PJS v Shire of Koorda - [2013] WADC 162

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PJS -v- SHIRE OF KOORDA [2013] WADC 162

CORAM: MCCANN DCJ

HEARD: 6-9 & 13-16 MAY 2013
(and subsequent written submissions)

DELIVERED : 25 OCTOBER 2013

FILE NO/S: CIV 2002 of 2008

BETWEEN: PJS
Plaintiff
AND
SHIRE OF KOORDA
Defendant

Catchwords:

Negligence - Personal injuries - Motorcycle accident - Liability of rural road authority for the slippery condition of a sealed road - Turns on own facts

Contributory negligence - Speed - Advisory signage Failure to keep a proper look-out - Turns on own facts

Legislation:

Civil Liability Act 2002 s 5B, s 5C, s 5K, s 5Z
Evidence Act 1906 s 79C, s 79D

Result:

Judgment for the plaintiff
Contributory negligence determined at 33 1/3%
Damages awarded in the sum of $306,079.18

Representation:

Counsel:

Plaintiff: Dr A S Morrison QC and Mr C Cooper
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Bradford & Co
Defendant: DLA Piper Australia

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Astley v Austrust Limited (1991) 197 CLR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Browning v Bitupave Ltd t/as Boral Ashphalt [2008] NSWSC 19
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jones v Dunkel (1959) 101 CLR 298
Manley v Alexander (2005) 223 ALR 228
Medlin v State Government Insurance Office (1995) 182 CLR 1
Pettigrew v Wentworth Shire Council [2012] NSWSC 624
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529
Town of Port Hedland v Hodder [2012] WASCA 212; 43 WAR 385

MCCANN DCJ:

Introduction

The plaintiff is a soldier in the Australian Army. He holds the rank of corporal in the Special Air Services (SAS) regiment.
The defendant is a Western Australian wheatbelt shire constituted under the Local Government Act 1995.
The plaintiff claims damages for severe personal injuries which he suffered on the afternoon of Saturday 6 October 2007 when he lost control of his motorcycle whilst travelling eastwards through a left‑hand bend on the Cadoux ‑ Koorda Road, skidded over an embankment into a ditch and crashed into a boundary fence (the accident). The plaintiff was with six other motorcyclists at the time.
I shall use the phrase 'the bend' to mean the entirety of the bend and the phrase 'the accident site' for the section where the accident occurred. All dates are in 2007 unless I signify otherwise.
The defendant was statutorily responsible for controlling and managing the Cadoux‑Koorda Road. It admits that its employees carried out maintenance of the gravel shoulders of the bend on 27 August.
The plaintiff alleges that the accident occurred because his motorcycle lost traction in loose gravel on the sealed surface of the bend. He further alleges that this gravel emanated from the shoulder maintenance work on 27 August.
The defendant denies that there was any loose gravel on the sealed surface at the accident site. Alternatively, it contends that it did not cause the build‑up of any gravel and had no knowledge of it.
The defendant further contends that the accident was caused or contributed to by the plaintiff's own negligence in that he:
(i)Rode his motorcycle at excessive speed.
(ii)Failed to keep a proper lookout.
(iii)Failed to slow down sufficiently on his approach to the bend.
(iv)Failed to heed an advisory sign at the entrance to the bend which recommended a speed of 80 km per hour.
(v)Failed to 'turn his motorcycle sufficiently early in order to enable himself to negotiate' the bend. I assume that this plea contends that the plaintiff over‑shot the straight section of road leading into the bend.
The plaintiff denies these allegations. Amongst other things, he denies the existence of the speed advisory sign.
The ultimate issues in respect of liability are:
(1)What was the topography and layout of the bend and its environs (including advisory signage)?
(2)Was there any loose gravel on the sealed surface at the accident site?
(3)If so, did the loose gravel cause the plaintiff to lose control of his motorcycle?
(4)If so, did the defendant cause the gravel to be on the road and, if so, was it negligent in so doing?
(5)Was the accident caused or contributed to by the manner of the plaintiff's own riding and, if so, was he negligent?
I am required to make findings on these issues on the balance of probabilities based on a body of direct and circumstantial evidence.
In a circumstantial case a fact is taken to be proven if the court is satisfied (ie, can infer) based on the whole of the evidence that it is more probable than not that the fact happened (Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536, Gibbs CJ and Mason J). By 'more probable is meant no more than that upon a balance of probabilities … an inference might reasonably be considered to have some greater degree of likelihood' than others that are open. (Jones v Dunkel (1959) 101 CLR 298, 310 Menzies J).
But, this is not an arithmetical exercise. I am required to be actually persuaded as to the probability of a fact being true (Briginshaw v Briginshaw (1938) 60 CLR 336). Nor should I confuse mere conjecture with reasoned conclusion (Jones v Dunkel, 305, Dixon CJ, 309 – 310, Menzies J).
'Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves' (Jones v Dunkel, 309, Menzies J).

The witnesses in respect of liability

The plaintiff gave evidence and called three other men who were with him, namely Ian Bull (a police sergeant at the time), Andrew Toop (a police sergeant then and now) and John Martin (a farmer from Toodyay).
He also called an expert witness, Robert Davey, who is a traffic accident reconstruction specialist. Mr Davey carried out a site inspection on 26 October 2011 and provided reports dated 9 January 2012 and 29 April 2013 (exhibits 6.34 ‑ 6.53).
The defendant adduced evidence from a number of current and former employees, namely Graeme McDonald (the then chief executive officer – now retired), Darren West (works supervisor) and the members of the shoulder maintenance crew, namely Richard Cooper, Graeme Surtees and Michael Wilson.
The defendant also called witnesses who arrived at the accident site after the accident, namely the investigating police officer (Sergeant David Loverock) and seven locals who were travelling in a four vehicle convoy west along the Cadoux‑Koorda Road, namely Peter Longmuir, Linda Longmuir (another shire employee), Leslea Smith, Richard Boyne, Francine Boyne, Beverley Cooper and Vickie Cooper.
The defendant also adduced evidence from a loss adjuster, Mr Stuart Main.

The Shire of Koorda

The Shire of Koorda is basically rectangular in shape and measures approximately 70 – 80 km in a north/south direction and approximately 30 km in an east/west direction. It is located east of the towns of Kalannie and Cadoux, west of the towns of Beacon and Bencubbin and north of Wyalkatchem.
The shire population is approximately 400 persons, farming is the main industry and Koorda is the only township.
Only the main roads within the shire are sealed, including the Cadoux‑Koorda Road.

The Cadoux-Koorda Road

Exhibit 6HR includes 38 photographs of the bend and its western approach (which I refer to as 'the straight section'). These were taken by Mr Main on 13 December. Copies of some of them were separately received in evidence for particular purposes. I shall refer to the photographs within exhibit 6HR itself simply by photograph number and the copies by their exhibit number. Some photographs which were taken by the plaintiff when he re‑visited the accident site in mid‑2008 (54, exhibit 6.40 ‑ 6.44) and by Mr Davey on 26 October 2011 were also received in evidence.
A court must be careful when assessing photographs and ought not to attempt to read or construe them unilaterally where the evidence about the scene is contradictory (Pettigrew v Wentworth Shire Council [2012] NSWSC 624 [127]; Browning v Bitupave Ltdt/as Boral Ashphalt [2008] NSWSC 19 [115] ‑ [121]). That is not the case in this matter. There is very little dispute and I am able to make my own assessment and draw inferences.
In Mr Davey's opinion 'quite significant resurfacing' had occurred in the vicinity of the bend sometime prior to him seeing it on 26 October 2011. However, based on his photographs, photographs 1 – 39 and exhibits 6.40 – 6.44, and in the absence of any evidence to suggest otherwise, I am satisfied that no resurfacing occurred after the accident.
Based on the evidence of Mr Davey, Mr Main and as a whole, I make the following findings as to the general topography and layout of the straight section and the bend.
The Cadoux‑Koorda Road mostly runs straight in an east-west direction with very few bends. The bend itself is 200 m long and has been described as 'sweeping'. The sealed surface was 6.8 m wide.
There were pea gravel shoulders on each side of the sealed section. The width of the westbound shoulder was approximately 1.9 m. There was no evidence as to the width of the eastbound shoulder, but based on the photographs and in the absence of evidence to the contrary, I infer that it was similar to the westbound shoulder.
There were 10 white guideposts positioned approximately equidistantly along the very outer edge of the westbound shoulder. They were thus approximately 20 m apart and about 1.9 m from the sealed surface. (I shall number them from 1 to 10, commencing with the guidepost located at the junction of the straight section and the bend). The distance between guideposts 1 and 2 was probably slightly more than 20 m as that area of shoulder traversed the intersection of the road and a side track which is referred to below.
There were some low saltbush plants alongside some of the guideposts. They appear to have been present at all material times.
There was only a single guidepost on the eastbound shoulder located at the junction of the straight section and the bend.
There were no guideposts on the straight section, which was long and level. The bend headed north-east (or left) for approximately 200 m, straightened to the north‑east for a short distance and then turned east near the intersection with Hawkins Road. It then headed due east past Badgerin Rock Road, through another pair of bends and then continued along a lengthy straight to the outskirts of Koorda. The distance from the bend to Koorda was approximately 15 km.
The bitumen undercoat on the bend showed through the aggregate layer in places (known as 'flushing'), but the road was in good condition.
The land on either side of the bend was very flat and mostly comprised farmland and salt‑flat. There were some trees and low shrubs just off the eastbound shoulder of the straight section which impinged upon visibility of all but the beginning of the bend from the straight section. (This is readily apparent from photographs 1, 6, 7, 8, 10, 15 amongst others). Visibility within the bend was completely uninterrupted for 300 ‑ 400 m to the north‑east.
The surface of the bend cambered downwards towards the eastbound shoulder. Approximately 1.5 m below the westbound shoulder there was a ditch which was partly vegetated with saltbush and other low scrub.
A well‑maintained dirt side‑track ran south of the bend to a tangential intersection at the junction of the bend and the straight section so that, in effect, it formed an unsealed continuation of the straight section (see exhibit 7). This was once part of the Cadoux‑Koorda Road itself.
There was a fenced, triangular area of salt‑flat between the bend and the side‑track. The fence comprised ring–lock and barbed wire supported by star‑pickets and occasional split‑jarrah strainers. One section of the fence followed the alignment of the westbound shoulder of the bend at a set‑back of approximately 5 – 6 m. There was an old sign inside the fence decrying the lack of funding for country roads. This was located near the apex of the triangle quite close to the junction of the side‑track, the bend and the straight section.
In the photographs which were taken of the sealed surface of the bend on 13 December, in mid‑2008 and on 26 October 2011 there was virtually no noticeable loose gravel. There was a small gravel windrow a few centimetres high running along the outer edge of the westbound shoulder on 13 December.

Advisory signage

There is no dispute that there were two advisory signs in the straight section on 13 December. They are depicted in numerous photographs which were taken that day.
A speed advisory sign was located approximately 250 m from the bend. It depicted an 'S' bend and recommended a speed of 80 km per hour. The second sign ('the kangaroo sign') was located closer to the bend and warned of kangaroos for the next 3 km.
The plaintiff testified (variously) that there was no speed advisory sign on 6 October (22, 54) or that he had no recollection of it (61). Sergeant Toop testified that it was 'certainly' not there (127 – 128 and 138). Initially Mr Martin testified that he had no recollection of it (145), but he later said that it was definitely not there (152). Mr Bull testified that he did not notice the sign (54, 61).
These men also denied that the kangaroo sign was present (plaintiff 62, Toop 128, Bull 114, Martin 145).
Sergeant Loverock recorded in his accident report (exhibit 3.6) that there was no 'sign or control' and 'no special' road feature, and testified in cross‑examination that he would have mentioned the speed advisory sign if he had noticed it and accepted that there was most likely no sign (227). But, I am not inclined to give any weight to either the report, or his oral evidence, on this point. He had no prior knowledge of the actual locality (he had 'never been on that bend before': 231) and as far as I can discern from his evidence about 6 October, he never went further than 10 m past the accident site which was where he parked his vehicle (233). Having regard to my finding that the accident site was some distance around the bend (see [181] below) and not visible from along the straight section, the reverse is also true, from which it follows that Sergeant Loverock was never in any position to notice whether or not there was a speed advisory sign 250 m along the straight section, and he did not check either.
A number of local witnesses testified that they believed the speed advisory sign was in situ on 6 October. These were Mr McDonald (240, 242), Mr Boyne who thought the recommended speed was 90 km per hour (295), Mr Beverley Cooper (318), Mr West (350) and Mr Surtees (405). As regular users of the road, their belief was based on their familiarity with it rather than a specific recollection of the situation on 6 October.
Other local witnesses were non‑committal, namely Mr Longmuir (265) and Ms Boyne (310). Ms Longmuir was also non‑committal, but did not notice the sign (280).
There was no evidence that the sign was erected between 6 October and 13 December. Mr West has worked for the defendant for 20 years. His responsibilities at the time included maintenance of road signage (355) and keeping records of all shire works (341). He had no record of the sign being erected during the period in question. I am confident that he would have recalled it, and been able to point to some record, if the work had been done during the period in question.
The speed advisory sign is well depicted in photographs 8, 10 – 13. The steel post did not appear to me to be shiny or new (as contended by Dr Morrison QC) and it leant at a slight angle from the vertical. The gravel around its base looked well compacted and undisturbed. In short, the sign appeared to have been in situ for some time as at 13 December. (Compare its replacement which was erected in May 2013 – exhibit 12.1.)
Mr Davey provided helpful insight in his report dated 29 April 2013. After examining some photographs (including exhibits 2.52 and 2.53, which are the same as, or very similar to, photographs 11 and 8) he made the following observations (all emphasis in quotations is mine):
In both photos (and others) the [east‑bound] gravel shoulder … appears to comprise of two very different and well‑defined surfaces.
Adjacent to the sealed surface the shoulder is lighter in colour with what appears to be a compressed covering of gravel and possibly blue metal … [T]owards the outer edge of the carriageway [the shoulder] the gravel changes in appearance and appears more dense and uncompressed … [T]he delineation between the two surfaces is abrupt and obvious. …
It is also apparent that the change in surface follows a sinuous path and appears to be defined by the presence of roadside furniture and foliage.
Mr Davey opined that the 'sinuous path' appeared to be 'man‑made and deliberate' and inconsistent with friction from the tyres of passing vehicles. Those observations are consistent with the 'sinuous path' being the result of shoulder maintenance work. (A description of this process is set out at [59] below).
Based on my own observations of the photographic evidence (notably photographs 8, 11, 12 ‑ 19) and my findings in relation to the shoulder maintenance process, I concur with Mr Davey's observations, and reasons.
The 'roadside furniture' which Mr Davey evidently had in mind included the speed advisory sign (and the kangaroo sign).
Having regard to my finding that no shoulder maintenance work was carried out after 27 August (see [80] below), it follows that the 'sinuous path' must have been in existence since 27 August and, therefore, that the speed advisory sign was in situ at that time.
I am therefore satisfied on the balance of probabilities that the speed advisory sign was present on 27 August and 6 October in the same position as photographed on 13 December.

Traffic on the Cadoux‑Koorda Road

Very little evidence was adduced as to the nature and volume of the traffic that uses the Cadoux‑Koorda Road, save that there was evidently very little on the afternoon of 6 October. I may take into account the relatively sparse population of the district, and I accept that seasonal factors would come into play, so it is reasonable to assume that traffic such as heavy haulage would use the road in the harvesting season and buses during school terms. But I decline to speculate about such matters.
Having said that, it is common knowledge that sealed roads in the wheatbelt (such as the Cadoux‑Koorda road) carry various types of traffic regularly and throughout the year. I am aware of no objection to me proceeding on that basis.

The shoulder maintenance

Shoulder maintenance was carried out on 27 August on both sides of a 6.4 km section of the Cadoux‑Koorda Road (including the bend) between Badgerin Rock Road and the shire boundary. The work was done by Richard Cooper, Graeme Surtees and Michael Wilson and took two hours (342, 360, ex 3.101 and 3.238). Only Mr Surtees can now remember actually doing it (probably because it was his first time).
According to the defendant's records and Mr West (342), the same team spent the rest of the day (including half an hour of overtime) maintenance grading Lawrence Road, which is approximately 10 km south of the bend and was unsealed (see exhibit 6A).
The work on the Cadoux‑Koorda Road involved grading the gravel shoulders until they were flush with the sealed surface. The method was as follows.
A warning sign for oncoming motorists was placed at either end of the 6.4 km section. One shoulder was done at a time. A grader (operated by Mr Cooper) moved along that shoulder with its blade directed towards the sealed surface, scraping gravel towards the edge of the bitumen and sometimes onto it. A second grader (operated by Mr Surtees) came along behind, but positioned more onto the sealed surface, with its blade directed towards the shoulder so as to scrape any gravel from the sealed surface back onto the shoulder and thus level the shoulder. (This part of the process is known as 'trimming back'). A roller (operated by Mr Wilson) then made three runs over the shoulder to compact the gravel into the smooth compressed finish observed by Mr Davey.

The crew repeated the process in the opposite direction on the other shoulder. The warning signs were then removed and the crew departed.
Mr West testified that the first grader usually spreads very little gravel onto the sealed surface (367):
It's minimal, the gravel that does go on – the bitumen is very minimal. It doesn't go out to the middle of the road or anything like that. It's only – if it does go on, it's normally only a tiny little bit on the bitumen. It's not way out or anything.
He later testified that a few inches to 'a foot and half' at most was cut onto the bitumen (393), but Mr Surtees accepted that there 'could be times when grading shoulders [would leave] significant amounts of gravel … on the road' (410). Either way, it was accepted that the crew needed to be vigilant about this (Mr West, 366).
Mr Surtees occasionally checked through the rear window of his cab (411) and there was a general practice of checking the first shoulder whilst grading the other shoulder on the return run. There was also a general practice of checking both shoulders whilst collecting the warning signs at the end of the work. Mr Cooper testified about those measures as follows (399; see also 394):
Well, you generally look at the job on your way back, on the other side, you know, you pick it up on the way back – or the bloke that goes out and picks the signs up will say 'there is excess there'. Well, you jump back on your grader and you go back down and you trim that off.
From time to time Mr West sent Mr Surtees back to trim back (409 ‑ 411). There was no evidence that Mr West actually checked the work that was performed on 27 August and I find that he did not do so.
Mr West, Mr Surtees and Mr Wilson were quite helpful in their evidence, but I found Mr Surtees to be particularly open‑minded. He made concessions, including that the shoulder maintenance system was not infallible, which accords with some findings of mine (see [78] below). This trait, combined with his demeanour, left me with the impression that he was not entirely confident that the shoulder maintenance was not a causal factor in this matter.
Mr Cooper appeared to be overawed when giving his evidence. He tended to indulge in inappropriate facetiousness (eg, he gestured to the heavens before taking the oath) and dropped the adjective 'bloody' into his evidence on several occasions. More importantly, I observed a tendency to hyperbole and over‑generalisation. For instance, he said of Mr Surtees' role as the operator of the second grader (394):
He had – he had – a months experience by doing maintenance grading on gravel roads to be able to do that job.
… and you don't have to be a rocket scientist just to put your blade on the bitumen and watch the sparks fly all day.
I gather that friction between the grader blade and the bitumen surface can occasionally cause sparks, and it is regarded as undesirable, but he was unable to explain why 'sparks fly all day' (400 – 401). So the quoted passage was unhelpful and also demonstrated a less than serious appreciation of the second grader's role.
I turn now to make findings in relation to the shoulder maintenance.
First, there was no evidence of any means of electronic communication between the plant operators. On the contrary, based on Mr Cooper's evidence, it was necessary for an operator who wished to contact another to stop his machine, alight and approach the other(s), which he occasionally did. I find that this was not conducive to teamwork and hence the ongoing oversight of the work.
Second, no evidence was adduced about the specifications of the two graders. In particular, there is no evidence as to the width of the machines or the blades (which has ramifications in terms of the amount of gravel that could be scraped on or off the sealed surface). I gather that the parties are content for me to proceed on the basis that the graders were identical to each other and typical of the type that one commonly sees working on country roads (not to be confused with a bulldozer). As such, I assume that the blades were centrally suspended beneath the vehicle and of approximately the same width. They were made of high-strength steel which was able to withstand contact with abrasive materials such as bitumen and gravel. They were hydraulically operated and could be controlled within fine tolerances (Mr Cooper 399). A degree of skill was necessary in order to avoid mistakes and damage to the bitumen (Mr Cooper at 393 – 394).
Third, the shoulder maintenance process was only as reliable as the experience and skill of the operators. Mr Wilson and Mr Surtees were inexperienced (338, 360, and 409) and still undergoing training as at 27 August. In fact, I find that Mr Surtees had never previously worked on a sealed road.
Fourth, the team carried out 12.8 km of shoulder maintenance (6.4 km in each direction) in two hours. Mr Cooper regarded that to be impossible and thought that it would (or should) have taken a whole day (395). Having regard to his tendency to hyperbole, that estimate is likely to be unreliable, but there could be merit in the view that the work was rushed in two hours.
Fifth, the system of checking the work was not rigorous and seemed to depend very much on the ad hoc course of events. Basically it was left to someone on the crew to notice a problem whilst occupied with some other activity, such as grading the opposite shoulder or returning to collect signs. The first of those measures necessarily only enabled half the work to be checked and I have difficulty understanding how the second worked. I accept that the grading always ended where it began, so that it was necessary for someone to go back to the place where the team had turned around in order to collect the outlying sign. I gather that one of the work vehicles was used, perhaps a grader or a utility, but usually only one of the crew went back, so there was no observer checking the shoulders. I find that this task was treated as little more than an errand and did not represent a proper check of the shoulders.
Sixth, as pointed out before, the maintenance work left a sinuous, compressed track mark on the shoulder where the plant swerved to avoid roadside furniture. An inference is open that the plant (ie, both graders and/or the roller) was obliged to move onto the sealed surface itself on those occasions.
Seventh, and applying the sixth finding to the westbound shoulder of the bend, and bearing in mind that the guideposts were about 1.9 m from the sealed surface, I find that it would have been necessary for the first grader to steer well onto the sealed surface every 20 m. I find that this did happen given that none of the guideposts or the saltbush shrubs growing nearby was damaged (see photographs 29 and 34 in particular).
Against this background, I am satisfied that on 27 August more of the blade of the first grader than was usual must have moved onto the sealed surface of the westbound side of the bend, which would have tended to move gravel from the shoulder further onto the sealed surface than usual. Therefore, Mr Surtees on the second grader needed to follow suit. But, bearing in mind his lack of experience, he might not necessarily have appreciated the need to do so.
Eighth, as a matter of common sense, I would expect the modest gravitational force created by the camber of the bend and the small spherical shape of the pea gravel to assist the ingress of the gravel across the sealed surface.
Ninth, and based upon these eight findings, I am satisfied that there was a real risk that some of the gravel which was spread onto the sealed surface from the westbound shoulder of the bend by the first grader was not trimmed back and went unnoticed and unmitigated.
Having regard to photographs 1 to 38 and the fact that 17.8 mm of rain fell at Cadoux on 8 and 9 October and there were other falls on the 10th, 18th and 27th, Dr Morrison QC mounted an argument that the shoulders must have been re‑graded after 6 October.
I reject that hypothesis. Mr West (354), and possibly Mr R Cooper (397), acknowledged its theoretical feasibility based on the photographs. However, Mr West (who would know) said that it simply did not in fact happen and he would have recorded it if it had. In any event, I am not persuaded that the fact that a modest amount of rain fell 15 km away supports the hypothesis. Also, there appears to have been an amount of loose gravel on the shoulders on 13 December which is not consistent with them having been recently graded and rolled.

The accident – uncontentious facts

The plaintiff was riding on 6 October with Mr Bull, Sergeant Toop, Mr John Martin, Mr Max Weir and two others. Not all of these men were known to the plaintiff or the others. They were riding from Toodyay to Bullfinch, a distance of approximately 600 km along sealed roads. The weather was fine, sunny and hot.
All of them were experienced and rode machines with an engine capacity of 1200 – 1300 cc (21 – 22), except for the plaintiff who rode a Ducati 1000 cc six‑speed machine. He had been motorcycle riding since 1973 and was experienced in all possible conditions of road and terrain (17, 41). He was in fact a qualified military instructor (38).
They rode in single file at speeds of up to 110 km per hour. They occasionally stopped to rest and refuel and had plans to have lunch at the Koorda Hotel. Their last stop before the accident was at Cadoux. The plaintiff left there in the lead position.
He was wearing a helmet (67) and I shall assume the others were too. There is no evidence as to the design of the helmets, but I shall proceed on the basis that they did not interfere with the riders' vision (including their peripheral vision).
The accident occurred when the plaintiff was still in the lead. His motorcycle sustained only minor damage, namely a broken mirror, a damaged gear lever and scratches to the left‑hand side of the fairing. There was no damage to the boundary fence, which indicates that neither the plaintiff or his motorcycle struck it at high speed.
The plaintiff suffered severe injuries, namely fractures of the C4/5, T10 and T7 vertebrae, the right scapula and numerous ribs, and bilateral haemo‑pneumothoraces (ie, punctured lungs). Initially he drifted in and out of consciousness, but he eventually crawled from the ditch onto the westbound shoulder of the bend and removed his helmet.
None of the other riders saw the accident happen. They all rode straight past whilst the plaintiff and his machine lay in the ditch. Mr Bull (115), Sergeant Toop (128) and Mr Martin (146) noticed a small cloud of dust to their left (ie, on the opposite side of the road) which caused them to slow down a little. The plaintiff's absence was not noticed until they reached Koorda.
It was decided that Messrs Martin and Weir would go back to look for the plaintiff because they had the most fuel in their motorcycles. They ultimately came across him slumped on the westbound shoulder of the bend. There was little or no mobile telephone coverage in the area. Mr Weir remained with the plaintiff and endeavoured to keep him immobile. Mr Martin returned to Koorda for help and then returned to the accident site.
The group of seven locals then arrived and parked their vehicles on or near the straight section. Mr Longmuir later moved his vehicle back to the accident site to provide some shade.
An ambulance did not arrive until approximately two hours after the accident and the police did not arrive until after that, ie, at about 4.00 pm (Sergeant Loverock, 223, exhibit 3.4, and Mr Martin, 154).
Sergeant Toop and Mr Bull got lost returning to the scene and did not arrive until after the ambulance. They passed Sergeant Loverock in the process (Bull, 124). In fact, the plaintiff was already in the ambulance when they reached the accident site (Bull, 122).

Evidence about the cause of the accident

The plaintiff testified that he approached the bend along the straight section idling in fourth gear at a speed of 100 – 110 km per hour (26). He was hunched over the handlebars of his motorcycle (62) and could see no oncoming traffic in the bend. He decided to take a line towards the outer or right‑hand edge of the sealed surface, that is on the westbound side of the road, and maintain his speed. He drew the line on exhibit 6.41A. It seems to me that he must have been quite close to the gravel shoulder. He testified (23):
I came along that road. I approached that corner. The corner looked fairly clean and everything and as I took a wide line into it, and as I came around the corner, I noticed gravel, that I was right out and I had already taken my line. I went down in gears to slow myself down because I didn't want to hit the front brake too hard and lose the front end and I just was still over and I thought, I'm just going to have to ride this in and just let it go and I went into the patch of gravel and the front wheel went, the rear wheel went and I felt the bike just slide away from me and I slid backwards probably 4 – 10 metres and I hit – hit something hard behind me and I stopped.
He testified that he first saw the gravel at a distance of approximately 30 m. The patch consisted of dirt and pea gravel, like the shoulders, and was approximately 5 – 6 m in length. It lay across the whole carriageway, save for about a metre on the inside (eastbound) edge of the bend. He marked the area on exhibit 6.41A and said that it was in the vicinity of guideposts 4 and 5 (62).
The gravel was about 2 ‑ 4 cm thick and appeared to have been recently graded (47) but not broomed off (51). He was confident that the gravel could not have 'fallen off a truck'. He testified that he felt qualified to form these opinions 'at a glance' because he had gained experience working for the Shire of Toodyay for a month and a half and from riding on country roads on a regular basis and because he had seen 'a lot of roadwork'. I have my doubts about the adequacy of those qualifications. I readily accept that a person in the plaintiff's position might be able to identify a want of trimming back or brooming off 'at a glance' shortly after some shoulder maintenance was carried out, but it is drawing a long bow to suggest that such was possible in this case in the bare second or so that he had to form an opinion. Which begs the question, why would he be so confident? I conclude that this evidence illustrates a self‑serving trait that I noticed throughout his evidence.
In cross‑examination the plaintiff denied that the accident occurred because he was travelling 'too fast'. He said (68):
No, I was not going too fast, I was below the speed limit.
This answer provides a pertinent insight into the plaintiff's thought processes, namely he regulated his speed by reference to the legal speed limit (the maximum) rather than the conditions.
Mr Bull had extensive experience policing and motorcycling in country areas. He testified that he was riding 200 – 300 m behind the plaintiff (113) and saw him enter the bend (115). He approached the bend on the inner line at 'somewhere around' 100 km per hour (113), ie, a maximum of 11 seconds behind the plaintiff. The bend was 'fairly gentle' and could be taken at around 100 km per hour 'without an issue', but there was some gravel as he 'entered the corner'. He testified (115):
Once we came into the – the corner, there was gravel across the road … it wasn't really confined anywhere, but more to the left. Heavier concentration on the left – left edge of the – the bitumen, and then sort of strewn and spread across towards the centre line and with – to a much lesser extent on the opposite side of the road also. And that – it wasn't just confined to a – a small area. It was, you know, spread within the – the bend, I think, which, as – as a rider it certainly required some, you know – ah, a back‑off of speed to negotiate that without losing control of the bike.
…
Well, just - just prior to going through [the area of gravel] … I saw a - a cloud of dust, red dust … so - and I - and I remember thinking to myself … 'oh, shit, I hope that wasn't Pete that's created that dust'. As I've gone around the corner I've looked to the right hand side as well to see if there was any sign of Pete coming off his bike. I couldn't see anything. And then we just kept heading towards Koorda.
The gravel was 'relatively even spread' and 'appeared to be something that was mechanically created' and 'it looked as though it had been graded and had not been swept – they had not run the sweeper over it' (116).
In cross‑examination Mr Bull reiterated that he noticed the gravel at the start of the bend and agreed that most of it was on the left‑hand side. He marked this on exhibit 6.41B, emphasising an area on the inner left‑hand part of the carriageway, thinning towards the centre with a small amount on the outer (westbound) side.
He explained how he negotiated the bend (118):
Was there anything you did or didn't do which assisted in that?‑‑‑I think that probably the cloud of dust helped me a bit because I was already looking for the possibility that maybe Pete did leave the bend there, so I was probably backing off already and then, you know, paying a bit more attention to all the surrounds, I suppose.
I understand Mr Bull to be saying that he was alerted by the dust cloud and therefore already reducing his speed before he saw the gravel patch. Given that he was only about 11 seconds behind the plaintiff, the cloud could not have been far from the accident site.
He did not examine the road surface closely when he returned after the accident because he was more concerned with the plaintiff's welfare. He could not see any mark where the motorcycle had come off the road (123). He regarded the gravel on the sealed surface to be hazardous, but did not take any steps to have it removed notwithstanding he was a serving police officer, because he believed that this would be dealt with by the local attending police (123 ‑ 124).
Sergeant Toop also had extensive experience policing and motorcycling in country areas. He was riding at the rear of the group when the accident occurred (126). He first noticed something amiss when he saw a cloud of gravel dust in a paddock on the left as he approached the bend (128). As I understand his evidence, at that point he was already slowing his speed from about 100 km per hour to about 80 km per hour as a 'precaution' (129) because he could 'see the bend [was] … there' (138).
His 'attention was drawn to … a large amount of gravel on the sealed surface' of the bend (128). It 'completely covered' the sealed surface of the road – 'a film of gravel across the top of one side to the other'. It varied in density because, it seemed to him, traffic had been passing through it. It was 'quite uniform', 'man‑made' and 'machine‑created'. He had 'no doubt … that it was created by a grader'. He sketched the area on exhibit 6.41C. This shows that the gravel commenced no sooner than guidepost 2 (20 m) into the bend (further along than Mr Bull said) and extended or radiated around the bend, and completely across the road.
Sergeant Toop testified (129) that 'it was quite a prolonged patch of gravel' and it 'took a prolonged act to ride through', that is to say it was not something which was no sooner encountered than it was passed through. He was asked if it was difficult to keep his motorcycle upright and said (129):
Look, it wasn't – it wasn't terribly difficult but it certainly did – we certainly did have movement underneath the vehicle. It was untidy and it could have been any one of us that fell off that day …
Sergeant Toop was firm about the pattern of the gravel and testified that it was not the same as the 'trail that generally follows the curvature' of a gravel‑shouldered road which, he said, can be easily negotiated on a motorcycle (130). He said he had no way of avoiding the gravel in this instance because it lay completely across the sealed surface.

Aspects of his evidence were confusing. Initially, he said that after returning to the accident site he 'did not go back and have a look at the gravel patch' (131). But shortly afterwards he said that the centre of attention ('where we were dealing with Peter') was 'right on the gravelled area still … there was still gravel at that area' (132). And, it was he that made the accident report to Sergeant Loverock so it would have been him, if anyone, that pointed out the hazardous area of gravel. I infer that Sergeant Toop did not actually pay much attention to this at the time and basically left Sergeant Loverock to his own devices, as he said (141):
Well, did you speak to him [ie, Sergeant Loverock] about the gravel?‑‑‑Only that there was – you know – that was – the gravel was on the road and that – I had a very brief conversation with Peter, because - with Dave Loverock, because my intention was – I wanted to get back to where the rest of the riders were, for reasons – and so I left it with him ultimately.
There is some confusion in this passage as to whether Sergeant Toop was referencing a 'brief conversation' he had with the plaintiff or Sergeant Loverock, or both. Based on his evidence as a whole, and the information that he provided to Sergeant Toop for inclusion in the accident report, I infer that he was referencing conversations with both men, but for present purposes the important point is that his conversation with Sergeant Loverock was 'very brief'.
In cross‑examination Sergeant Toop testified that he noticed that the plaintiff's motorcycle was leaning against a post 'off to the right side of the road'. This was not where it was when he first travelled through the bend moments after the accident (135). So, it had been moved by someone after the accident.
He took no steps to have the gravel hazard reported to the appropriate authorities or cleared away because he was off duty and left it to the attending local officer (141).
Mr Martin testified that he was in the third or fourth position in the file of riders (144). He was also very experienced motorcycling in rural areas. He also owned a grader which he used regularly. He testified that the shoulders of the bend appeared to have been recently graded and there was 'gravel right across the road surface on the corner – on the bend' (144 – 145). He testified that it had 'a bit of dirt through it' but it appeared to be 'normal graded gravel'. He said that it was the same thickness 'virtually right across the road' and that it had 'been spread' and 'put there', although 'obviously cars [had] gone through it as well'.
He testified (144) that the bend was 'fairly gradual and was not one on which he would ordinarily reduce speed'. However, he slowed down as he entered it to between 70 – 80 km per hour because he saw 'a lot of dust on the left‑hand side' (146). He said that it was 'lucky' for him that he saw the dust cloud because otherwise he would not have slowed in time to see the patch of gravel in the bend itself. In cross‑examination he testified that he was 'still looking at the dust' as he was riding around the bend (152 – 153). This evidence is consistent with the gravel patch being some distance along the bend itself, which he later confirmed. By reference to photographs 6, 7 and 19 and exhibit 6.41D, he said that the gravel patch commenced near guidepost 4, ie, approximately 60 m into the bend (157 ‑ 158).
Mr Martin's demeanour in evidence was unfortunate. He seemed to be anticipating an adversarial temper which was absent from the trial and demonstrated a dogmatic and close‑minded attitude. It was necessary for me to intervene on two occasions (149 – 150 and 153). His attitude to some straightforward and barely important cross‑examination about the measured length of the shoulder maintenance work illustrated this oppositional trait. He said (148):
Well I would say that they have measured it wrong.
One is driven to wonder how he would know better and why he would dispute it anyway? This trait also intruded into more pertinent areas such as the condition of the sealed surface of the bend and the presence of the advisory signs. As to the latter, his evidence evolved from having no recollection of seeing the speed advisory sign to it definitely not being there ([41] above).
Sergeant Loverock is currently the officer in charge of the Dampier police station and is also an experienced motorcyclist. He was stationed at the Mukinbudin police station (east of Koorda) in October 2007 and attended the accident from there. The ambulance had departed by the time he arrived, but Sergeant Toop 'provided all the details' for the crash report and pointed out where the accident had occurred (224). Sergeant Loverock testified (224 – 225):
There was also a small amount of debris left behind that indicated there'd been a traffic crash or a motorcycle crash at the scene. I think there was a … motorcycle rear vision mirror and some plastic on the side of the road. That's about it.
…
There was a portion of gravel on the road …
… it was no greater than gravel on the road or on any country road, especially around a – a bend as – as where vehicles travelling on a road they'll flick any loose gravel up, generally gravitates towards the centre of the road or leaves it's described as channels in the road where vehicle wheels or tyres generally travel on. I didn't think at the time it was a massive amount of – a – an exceptionally large amount of gravel on that area but there was a – a gravel on the road …
… but I didn't deem it to be … any more than any other country road or bend …
Although he was unsure, he had a recollection of having seen a small amount of paint on a guidepost or on the road. I am inclined to discount that evidence because he made no record of it, no other witness corroborated it and there is no evidence of a guidepost suffering impact damage.
Sergeant Loverock wrote out a pro forma accident report (3.5 – 3.7) whilst sitting in his vehicle at the scene. Strictly speaking this was the plaintiff's accident report and he would ordinarily have lodged it. Sergeant Toop was evidently accepted as the plaintiff's amanuensis for that purpose and Sergeant Loverock wrote down what Sergeant Toop told him. (Another section containing the plaintiff's personal details was filled in by Sergeant Loverock some days later).
Under the heading 'Description and Details of Crash' Sergeant Loverock noted:
Rider of vehicle 1 travelling east on Koorda/Wongan Hills Road at about 110 km/hr. As he rounded the bend (left) in road his front tyre hit a patch of gravel on road and slid sideways.
Vehicle 1 fell left side down and slid across road to right hand ditch.
Examination of scene found a large amount of gravel across road through bend.
Sergeant Toop must have been the source of the information about the plaintiff's speed. The evidentiary significance of that was not explored before me. However, the report was tendered in evidence by the plaintiff (12 – 14, 100) pursuant to s 79C(2a) of the Evidence Act 1906 and has never been repudiated by him (other than implicitly by his evidence that his speed was 100 – 110 km per hour).
Sergeant Loverock drew a sketch on the report which depicted the straight section, the bend and the 'dirt continuation of road' (ie, the side‑track). He also drew a somewhat elongated oval lying completely athwart the sealed surface at the point where the 'dirt continuation' intersected with the bend and the straight section. This was said to represent the area of gravel (235):
… that's the area the gravel is in. Its not to say that that's the area that's covered by the gravel, that's the area the gravel was in.
He also depicted the plaintiff's motorcycle lying east on the westbound shoulder of the bend and not far from the intersection of the 'dirt continuation' and the sealed surface. This was not accurate because the motorcycle ended up in the ditch, as he noted.
Sergeant Loverock agreed that the sketch was not drawn to scale and accepted the possibility that the intersection of the side‑track and the straight section/bend was not as close to the oval of gravel as he depicted (236). He explained that all he was trying to signify was that the gravel was located after the start of the bend (236). Overall, I find that the sketch was intended to be illustrative but not accurate.
Returning to the accident report, Sergeant Loverock addressed a checklist of 'possible contributing factors' in a section marked 'police use only'. He selected 'unknown' and eschewed 'excessive speed', 'fatigue' and 'inattention'. It is to be inferred that as he sat in his vehicle at the scene he blamed neither gravel or speed.
Sergeant Loverock reviewed the matter on 2 November and completed another official form (3.4). This time he attributed the cause of the accident to 'loose gravel on bend'. That opinion was vetted and confirmed by the officer in charge of the Koorda Police Station (Sergeant P Kershaw) on 17 April 2008.
Sergeant Loverock accepted in cross‑examination (232) that his report was more likely to be accurate than his oral evidence, and that he struggled to remember what he actually saw at the accident site. Nevertheless, he remained firm that the quantity of gravel on the sealed surface was not excessive for a country road (231 – 235) and that, in his opinion at the time, it was not of 'such a level that would require immediate removal'. The following exchange took place (231):
If it was a large amount of gravel, you're not suggesting that a large amount of gravel on a bend is normal on country roads, are you?- - - an amount of gravel is always on every country road I didn't know - I didn't know - think - I didn't think it - I'll start again. I didn't think at the time it was of such a level that would require immediate removal.
That wasn't what I asked you? - - - it was - a large amount. OK. Yeah, it was a large amount compared to other corners, yes.
So, it was an abnormal amount of gravel on this bend, wasn't it? - - - I - I don't know. I've never been on that bend before. I don't know if it was normal or abnormal, but it was high for a corner, yes.
It was my impression that Sergeant Loverock was not at ease giving this evidence. Whilst I could be wrong, I sensed a degree of frustration on his part which, I feel, arose from the degree of weight which Dr Morrison QC sought to place on the accident report. I sensed that Sergeant Loverock wanted to retreat from the report.
I turn now to the evidence of the locals who arrived after the accident.
Mr Longmuir testified that he noticed a motorcycle against the fence 'probably … 30 m from the embankment' which was not accurate because the distance from the embankment to the fence was not more than five or six metres. In cross‑examination he was persuaded to accept that the distance might have been a little less, 'but not much' (267).
He testified that there was a lot of dust on the motorcycle but no damage. He could see nothing on the sealed surface or the shoulder that could explain the accident. He and Mr Boyne and Mr Beverley Cooper 'had a look at the road and just tried to work out, sort of, what had happened' (261). He testified:
Nothing. There was no skidding. You know, we sort of thought that there might have been a black mark to sort of indicate that he had tried to stop, but no. Just a faint mark in the, after he's come off the bitumen, just into the dirt, there was a faint bike mark, wheel mark, just carrying on … straight over the bank.
As to the surface of the road (262):
… there was no rough pot holes or anything in it. It was just good, smooth surface.
He was asked if there was 'anything on top of the gravel' [sic] (262):
There wasn't a lot of gravel. It was just sort of like, a gravel road – no, there wasn't a build up.
Mr Longmuir agreed in cross‑examination (266) that amounts of gravel occasionally built up on the sealed roads in the shire and accepted that there was 'a small amount' of gravel on the road where the accident occurred.
Ms Longmuir has been an employee of the defendant for 18 years and is currently the deputy chief executive officer. She was the senior administration finance officer in 2007. She tried to render assistance at the accident site including giving directions to the ambulance crew. She testified (276):
We looked around. There was a skid mark or a – a mark in the gravel where the motorcycle had gone from the bitumen through to the – onto the gravel and down the shoulder of the road.
She said that the skid mark was 10 – 20 cm wide and was on the shoulder itself (277 – 278). It ran 'basically straight from where the straight of the road had been off the shoulder, on the very beginning of the bend, slightly around the corner but not very far'.
Ms Longmuir testified that the motorcycle had come to rest 'partially over' the old fence in the ditch (which is consistent with it lying against the rickety ring‑lock fencing) and was 'around 20 m' from the mark on the shoulder (ie, it had travelled along the ditch somewhat).
Ms Longmuir stayed at the scene for about an hour and a half but 'kept away from … the injured person', that is, away from the accident site. She did not 'overly' look at the road surface but recalled that it was 'the same as it was all the way along'. She could see nothing that was 'different about it' and denied any build up of gravel (277).
Ms Smith did not 'notice anything' unusual about the road surface and 'just saw the motorbike in the gutter and it … seemed like he'd just gone over the edge' (288). She did not 'specifically remember noticing' any loose gravel on the sealed surface, but nor did she go looking (290).
Mr Boyne testified (294) that he was at the scene for approximately two hours and did not see any gravel on the sealed surface. In cross‑examination he agreed that he had first been asked to remember this only recently (298).
Ms Boyne testified that she and her husband parked their vehicle in 'a safe area around the corner' (ie, on the straight section) and walked back to the accident site. But she 'didn't go close' because she did not think she was needed (303). Based on a photograph that had been given to her before the trial (probably no 2), she testified that the accident occurred 'halfway around the bend' or 'around the bend a little bit' (304). She said that the road surface was 'just normal' and there was 'nothing noticeable' about it. She said (304):
I'm just positive that there wasn't [any gravel, blue metal or sand on the road] because we were there for at least an hour walking around, waiting for the ambulance and thinking, what on earth's gone wrong. So that's why – I'm sure if there was something there we would have – 'oh yeah, okay'. But, no, I certainly don't think so.
In cross‑examination she said (309) that she did not even see the motorcycle and accepted (310) that she 'kept well away from the injured person' and did not inspect that immediate vicinity. This evidence predicates that the accident site was some distance from the straight section.
Mr Beverley Cooper testified that he remained at the accident site until the ambulance arrived. He saw 'nothing out of the ordinary' about the road surface (313) and the 'bitumen looked fine' (315). He said (321) that the bend was not one on which he would generally need to slow up. He testified (314):
… we blokes … sort of wondered what happened, so you sort of walk down the road and have a bit of a look around and you see where his bike did go off the side of the road. It didn't look like there was any brake marks, it was just two – or a set of tracks going off the side off the bitumen onto the gravel verge and down the fence line.
Later he said (321) 'we couldn't see any cause for the accident'.
Mr Cooper insisted that he saw 'no gravel on the road' apart from what was on the shoulders (324).
He said that the motorcycle was damaged and looked like 'it was totalled' and 'pretty bent up'. He said that 'you wouldn't get on it and ride it' (323). Clearly, there was no factual basis for that opinion and when he was asked if he could be wrong he seemed (correctly) to sense a challenge. He became defensive and curtly said that 'the motorcycle could have been fine' but he believed it was 'totalled' because that was what he 'thought' (323).
Ms Cooper testified (326):
I saw a person laying in a ditch and a motorcycle a bit further back from him.
I got out of the car once my husband got out of the car and I just stayed by the car. By that time Linda [Longmuir] and Fran [Boyne] had come along and we just chatted about what was happening and hoped everything was reasonably fine.
It could've been an hour … we stopped there until the ambulance had come along.
…
Stayed by the car. Didn't think it was worthwhile doing anything, just stayed – stayed out of the way.
Ms Cooper testified that she 'wouldn't have thought' that there was any gravel on the bitumen and had 'a memory that there was no gravel on the road' (328 – 329). She was cross‑examined on her witness statement in which she evidently stated that either the plaintiff 'was near the fence', or his motorcycle was, but she could 'not remember which'. She said (330):
Either way the – the bike and the – that person were very close to the fence. One one side and one the other side.
When asked to expand on this statement she also appeared (correctly) to sense a challenge and said:
Well – the – the fence was – was down.
The emphasised passages were new to her statement, no‑one else gave that evidence and she was obviously wrong about them. Exhibit 6HR was shown to her and she was asked if the fence appeared as she remembered it, where-upon she said (330) 'I really don't remember'. The following exchange then occurred (331):
Do you agree with me that the motorbike and the man were both on the road side of the fence?---Yes, I do but one further away from the other.
Ms Cooper explained that the events were 'a long time ago' and she had had a lot of things to worry about over the years besides the accident. In re‑examination the following exchange occurred (331):
… how close did you walk to where the man was on the ground?---No, not very close at all. I didn't see.
She went on to say that she was standing near the cars (ie, on the straight section), that she remembered the corner, 'that other road going off that side' (ie, the side‑track) and 'the motorcyclist being over that side'. She said that she could see 'the person on the motorbike from where we were'.
Taking everything she said into account, I am satisfied that Ms Cooper did not go near the accident site and has a very poor memory of the whole event.
Graeme McDonald is the retired chief executive officer of the defendant. He commenced working for the shire in 1997 as works manager and was the chief executive officer when he retired in July 2011. He was employed by the Shire of Mt Magnet for approximately 16 years before joining the defendant. He had 50 years' experience working in local government.
He testified that Ms Longmuir advised him of the accident on the following Monday and he attended the bend that day. I believe that he is mistaken about the day of the week because his diary shows that he took a rostered day off and went to Albany on the Monday. Nevertheless, I accept that he inspected the bend in the week commencing 8 October.
He testified (238 – 239) that he 'could see where a motorbike had come down the road and well, obviously failed to take the bend … and appeared to have carried basically straight on'. He based that opinion on the presence of 'track marks, gouge marks in the shoulder of the road leading into the scrub'. As to the road surface (239):
I didn't think there was anything untoward at the time, a – fairly normal for a relatively narrow bitumen road, you know, there may have been some loose material on it but that just happens from natural wear and tear, particularly on – or natural use I should say, but particularly on a – on a bend where a vehicle can be throwing the material one way or the other.

He submitted that he will lose two allowances, namely a special action forces allowance and a separation allowance. As at 10 April 2013 these were, respectively, $12,431 gross per annum and $1,440.01 gross per fortnight (1.317). The defendant conceded the first of these allowances, but not the second. Mr Clyne submitted that there was no evidence that the plaintiff's separation allowance would be forfeited when he leaves the SAS. I accept that submission for the following reasons.
In cross‑examination (87) the plaintiff said that he was now earning $115,000 or $120,000 per annum. He did not 'know off the top of [his] head' but suspected that it would fall to about $65,000 per annum upon leaving the SAS. For what it is worth, according to the most recent payslip (1.317) his base annual salary was $84,667 and over $141,000 ($5,424.49 x 26) inclusive of all allowances (including the higher duties allowance). Obviously, no weight can be placed on his oral evidence on that point.
This leaves the payslips themselves. The most recent (1.317) described the separation allowance as follows:
Qual SAS Member MWD Sep All 1440.01
No evidence was given as to the meaning of that phrase or the basis of the entitlement and Mr Clyne passed over it when he was cross‑examining the plaintiff about exhibit 1.317. Superficially, it appears to have something to do with the plaintiff's membership of the SAS, but that is misleading.
The following evidence supports a finding that he has been receiving the same allowance at all material times.
The fortnightly payslip dated 13 July 2006 (1.162) includes an allowance of $898.15 described as:
SAF All‑Qual Dis SASR/4RAR cat MWD/MWDS 898.15
Superficially, this entry discloses that the allowance was payable irrespective of whether the plaintiff was in the SAS or the RAR (it being remembered that 4RAR was his unit until January 2005).
Further, it is apparent from the plaintiff's personnel file that he first applied for this allowance on 1 September 2003 when he was stationed full time in Singleton but his family resided in Toodyay. The application form (5.223 – 4) is entitled:
Application for Member With Dependants (Separated) (MWD(S)) categorisation.
As I construe that document (and a similar application on 10 February 2005: 5.307), the purpose of the allowance is to compensate a member of the ADF who is obliged by his posting to be separated from his dependants, hence the acronym 'MWD(S)' which appears on the application form itself and on the payslips.
In other words, the plaintiff's entitlement to the separation allowance is dependent on his posting rather his unit. I am unable to make a finding that he will cease to qualify for the allowance when he leaves the SAS.
To sum up, I shall assess the plaintiff's future economic loss on the basis that but for the accident he would now be a sergeant, would have had five further years in the SAS and five further overseas deployments of 5 1/2 months' duration, but has a retained earning capacity in the SAS for one year and the ADF to age 65, but there must be a discount for contingencies.
I turn now to determine what that discount should be. Mr Clyne submitted 50%. There is force in that given the substantial uncertainty in the evidence about the positive contingencies on which the plaintiff relies. However, in my opinion there is a contingency for which the defendant has made insufficient allowance, namely the plaintiff's psychological and psychiatric prognosis, which is poor notwithstanding his resilience and stoicism. In my opinion, if the defendant's submissions are to be adopted, as they will be, the appropriate deduction should be 40%.
I turn now to the calculations.
The loss for the lost promotion is $41.68 net per week calculated as follows: $107.30 for lost sergeant's increment ($9,000 x 0.62 ÷ 52) less $65.62 ($131.24 ÷ 2).
The special actions forces allowance equates to $9,944.80 per annum gross if lost for four years but allocated over five, or $6,165.77 net ($9,944.80 x 0.62) or $118.57 net per week for five years.
The annual value of one 5 1/2 month overseas deployment equates to $45,900 ($33,400 plus $12,500 tax 'rebate', based on the 2009 – 2011 figures) or $882.69 per week.
The total weekly amount is therefore $1,042.94 net ($41.68 + $118.57 + $882.69). The award for future economic loss (excluding superannuation) is $141,610.39 ($1,042.94 x 60% x 6% multiplier for 5 years 226.3).
I have cross‑checked that assessment using a different approach. I am satisfied that there is a prospect that the plaintiff's career in the SAS would not have continued for longer than it has even if the accident had not occurred, but there is a countervailing prospect that his entire career in the ADF will be curtailed because of his injuries and psychological/psychiatric disorders. Assuming those matters to be the case, an award which is the equivalent of the current value of about two years' loss of his current net earning capacity is, in my opinion, at the very low end of the range, even allowing for the fact that the actual loss may not accrue for several years. In my opinion the award should be rounded up to $160,000.
To this should be added an allowance for superannuation. I accept the defendant's methodology which produces an amount of $16,800 (10.5% x $160,000).

Past and gratuitous and domestic services

The plaintiff was severely disabled after his discharge from hospital. Based on his evidence I make the following allowances:
(i)For services provided by his mother for 13 weeks at four hours per day (the lower end of the range claimed by the plaintiff; 38 – 39): 13 x 7 x 4 x $30 = $10,920.
(ii)For services provided by his friend, the late Blaine Diddams (39 – 40), adopting half a day per week for 13 weeks: 13 x 4 x $30 = $1,560.
(iii)For a lawnmower/gardener at $20 per month from November 2007 to March 2009: 17 x 20 = $340.
In his evidence and submissions the plaintiff contended that an allowance should be made for gratuitous and domestic services provided by his two children at the rate of 2 hours per day every second fortnight (40). However, no claim appeared in the calculations which accompanied the submissions, and rightly so. As at September 2003 the children were aged 4 and 2 years (5.2 – 3) and they were therefore no older than 9 and 7 during the relevant period.
In summary, an amount for past gratuitous and domestic services should be allowed in the sum of $12,820.

Interest on past loss and damage

Interest should be awarded at the rate of 3% on combined past economic loss of $172,154.75, ie, $5,164.02.

Future treatment needs

The plaintiff submitted that 'upon cessation of employment with the [ADF he] will be responsible for all his medical expenses'. To date they have been paid by Veterans' Affairs and the ADF (30).
The defendant submitted that no allowance should be made because the plaintiff has made a full recovery. I do not accept that submission because the plaintiff will need treatments, but I have a problem because there is no evidence that Veterans' Affairs or the ADF will stop paying when the plaintiff retires. He bears the onus of proof on this issue and I can make no finding. On the other hand, the defendant did not explicitly take the point. There is some evidence that the plaintiff pays some of his own expenses (31), but there is very little evidence about his recent or ongoing requirement for pain relief (as at 25 November 2009 he said that he was taking none: 2.25 and 2.29), for gymnasium expenses, physiotherapy, chiropractic and allied treatment and psychological counselling. Dr Proud believed that in‑patient treatment may be necessary from time to time. I propose to allow a sum of $15,000 calculated as follows:
$20 per week x 739.6 (multiplier for 30 years) = $14,792 rounded to $15,000.

General damages for pain and suffering and the loss of amenities of life

In my opinion the plaintiff is entitled to a substantial award by the standards of damages awards in this State. He suffered very significant pain for some period after the accident, continues to do so and will do so for the rest of his life. He has also suffered a severe psychological injury. Dr Proud described him as 'stoic' but his symptoms are prevalent and debilitating.
Significant weight must be given to the interruption to the plaintiff's career. I am satisfied that his military career and in particular his membership of the SAS are extremely important to him. He comes from a family with a long tradition of military service (15) and he has made enormous personal sacrifices at times to pursue his career. For all its burdens and hazards, it has given him a great deal of satisfaction and he based all of his future plans around it. That has been taken from him, together with the ability to enjoy many recreational activities which might have otherwise acted as surrogates for his professional life.
Overall, I am satisfied that the plaintiff has suffered considerably to date both physically and mentally and has had much taken from him in terms of the amenities and enjoyment of life, and such will continue indefinitely. In my view his stoic nature does not change the fact that he has felt the change in his circumstances keenly and will continue to do so. The award is $90,000.

Summary

To summarize I assess the plaintiff's damages before any reduction for contributory negligence as follows:
Past economic loss including superannuation           $159,334.75
Past gratuitous and domestic services  $ 12,820.00
Interest on past losses  $    5,164.02
Future economic loss including superannuation        $176,800.00
Future treatment expenses  $ 15,000.00
Pain and suffering and loss of amenities of life          $ 90,000.00
Total$459,118.77

Conclusion

For the above reasons I make the following findings:
(i)The defendant is liable in negligence to the plaintiff.
(ii)The plaintiff was contributorily negligent and his damages should be reduced by one third.
(iii)The plaintiff is entitled to judgment in the sum of $306,079.18.