inference, in my view, can be drawn adverse to the plaintiff from the evidence of Mr Rosier. As I said, it smacks of bias and some of what he said raises questions of plausibility. The noise of the bikes travelling along the Highway was such that he would have me believe he could hear nearly a half a kilometre away, when the noise was not heard by the defendant herself or by Mr Collins. I can place no reliance on his evidence.

Evidence of Ms Barrionuevo

92. The other witness called by the defendant was Ms Adriana Bibiana Barrionuevo. Ms Barrionuevo gave her date of birth in chief. Suffice it to say that the gentlemanly thing is for me to observe that she was a mature lady. By occupation she is a school administration manager. She and her husband had driven from their home in Kirrawee to the KFC outlet at Engadine, in order to purchase a takeaway meal. They drove along the takeaway lane. The positioning of the KFC outlet at Engadine is clearly shown in exhibit 13, a Google aerial photograph centred on that outlet. To enter it approaching from Kirrawee, one must turn right from the Princes Highway onto the Old Princes Highway and then proceed a distance before entering the outlet through a driveway that is set back some little distance from the actual intersection. One then drives eastward across the face of the outlet then southwards down its eastern side and around the building in a clockwise direction.

93. She told me that she saw some motorcycles travelling north. They were slowing down and stopping. She believed the motorcyclists were talking among themselves. She, like Mr Botic, said that they were the first traffic stopped at the stop line at the traffic lights. She thought that there were "three in the front and three in the back" when, on the evidence of Mr Botic, there were three at the front and two at the back. It is likely that there were only two at the front and two at the back but, clearly, she would dispute the estimate of Mr Rosier that there were six plus motorcycles involved.

94. She heard the motorcyclists revving their engines before the lights turned green. She said that they revved their engines "loud enough for me to turn and take notice." She had her window wound down. It is clear from where she says she was in the car park of the KFC in the queue waiting to order takeaway that she would not have been particularly far from the stop line at which the motorcycles were stopped. She then told me that the motorcyclists took off and that they "went quite fast compared to the other traffic." That is a common experience for motorists. The only things that might take off more quickly than a motorcycle stopped at an intersection is perhaps a sports car or convertible, perhaps the sort of vehicle being driven by Mr Collins.

95. She then said she heard "big loud noises like they're speeding up," and then she heard "a big crash like metal." She said that there was "a little while" between what I assume she meant by "they're taking off from the traffic lights" and a "big crash like metal." When asked to explain what she meant by "a little while" she said "50 seconds" but she was not sure of that time. When asked to describe the loud noise she paused, took time, concentrated by closing her eyes and then she said she heard "like a screech and then a bang." A screech may indicate the application of brakes and the bang may indicate the collision.

96. Again, after there was a dispute between the parties as to the admissibility of a post that the witness made on Facebook later on the evening of the crash, the witness said that when the bikes were at the lights she heard revving and she said that when they took off they were "going really fast." It is clear from cross-examination that the witness saw and heard the cyclists rev their engines before taking off at the traffic lights but at the same time she and her husband were moving forward, that is, southwards in the queue, to order a takeaway meal. When the motorcycles left the traffic lights heading north, they were lost to Ms Barrionuevo's sight. She agreed also that she was unable to see them "very far beyond the intersection," and clearly that is because of the intersection’s being on the crest of a hill. She was unable to place any estimate on speed; all she knew was that she could hear them. She agreed that she was only making a rough estimate of time, but 50 seconds, of course, is a time that probably the plaintiff would happily grasp between the turning of the lights to green and the collision between the plaintiff's motorcycle and the defendant's motor car.

Consideration

97. The defendant did not call either Mr Dani Isho or Mr Don Misevski, and made no attempt to prove that she had been unable to find Mr Benny Geti or even identify his correct name by its correct spelling. It is from the evidence of noise that the defendant asks me to infer that the plaintiff must have been speeding at the time of the collision. The defendant also asks me to draw inferences from my own observations of photographs and asks me to draw inferences from the damage sustained by both the bike and the defendant's motorcar.

98. Even if I were to accept the evidence of Mr Rosier and that the motorcycles which he observed were those being driven by the plaintiff and his group, that they were all cutting and weaving through traffic and doing 100 kph in a 70 kph zone, it does not follow that having stopped and obeyed the traffic control lights, and then taking off from those lights, they behaved in a similar fashion in the stretch of the Princes Highway north of the Old Princes Highway intersection. They could not cut and weave between traffic because they were ahead of the rest of the traffic travelling north that had stopped at the traffic control lights. If there be traffic and one want to get ahead of it, one might need to speed up, to weave between cars and trucks, but if there be nothing ahead of one, one does not necessarily need to speed up, unless one wants to run the risk of incurring a speeding fine. There is open road before one, and one is not impeded. In my view, nothing can be inferred from the fact that motorcyclists, anticipating that the lights were about to turn from red to green, probably by looking at the orange lights facing in the opposite direction, “rev” up their engines so that they can take off speedily and avoid traffic behind them. That is a fairly common experience for motorists. That does not mean that they were driving at an excessive speed subsequently.

99. I do note that the plaintiff saw the defendant’s turning across his path and sought to avoid colliding with her. There were marks on the carriageway left by the plaintiff's motorcycle. They are described in [10] of the statement of Senior Constable Bromage, in which she said this:

"10.2. After inspecting the roadway of Princes Highway, I identified a number of gouges and scrape marks, splatter of fluid, a single tyre skid mark, and scattered debris.

10.3. The skid mark was located on the roadway leading up to the resting position of the Yamaha. A skid mark is caused by a tyre that is locked and sliding and most commonly under harsh braking. The skid mark caused by the rear wheel lock up of the Yamaha was a proximally 20.65 metres in length.

10.4. Following on from the tyre mark there were a number of scrapes and gouge marks. These marks travel in a parallel direction to the tyre mark, until a point where there is a directional change and heads in a general north east direction. The directional changes strongly indicate the area of impact between the Yamaha and the Nissan. It also gives a strong indication that the Yamaha had been laid over prior to the impact."

I am grateful to the Senior Constable for giving me the approximate length of the skid mark. Doing the best I could with a ruler and the survey which, in the form it was tendered, was only A4 paper size, I estimated the length of the tyre mark as being 22 metres. The senior constable gives me a more accurate length. I perceived a gap between the last tyre mark and the first scrape mark which I believe to be 1.4 metres. On my calculation, the length of the scrape marks was 7.02 metres, indicating that the marks left by the plaintiff’s motorcycle on the carriageway indicated some 30 metres of known reaction by the plaintiff prior to the accident.

100. The skid mark, as I have earlier mentioned, goes from the right-hand side of lane 2 to the left-hand side of lane 2 and may indicate an intent to steer or swerve to the left but, as has been submitted by Mr Catsanos, may represent the fact that, because of severe braking, the braking vehicle took its own course independent of the rider. The statement of Senior Constable Bromage also points out that the tyre of the rear wheel of the plaintiff’s motorcycle showed scuffing consistent with the wheel being locked up, as later stated by her in her statement, to indicate heavy braking.

101. It is very common for evidence to be given in cases of this nature that there is a perception/reaction time between what a motorist observes and the action that he or she might take in order to react to perceived danger or emergency. That perception/reaction time can anywhere between one second and two seconds, depending upon the age and experience of the motorist or rider. Mr Catsanos points out that, if the plaintiff were travelling at 70 kph, he would travel 19.45 metres per second. So, if there was one second of perception/reaction time, the plaintiff would have travelled 20 metres before applying his brakes and there then are 30 metres travelled before the point of maximum impact between the plaintiff’s motorcycle and the defendant’s motorcar. In other words, 50 metres may have been travelled, assuming that the plaintiff was riding at 70 kph.

102. Mr Catsanos points out that, by use of the ruler and measuring distances shown on the survey, exhibit 8, one can ascertain that 50 metres back, that is, south of the intersection of the Highway and Anzac Avenue, one can find in exhibit V8 a black sedan car approximately 50 metres back from the intersection and that is north of the most southerly “pole and light”, identified in exhibit 8, and that black sedan is in lane 1, the compulsory left-hand turning lane. An equivalent position of a vehicle in exhibit A is a vehicle shown in lane 2 of the northbound lanes in photograph A5. I am asked by Mr Catsanos to infer that a motorist or cyclist travelling at the speed limit, in the same poisiton of the car in A5, would not pose any danger to a car turning right out of the turning lane of the Princes Highway into Anzac Avenue. There is a vehicle in the right turning lane waiting to make such a turn that can be identified in photograph A5, but it cannot make that turn because there is a car in lane 1 about to make a left hand turn into Anzac Avenue. However, assuming that that car was not there, it has been submitted by Mr Catsanos that the vehicle in the right-hand turning lane could make a right-hand turn safely into Anzac Avenue without offering any danger to a motorist in the position of the car in northbound lane 2, which was travelling at the speed limit.

103. That is an attractive submission, but requires me to replace witnesses and experts with my own experience of driving my own motor vehicle. Furthermore, the onus lies the other way. The onus is on the person making the right-hand turn to be satisfied that he or she can do so safely without jeopardising the safety of the motorist who is in lane 2. It is in my view impermissible for me as a judge to use my own experience as a motorist to make the finding that Mr Catsanos asks me to make. Furthermore, it would be impermissible to do so because I do not drive motorcycles and never have and I do not know any of the characteristics of the motorcycle which the plaintiff was riding. I understand that certain vehicles can be braked by using a rear-wheel brake, that some can be braked by using a front-wheel brake, that some can be braked by using both such brakes, but which brake was applied by the plaintiff I do not know and I do not know the configuration of brakes on the plaintiff's motorcycle.

104. It is clear from the finding made by Senior Constable Bromage that a brake was applied to the rear wheel of the motorcycle because the scuffing indicates that the tyre locked and therefore made the track that it did. I cannot put myself in the position of a motorcyclist in the position shown by the car in northbound lane 2 of exhibit A5 and making a finding that had the plaintiff been travelling at 70 kph he would not have collided with the defendant's vehicle because I have no experience of driving motorcycles and there is no evidence before me of what a prudent cyclist in the plaintiff's position would have done.

105. I know that the plaintiff perceived the defendant's turning vehicle at least 30 and probably at least 50 metres ahead of him when presumably she had started making the turn in front of him. I know from the position of the other cyclist in lane 3 deposed to by both Mr Collins and Mr Botic that the plaintiff could hardly have veered to the right to try to pass behind the defendant's vehicle as the right-hand motorcyclist actually did. There may have been an attempt by the plaintiff to veer left in order to avoid the collision but, if so, he did not succeed in doing that.

106. The other matter that the defendant asks me to take into account is the extent of the damage suffered by the vehicles. Again, I know nothing about how damage is caused to motorcycles and to motor cars. I do know that some motor cars are heavily constructed and are sometimes referred to as tank-like vehicles while other vehicles are very lightly constructed and can sometimes be referred to as aluminium cans. I know nothing of the strength of the construction of the defendant's 2003 Nissan Pulsar motor car. There was extensive damage to its near side. The damage is described in the statement of Senior Constable Bromage. In that statement she said this:

"8.2 The Pulsar sustained major contact damage to the passenger side extending from the A-pillar through to the C-pillar, with the majority of the intrusion sustained at the bottom of the front and rear passenger doors around the area of the floor pan. The Pulsar also sustained minor contact damage concentrated to the centre of the rear of the vehicle, which was caused after it has impacted[sic] a pole at [its] final resting place."

Again, the panel damage shown in photograph figure 3 of the Senior Constable's statement looks awfully severe, but again, I do not know whether a Nissan Pulsar is lightly constructed or heavily constructed. I do not know whether it had the resilience of an aluminium can or a Sherman tank. I do not know what damage was caused by the plaintiff's motorcycle and what damage was caused by the plaintiff himself striking the vehicle. The Senior Constable also described the damage done to the motorcycle:

"9.2 The Yamaha sustained significant contact damage to the front end. There was a large amount of induced damaged to the motorcycle as a whole, with missing and cracked panels. The front [forks] of the motorcycle were pushed back into the body, which is consistent with significant frontal impact."

107. According to the COPS report, the plaintiff's motorcycle was a total loss. According to the same document, the defendant's vehicle was "tow away" but considering its age and the extent of the panel damage, it would probably have been uneconomical to repair it. However, I am not an expert in mechanics. I have no expertise in assessing the extent of damage to motor vehicles, including motorcycles, and I do not know, as a tribunal of fact, acting judicially, what the damage indicates – whether it indicates that the plaintiff's vehicle struck the defendant's car when it was going at 5 kph, 10 kph, 20 kph, 30 kph, etc. I just do not know. It is for the parties to adduce such evidence on this issue, that is, contributory negligence. The defendant has the onus of proof. It is the defendant that must persuade me on the balance of probabilities that the plaintiff has been guilty of contributory negligence. It is on the defendant to prove to me, on the balance of probabilities, that the plaintiff was exceeding the speed limit to the extent that he was not taking adequate care for his own safety. That onus has not been discharged.

107. I am asked to infer things that I believe is impermissible for me to infer without the aid of expert evidence. Furthermore, to do that would require me to, in essence, reject outright the evidence of Mr Collins, which I do not do and am unable to do.

AT 4.43 PM - DISCUSSION AS TO SCHEDULING

HIS HONOUR: The formal order is stood over part heard to next Monday.

ADJOURNED TO MONDAY 28 MAY 2018

109. HIS HONOUR: In the reasons I gave on Friday 25 May 2018 I pointed out a submission put to me by the defendant that I should place myself as a motorist in the position of the sedan motorcar in photograph A5, which was approximately 50 metres north of the intersection of the Princes Highway and Anzac Avenue, and if I put myself in that position as a motorist I could observe that there was more than adequate time for a car turning right into Anzac Avenue to make that turn safely. I pointed out that that was an attractive argument, but I have no knowledge of a motorcycle, only as a motorist, and in any event, it is impermissible for a judge to use his or her personal experience as evidence.

110. I must point out that I would not have expected Mr Catsanos to put that argument before me if the plaintiff were driving a motor coach full of passengers and their luggage, or driving a petrol tanker full of fuel, or driving a pantechnicon loaded to the gunnels with a householder's moveables, or driving a prime mover towing two trailers, each of which was laden with a full shipping container. I am not so naïve as to not appreciate that momentum is the combined effect of an object of weight proceeding at speed, that is, a heavier object at, say, 60 kilometres per hour would be harder to stop than a lighter vehicle travelling at the same speed. That is the theory, but to answer the various questions posed by the examples I have just given points to the need to adduce evidence of the braking system on the vehicle in question, how it operates, what distance it could be expected to travel, whilst reducing speed from, say, 60 kph to zero. Just as I know nothing of the braking systems of buses, fuel tankers, pantechnicons, and trucks, I know nothing of the braking systems of motorcycles. All the more reason, therefore, to adduce expert evidence, which unfortunately did not occur in the current case.

111. The other issue that arose from the defendant's argument is adverted to in pars 50 and 51 of the defendant's written submissions, MFI 5. Those paragraphs are these:

"50. Section 5R of the Civil Liability Act provides the standard of care required for the person who suffered harm is that of a reasonable person in the position of that person and is to be determined on the basis of what that person knew, or ought to have known at the time.

51. That statutory provision is an adjunct to the common law (see s 138 Motor Accidents Compensation Act 1999) as reflected in authorities such as Joslyn v Berryman [2003] HCA 34; 214 CLR 552, and Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492. In Podrebersek the High Court said at 532 533:

'The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie, of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage (Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas St Rp 11; [1958] Tas SR 36 at 42 49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219 and cases there cited.) It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.'"

112. I pointed out to Mr Catsanos, arguendo, at that point that it is the contribution of the conduct of each of the relevant parties to the damage that has to be considered. Mr Catsanos then referred me to the decision of the Court of Appeal in T and X Company Pty Ltd v Chivas [2014] NSWCA 235. The defendant in those proceedings was a taxi owner who was responsible for the actions of a taxi driver. The taxi driver was driving in a westerly direction down Market Street, Sydney. He had a green light permitting him to cross over George Street. As he approached the intersection two young men ran across Market Street, ignoring a red pedestrian light. They passed in front of the taxi. He did not slow down. As he crossed George Street a third young man, Scott Chivas, ran onto Market Street and was fatally injured when hit by the taxi. Bozic DCJ found for the plaintiff and apportioned 40% of liability to the deceased pedestrian. The majority, Basten JA, with whom Barrett JA agreed, increased the level of the deceased pedestrian’s liability to 75%. At [46] Basten JA said this:

"Apportionment of responsibility in negligence is not a common law concept, but a product of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ('the 1965 Act'), s 9 of which relevantly provides:

'9. APPORTIONMENT OF LIABILITY IN CASES OF CONTRIBUTORY NEGLIGENCE

(1) If a person (the claimant) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person:

…

(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.'"

The speed limit which was being observed by the taxi driver was 50 kph. The trial judge concluded that reasonable care required the taxi driver to travel at 40 kph rather than the speed at which he was actually driving. At [33] Basten JA pointed out this:

"The challenge to causation was based on the proposition that even if the taxi had been travelling at 35 kph or even 30 kph on seeing the two young men crossing the road, the outcome would have been no different in that the collision would still have occurred. There was no evidence that the injuries would have been less severe at a lower speed: the case was run on the basis of collision or no collision."

113. The present case was not run on the basis that there was either a collision or not. It was run on the basis that the plaintiff was travelling at too great a speed and thereby he increased the extent of his damage. The evidentiary problem is that there is nothing given in the evidence which would enable me to make some assessment of the extent of the plaintiff's contributory negligence if he were guilty of contributory negligence. The defendant has not adduced evidence to suggest that if the plaintiff were only travelling at 70 kph he would have avoided the collision because the plaintiff's car would have passed wholly across the northbound lanes of the Princes Highway or whether the collision would only have occurred with much less force because the plaintiff's speed at the time of collision was only 5 kph or 10 kph or 15 kph.

114. However, that points to the problem that I do not know, at the time the plaintiff's motorcycle collided with the defendant's car, the speed at which the plaintiff's cycle was travelling. I do not know whether the damage sustained by the plaintiff represents his colliding with the car when he was travelling at 10 kph or 100 kph, whether he was travelling at 20 kph or 90 kph. There is just no evidence which tells me either way and would enable me to ascertain the extent to which the alleged contributory negligence of the plaintiff might have contributed to his injuries. Even if the defendant had proved the other matter that she needed to prove, that is, contributory negligence, the defendant has not established the extent to which the plaintiff's alleged contributory negligence contributed to the extent of his injuries.

115. The final matter about which I should have made an earlier ruling is this: the report of Mr Christopher Hall of 14 August 2017 was admitted conditionally as exhibit 1. When I ultimately rejected the tender, I should have revoked the marking of that report as exhibit 1. I now formally do that, and I mark the document exhibit VD2.

EXHIBIT #VD2 REPORT OF CHRISTOPHER HALL DATED 14/08/17, ADMITTED (PREVIOUSLY EXHIBIT #1)

116. I have asked senior counsel for the plaintiff and the solicitor for the defendant if any further reasons for judgment are required and I am told that no further reason for judgment is required.

(SUBMISSIONS RE FORM OF ORDERS AND COSTS

117. HIS HONOUR: I make the following orders:

1. Verdict and judgment for the plaintiff against the defendant for $2,150,000;

2. Order judgment debtor to pay the judgment debt to the New South Wales Trustee and Guardian for administration of the judgment debt by the New South Wales Trustee and Guardian for the benefit of the plaintiff;

3. Noted the judgment debt includes $400,000 for funds administration;

4. Noted the judgment allows $527,000 for damages for non-economic loss;

5. Subject to order 6, order the defendant to pay the plaintiff's costs;

6. Plaintiff's costs concerning liability to be paid on the indemnity basis from 18 May 2018.

118. BRUCE: Apologies, your Honour. My client has instructions to apply for a stay of your Honour's judgment to allow counsel the opportunity to review the judgment once it is made available and consider its prospects of an appeal.

HIS HONOUR: If he wanted to review the judgment he could have sat here and listened to it. What do you say about a stay?

MCILWAINE: As the money is going to Public--

HIS HONOUR: Public Trustee and Guardian, there's no chance of it being lost, you see.

MCILWAINE: No. Those of us who have been around for a while but because the money is going to the Trustee and Guardian, the whole idea of a stay and a part payment was if you have normal parties, if I can put it that way.

HIS HONOUR: Yes, the--

MCILWAINE: Funds won't be lost.

HIS HONOUR: The funds can't be lost. It's only if there's an urgent application.

MCILWAINE: So, there's no need for a stay, because if they want to do something they've got 28 days to do it anyway.

HIS HONOUR: Yes.

MCILWAINE: But in the meantime, moneys should be paid in the ordinary way.

HIS HONOUR: Yes. The only thing the defendant need do, Mr Bruce, I think, is to write to the Public Trustee when you forward the money to them and say, "Would you please let us know of any intention that you have to make any disbursement greater than $500," or something like that. I don't think the plaintiff is going to his car has already been modified, so he won't be asking them to buy him a Maserati straight away.

BRUCE: Perhaps. My client has provided instructions that they would be agreeable to $875,000 being made available to the Trustee and Guardian as a condition of the stay.

HIS HONOUR: The practical point is the Public Trustee and Guardian isn't going to pay out $850,000 in one go, so the whole sum might as well go to the Public Trustee and Guardian and they can give it back, if the appeal is successful in whole or in part. It may well be that there could be an order for a retrial, but in that case -- well, the parties can reach agreement about it, or the Court of Appeal might give a direction, I don't know. Court will adjourn.

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Amendments

29 August 2018 - Changed category of judgment.

Decision last updated: 29 August 2018