Ross-Sampson v Crawley

[2003] NSWCA 335

CITATION:	Ross-Sampson and Anor v Crawley [2003] NSWCA 335
HEARING DATE(S):	12 November 2003
JUDGMENT DATE:	5 December 2003
JUDGMENT OF:	Meagher JA at 1; Handley JA at 2; Wood CJatCL at 3
DECISION:	1. Appeal allowed and the judgment in favour of the plaintiff, for damages to be assessed, set aside; 2. Judgment entered for the defendants; 3. The respondent is to pay the appellants' costs of the proceedings and of the appeal, and to have a certificate under the Suitors Fund Act.
CATCHWORDS:	Appeal against liability - Respondent injured in motorcycle accident - trial Judge's evaluation of the evidence - whether evidence sufficient to establish breach of duty of care owed by first appellant.
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472
PARTIES :	Darren Ross-Sampson Darrell Ross-Sampson Phillip Mark Crawley
FILE NUMBER(S):	CA 40792/02
COUNSEL:	JD Hislop QC with JP Guihot (A) B Donovan QC with P Beale (R)
SOLICITORS:	Hunt & Hunt Lawyers (A) Conditsis and Associates (R)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	133/02
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

- 20 -

CA40792/02

MEAGHER JA
HANDLEY JA
WOOD CJ at CL

Friday 5 December 2003

Ross-Sampson & Anor v Crawley

Judgment

1 MEAGHER JA: I agree with Wood CJ at CL.

2 HANDLEY JA: I agree with Wood CJ at CL.

3 WOOD CJ at CL: The appellants appeal from the decision of her Honour Judge Sidis, following the grant of leave given by this Court on 19 May 2003. The proceedings before her Honour related to the respondent’s claim for damages in respect of injuries, which he sustained in a motor cycle accident, on 14 March 1998. The question of liability, which was found adversely to the appellants, was determined as a preliminary and separate issue. Damages have yet to be assessed, awaiting the outcome of this appeal.

4 At about 1:50 PM on 14 March 1998, the respondent was riding a 750 cc Kawasaki motorcycle in a southerly direction along Wiseman’s Ferry Road, Somersby. He was being followed by the first appellant, who was driving a Holden Commodore that belonged to his father, the second appellant. The road was a winding bitumen surface roadway with a single lane in each direction. The speed limit in the area was 80 kph, although there was a 55 kph advisory speed sign immediately before the right hand bend upon which the respondent came to grief.

5 Although there were issues as to the precise point on the roadway where the respondent lost control of the motorcycle, and as to the reason why he did so, it was common ground that, while attempting to take the bend, at 70 to 80 kph, the bike travelled off the carriageway, and finished up in or near a concrete drainage channel to the east. It was also common ground that the damage which it suffered, including scraping to the bodywork in the vicinity of the crankcase, a dent in the fuel tank, and distortion or disruption of the pillion seat assembly, was all occasioned to the left-hand side.

6 There was evidence to show that the respondent had said to a resident, Mrs Convery, who had gone to his aid at the scene, that "I lost it on the dirt, I lost it on the gravel".

7 When interviewed by police at the Gosford District Hospital, on 19 March 1998, the respondent stated that he had no recollection of the circumstances giving rise to the accident. Subsequently, he claimed to have begun to recall the events, and on 12 April 1998 he gave a statement to Senior Constable Thornton to the effect that:

"... I was in the left hand wheel track on the road. I got about one-third of the way into the corner and I felt I got hit at the back and the back lifted and the back wheel slipped out about a foot 18 inches to the left. I compensated by turning the handlebars a little bit that's when the bike left the road. I saw the drainage ditch coming. I was under brakes then I hit the ditch and everything blacked out until I was in intensive care."

8 Similarly, in his evidence in chief, the respondent said:

"I approached the bend in the left hand wheel track of my lane, I started to lean the bike over to the corner, I got maybe, I don't know, maybe a quarter of the way into the corner and felt an impact on my back wheel of the motorcycle. The cycle was facing too far through the corner too early because of the car pushing me on a more of an angle which made me have to go for the brakes and stand the bike up and then I ran out of road, the rear wheel locked up in the gravel and then I went down in the ditch...
Q. ...when you felt the impact... what did the cycle do?
A. ...The cycle seemed to get a little bit light in the back end and go to the left to the side of the road.

Q. Is that when you applied your brakes?
A. Yes.

Q. What happened then?
A. I ran out of road.
...

Q. By that what do you mean?
A. I had to stand the bike up so I could get on the brakes and because I was already pointing to the middle of the road I had to counter steer the bike back to the centre before I could do anything, pick it up, brake, because I was going to the wrong side of the road."

9 The clear implication from this evidence is that the accident arose as a result of the fault of the first appellant, in striking the rear of the respondent's motorcycle. Had the accident occurred in this way then clearly the first appellant would have been responsible in law for the respondent's injuries, by reason of having negligently failed to maintain a safe separation between their vehicles.

10 The first appellant however denied that his vehicle had, at any stage, made contact with the motorcycle. At the trial he gave the following evidence:

"Q. What precisely occurred as you got to the corner?
A. Phillip proceeded to brake early-ish for the corner which then caused me to brake earlier and then I tended to hold my brakes while Phillip pulled away from me into the corner and then he got to that spot I just indicated on the photo and the bike seemed to just -- stood up and went straight ahead.

Q. When you say it just stood up and went straight ahead can you describe the actions?
A. Well he was mid lent over on the bike for the mid corner -- --

Q. You are indicating with your body leaning to your right --
A. He had his body leaning over and the bike lean over and then he got to just that point on the road and it's like the bike stood up and instead of going around the corner just proceeded straight ahead.

Q. You were demonstrating with your shoulders then leaning to your right --
A. Mm.

Q. -- and then you demonstrated your body being upright --
A. Yes, where he stood back up straight and he was on a curvature to his right and the bike sort of stood up and then proceeded in a direct - straight ahead of off the road."

11 In the statement, which he gave to police, on 14 March 1998, at the Gosford Hospital, the first appellant had similarly said, “He just seemed to be committed to the corner then he just seemed to straighten up and then went wide off the road and into the gutter, the concrete ditch.”

12 The issue for determination, which was as simple as it was stark, was resolved in favour of the respondent, it being held that the accident occurred when the motorcycle was struck from the rear by the vehicle driven by the first appellant. It is now submitted that there was appellable error, in the way that the evidence concerning the cause of the accident was evaluated; and in particular, in the assessment of the trial judge that the opinion of the expert tendered by the respondent should be accepted, while that of the expert tendered by the appellants, had been undermined, and should not be accepted.

13 There were two experts whose reports were tendered: Mr Griffiths, who was qualified by the respondent, and Mr Keramidas, who was qualified by the appellants. Only Mr Keramidas gave evidence.

14 Mr Griffiths’ opinion, as her Honour noted, was recorded in two reports, dated respectively 3 August 1998 and 18 November 1999. These assumed the existence of the critical issue, namely, that the vehicle driven by the first appellant had made impact with the motorcycle, causing it to become unstable, resulting in its loss of control and fall to the roadway, on its left side. His opinion is encapsulated in the following passage in his second report:

“Motorcycles require skill by the rider to remain upright. This is particularly so whilst cornering, where the rider must maintain the correct combination of steering input, angle of lean of the bike, and traction to maintain balance of forces and keep the bike upright through the corner. An impact from the rear, of the nature consistent with the mark on the bumper bar of the white Commodore, could be sufficient to cause the motorcycle to lose control, and fall to its left side. This is because the impact with the car would most probably tend to push the bike towards an upright position, which would then cause it to fall over to the outside of the bend, onto its left side.

Motorcyclists called this "high siding". It is relatively uncommon, compared to the alternative, and it appears it most usually occurs as a result of interaction with another vehicle. It is sometimes seen in competitive motorbike racing.

The most common cause of bikes falling over is when the wheels lose grip with the road surface through excessive braking. When this occurs, the tyres slide out from underneath the bike, so that the bike falls over in the direction towards which it is leaning.

In this case, if the bike had lost traction through excessive braking (or, for that matter, excessive acceleration), the bike would have fallen to the right, because it was leaning to the right to go around the right hand bend.

A fall to the right would have resulted in visible damage to the right side of the bike, whereas, in this case, the scraping style damage was visible on the bike’s left side.

In summary, the damage on the bike’s left side, and the absence of damage on the bike’s right side, is conclusive scientific evidence that the bike fell on its right (sic, presumably the author of the report meant “left”) side. This means that the bike "high sided", and fell over away from its direction of lean. This kind of fall most commonly results from an impact with another vehicle, and is not consistent with a more common simple fall to the roadway from a loss of traction.

If the bike had simply lost traction through excessive braking, the tyres would have slid out from underneath the bike, to the left, causing the bike to fall onto its right side, which would normally receive some scraping damage from the road surface. However, in this case, the scraping style damage was on the bike’s left side, which is not consistent with a simple fall to the road surface from loss of traction."

15 It is evident from this report that he relied, in support of the assumption as to a rear end impact, upon some photographs, which had been taken 8 to 10 weeks later, of the front nearside corner of the Holden Commodore, which he understood had showed a “black” scuff mark.

16 That mark, the respondent said in his evidence, had been noticed by him when he went to the first appellant's home, with his father, following his discharge from hospital, that is, about three weeks after the accident, to collect his belongings. His father, who was called as a witness, did not provide any support for this observation.

17 The first appellant denied in his evidence, that he had ever seen any black mark on the Holden, and Senior Constable Thornton, who had examined the vehicle on 20 May 1998, also made no recorded observation of its presence. The explanation for some green marks, which did appear in a photograph, which was taken by the respondent, the second appellant opined, may have been due to contact with a green Otto bin or with the green gate to his father's property.

18 Mr Keramidas also provided two reports, dated respectively 3 September 2001 and 7 September 2001, the second of which followed upon an inspection of the accident site. In each report reference was made to the existence of an area of patching, which was understood by the witness to have been present in the vicinity where the loss of control occurred, and which involved a dip at the interface between the normal road surface and the patched area.

19 Although Mr Keramidas did not disagree, in general terms, with the proposition that a rear end impact could cause a motorcycle to "high side", or with the proposition that a motorcycle would be likely to fall on its right side, if it experienced a loss of traction, he disagreed with Mr Griffiths’ opinion. Rather, he offered the opinion that the respondent had lost traction on the rear tyre, either through riding over the dip in the road, or through contact with loose gravel, or through a combination of both, and that the damage to the left-hand side of the bike occurred when, after leaving the pavement, and while travelling across the shoulder, grass and concrete drain or channel, it cart wheeled and came to a rest.

20 The reasons for this, he said in his first report, were as follows:

"The main inconsistencies with the alleged contact between the two vehicles are:

A. The lack of contact markings on either vehicle.

The plaintiff indicates that no white paint was noticed on his motorcycle when seen by him after the incident.
There were no tyre scuff marks noted on the front bumper bar of the Holden after the incident. The scuffing that was noted was of a dark green colour on the front, near the nearside edge. Apart from the colour difference between the colour of the scuffing and the colour of the motorcycle’s body, the location of the marks and horizontal orientation of the marks preclude them having been made by the motorcycle.

B. The first loss of stability of the motorcycle.

The plaintiff describes his first indication of something being wrong as the rear wheel lifting. Had contact been made between the Holden and his rear tyre, the effect would have been to lock or slow the rear wheel, causing the front to lift, not the rear.
This lifting of the front would have occurred regardless of how low the impact speed between the two vehicles was, with only the extent of the lift being in question.

C. The motion of the motorcycle after it became unstable.

Had contact between the two vehicles occurred, the expected dynamics on the motorcycle would have been from the front wheel lifting causing the motorcycle to "high-side". That is, the motorcycle while on a lean to its left (sic – presumably he meant “right”) would have been violently flipped to its right (sic, again it is clear that he meant “left”). It is clear from both the Plaintiff and Defendant that this did not occur and that the motorcycle only straightened up [as opposed to flipping] as a consequence of the Plaintiff's attempt to regain control.


The most likely cause of the loss of control would have been a loss of traction by the rear tyre. The cause of the loss of traction cannot be determined definitively, although based on the plaintiff's description [and supported by the defendant’s observations], it is likely to have occurred as the motorcycle traversed the point where the "normal" seal met the "patched" surface. If as indicated in the Defendant’s statement, there was a slight dip in the roadway at that point, it is likely that the dip initiated the slip of the rear tyre.”

21 Of obvious importance for his opinion was the evidence, which came from both the first appellant and from the respondent, to the effect that the bike was ridden in an upright condition for some distance while braking was applied, rather than being immediately, and violently, “flipped” or "high sided".

22 He also made some reference to the fact that, if the front brakes had not been operating as the first appellant said, but as the respondent denied, then this could also have had a contributing effect, in reducing the rate of braking and distance over which the bike may have travelled before being brought under control, or otherwise of reducing the impact speed.

23 His subsequent report, which followed an inspection of the accident site, albeit three and a half years after the event, encapsulated his findings, and opinion, as follows:

"The area of patching which was reported to have a dip in it was located and found to consist of:
1. A path length of about 7.6 metres running angled across the full width of the roadway. The patching is consistent with the introduction/replacement of a large diameter pipe under the roadway. The patching is also in a line near to where culvert ends exist on the shoulders of the roadway.

2. In the northernmost 3 metres of the patched roadway [being the first part traversed by the motorcycle], it was noted that a shallow crest vertical curve [hump] had developed within the area of patching, followed by a shallow sag [depression].

3. The existence of the crest followed by the sag combine to create an area of instability for vehicles traversing that section of roadway. A series of test runs were carried out by the author in a car, travelling south along the bend from 50 to 70 km/h and a pronounced "lifting" was noted on the vehicle’s suspension system.

4. The "hump" is considered to be too wide for the height variation to be "absorbed" by the motorcycle’s shock absorption system.

5. There was also an amount of loose gravel noted at the site in the vicinity of the bend although the traffic wheel paths were clear.

Based on the author’s inspection of the site, it is quite possible that the defect in the roadway may have precipitated a partial loss of traction at a critical point on the bend, resulting in sideslip being generated on the motorcycle.

The existence of the "hump" adequately explains the dynamics described by both the Plaintiff and Defendant in this matter.

The opinions expressed in the author’s original report remain unchanged although a higher probability can be attached to the momentary slip caused by the road surface irregularity as a result of the site inspection."

24 The position of the defect or dip which he considered may have been the precipitating cause of the accident was marked on a plan which he had prepared, which also showed a further area of patching to the north. The southernmost patch is shown on this plan to have been located almost directly opposite the dirt road which joined the carriageway at the apex to the bend.

25 Mr Keramidas was cross-examined as to whether he was able to determine whether the patching on the roadway had been in the same state, at the time of the accident, as it had been at the time of his inspection. He conceded that he could not know of its precise condition at the earlier point in time, although he was firm that the patching and adjacent road surface were more than three and a half years old, by reason of the signs of traffic polish and wear.

26 He adhered to the opinion expressed in his reports without any qualification thereto, for the reasons which he explained at some length, reiterating that the dynamics of a rear wheel impact would have been totally different from those which would have been involved had the incident developed in the way in which it had been described by the respondent and the first appellant.

27 The existence of a patched area which went right across the road, and had covered over a trench, was confirmed in the evidence which the respondent had given, it being his recollection that there were two such patches, one to the north of the bend and one in the area described by Mr Keramidas. He marked those areas on Photograph A2

28 Senior Constable Thornton, who had given evidence in an earlier trial, but had died by the time of the present trial, had made reference to the existence of a trench, which he had placed to the north of the apex of the bend. He had said, at the aborted trial, that he had not regarded that trench as having played any part in the accident. His agreement, in cross-examination, that he had not noticed anything in the roadway that would have constituted a hazard to a motor cyclist, was given in the context of questions put in relation to that trench.

29 Of more significance for the present trial, was his evidence that the camber of the bend was “somewhat level…probably negative”, which he explained could have the effect of taking a vehicle off to the left. Additionally, he had said that he had arrived at the scene 20 minutes after the accident, and had seen a single tyre mark in the gravel, on the eastern side of the road, in an area 15 to 20 metres south east of the intersection with the dirt road. While there is a possibility that this tyre mark could have been created by another vehicle, its location would appear to almost precisely coincide with Mr Keramidas’ reconstruction of the path taken by the respondent’s motorcycle, as it left the road.

30 The respondent said, in his evidence, that the point where he had felt the impact with his rear wheel, which he assumed, had come from the motor vehicle driven by the first appellant, was located about ten to fifteen metres north of the intersection with the dirt road to the left of the carriageway. He also said that he had left the roadway at a point, five to eight metres to the south of the intersection, and had ended up in the ditch. As noted later, the trial Judge found that he had been in error in this latter respect.

31 The trial judge recited the evidence, which I have summarised, in a way which was balanced and unexceptional, save for the finding that the "black" scuff mark had been photographed by the respondent on about 5 April 1998, or about three weeks after the accident. Although he did say, in chief, that he had seen a black scuff mark on the bumper, at about that time, this being the occasion of his visit to the first appellant’s home on the day of his discharge from the hospital, the photographs, he said, were taken two or two and a half months after the accident (TT. 21).

32 Having summarised the evidence, her Honour announced her findings and the reasons therefor. She stated that the first appellant had not impressed her as a witness, for the reasons which may be briefly summarised as follows:

a) neither he or his father had cooperated with the police "in terms of any further investigation of the accident";
b) there was some uncertainty as to the status of his drivers licence at the time of the accident, at best it being provisional;
c) he had not waited for the police to arrive at the scene of the accident;
d) he had denied going home after the accident or changing cars before returning to the hospital to check on the respondent’s condition (there being, however, no evidence to suggest that he had done either of these things);
e) he had denied telling the respondent in hospital that the accident had occurred when the bike had struck a pothole;
f) there were discrepancies in the detail of the evidence which had been given by him, and by Ms Stone, concerning a conversation at the hospital, in the course of which he alleged that the respondent had sought his participation in a scheme which had been floated by Wayne Ray and which would have permitted a fraudulent claim to be advanced in relation to the accident (attributing the blame to himself) and that;
g) it was highly improbable that a person with the respondent’s experience would have ridden a motorcycle, on that section of roadway, at a speed of between 70 to 75 kph, without a front brake, as the first appellant had asserted.

33 Having dismissed the first appellant as a witness of credit, the learned trial Judge then made a finding that the respondent "presented as a more credible witness", notwithstanding that he had been "clearly sketchy on the details of the accident", and “wrong” about the point where he had come off the road, that being closer to the position alleged on behalf of the appellants, that is, 20 to 30 metres south of the intersection with the dirt road.

34 So far as can be ascertained from the reasons, the matters which tilted the balance in the respondent's favour, and which led the trial judge to find that Mr Keramidas’ opinion had been “undermined”, while “weight had been added to” Mr Griffith’s hypothesis, were that:

a) the respondent had volunteered himself to have been travelling at a speed which he believed to have been in breach of the speed limit;
b) the photograph, which she wrongly found to have been taken on about 5 April 1998, or about three weeks after the accident, showed a “black” scuff mark on the front bumper bar of the Holden (whereas the only marks shown on the photographs tendered were green in colour);
c) Senior Constable Thornton had noticed “nothing adverse in the road conditions” to explain why the respondent had run off the road (something of an overstatement, since his answers concerning this topic were directed only to the northern trench or patch);
d) Mr Keramidas’ investigations of the site had been undertaken three and a half years after the accident, and the “misinformation” which she understood had been given to him, to the effect that the incident had occurred within one or two months of repairs having been made to the road (but which in fact played no part in his reasoning), had led to an unreliability as to the extent of the subsidence or dip which he had measured;
e) the first appellant, when, speaking to the respondent’s parents after the accident, had told them that the respondent had “straightened up and then flipped over”, and also that “the motorcycle had flipped over end to end”;
f) the respondent had said to Ms Convery that he had “lost it in the gravel”; and that
g) the damage to the motorcycle had been occasioned to its left hand side.

35 The grounds of appeal, in respect of which leave to appeal has been granted, substantially overlap one another. In essence, the appellant asserts that the learned trial judge failed to properly evaluate the competing expert evidence, erred in preferring the opinion of Mr Griffiths to that of Mr Keramidas, and erred in disregarding the concurrence in the evidence given by the respondent, and by the first appellant, to the effect that the motor bike had straightened up and that the respondent had continued to ride it in an upright position, before leaving the roadway.

36 I have some difficulty in understanding why the matters, which her Honour identified as adversely affecting the first appellant’s credibility, and as reinforcing that of the respondent, should have had either effect, but as I do not consider the case to be one depending upon the credibility of either, it is unnecessary to explore that question any further.

37 No report, or evidence, was tendered from Mr Griffiths that dealt with the alternative hypothesis which Mr Keramidas had raised, or with the factors which he had identified as contradictory of the rear end impact hypothesis. Additionally it was the case that Mr Griffiths had not inspected the site, and had not taken into account the presence of patching or gravel, the fact of negative camber, the existence of a tyre track in the gravel, or the possibility of the left sided damage having been due to impact not with the road, but with the area to the east of it, including the concrete channel which did show evidence of gouge and scrape marks. Nor had he addressed the evidence from the respondent, and the first appellant, to the effect that the motorcycle had been straightened up and ridden for some distance before crashing, after encountering whatever it was that had interrupted its smooth passage through the bend.

38 The point of Mr Keramidas’ evidence was that Mr Griffiths’ assumption of the respondent having been “high sided” after being struck from the rear, simply did not fit in with the account of the events, which had been given by both the respondent and by the first appellant.

39 What does appear from the judgment, leaving aside the credit findings, which may have occasioned a difficulty for the appellants, had the case turned upon credibility (Abalos v Australian Postal Commission (1990) 171 CLR 167, Devries v Australian National Railways Commission (1993) 177 CLR 472) is that the learned trial judge effectively discounted the evidence of the respondent and of the first appellant, and contrary to their version of events, found that the motorcycle had “flipped” while it was still on the roadway. That she considered as being consistent only with a rear end impact coming from the vehicle driven by the first appellant.

40 For this she relied upon the evidence of the respondent’s parents, and upon the cross-examination of the first appellant concerning a conversation with them at the hospital. As this appears to have been the key for her Honour’s decision, it is important to note exactly what they did say, about this conversation.

41 The evidence of Mr Crawley senior concerning it is encapsulated in the following passages:

“Q. Are you able to give us that conversation, what you said, what he said, what your wife said, as if it was happening now?
...
A. My wife I think it was asked him in the first place, asked him what happened and he said he came round the corner behind Philip and Philip was leaning into the corner and he said it was if he decided not to take the corner, he straightened the bike up and just flipped over .
...

QUICKENDEN: Q. Was that all that was said at that point about what happened by the first defendant?
A. At that stage, yeah.
Q. Was their something said later?
A. There was something else said a bit later. We were talking and he said I came around the corner and saw the bike flipping end over end and Philip rolling along the road beside it .
...
Q. Was there anything else said that the time?
A. A little while later we were still talking and he said I don't know, he said I came round the corner behind Philip and he hit the brakes hard that I nearly ran up the back of him. “

42 Mrs Crawley's evidence was to the following effect:

“Q. Can you recall what you said and what Mr Darren Ross-Sampson said?
A. When I saw Darren I said what happened.

…
Q. What did he say?
A. He said Phil was leaning into the corner and he seemed to get sick of leaning into the corner and he sat up too soon and he flipped off .
Q. Was that all that all that was said at that time by him?
A. Well I asked him then what made him flip off.

Q. What did he say?
A. I don’t really remember, just he said he just flipped off.
...
Q. Was something said later?
A. Yes.
Q. Again, can you give the conversation as if it is happening now?
A. Well I kept asking him because I wasn't clear, that didn't make sense to me so I kept asking him what happened, tell me again.
Q. What did he say the second time?
A. He said well I come around the corner and he was flipping off beside his bike, his bike was flipping around and he was beside it flipping over .
Q. Was there anything else said at that time?
A. Yeah, a little bit later on he said he - Philip slowed down so much that he, Darren, had to brake hard to stop going up the back of him.
Q. Anything else said?
A. Pertaining to the accident, well he just kept repeating this flipping over thing most of the hours we were there."

43 These matters were taken up with the first appellant in cross-examination, following his agreement that he had spoken to the respondent's parents at the hospital, in the following passages:

"Q. And you first said ‘he came around the corner, I was behind him, he was leaning into the corner and it was as if he decided not to take the corner, he straightened up and the bike flipped over ’?
A. Yes.

Q. You were there for sometime with Mr and Mrs Crawley, were you not?
A. Approximately about an hour or so.

Q. And you said this to them after you said what you’ve just agreed you said, ‘I came around the corner and saw the bike flipping over him and Phillip flipped over with the bike ’.
A. Yes.

Q. And you further said later ‘I came around the corner, he hit the brakes hard and I nearly ran up the back of him".
A. No, that's not correct."

44 It may be observed that nowhere in these exchanges was it shown that the first appellant had acknowledged having, in fact, struck the rear of the motorcycle. What, however, is important is that, in each version, the first appellant was recorded as having said, or admitted having said, that the bike had “straightened up”, or that the respondent had “sat up”, before the flipping occurred. Moreover there was no clear exploration with the first appellant as to whether the flipping, which he recalled observing, had occurred on the roadway or off the carriageway in the gravel area. While the former might have provided some support for the respondent's case, the latter would not, that is, if there was an intervening period where the motorcycle was being ridden in an upright position.

45 What is clear from the report of each expert is that a rear impact occasioning high siding of a motorcycle, occurring while negotiating a bend to the right, would involve an immediate and violent flipping of the cycle to the left. There would be no opportunity for the vehicle to be straightened and ridden out, as the respondent and first appellant described.

46 Even assuming the conversations to have occurred in the terms most favourable to the appellant, they do not appear to me to have provided any proper basis for the finding that was made as to the cause of the accident, or for dismissing the opinion of Mr Keramidas, let alone for setting aside, and effectively ignoring, the concurrent accounts which had been given by the respondent and by the first appellant.

47 The following matters add weight to the circumstance that the learned trial Judge failed properly to evaluate the evidence, or to reach a finding, on the critical issue, that was properly based on the available evidence:

(a) The error in the factual finding concerning the date on which the respondent had photographed the scuff mark on the Holden; a matter of some significance, when added to that error, are the circumstances that:

(i) neither Senior Constable Thornton or the respondent’s father had seen any such mark when they examined the vehicle;
(ii) the photographs which were taken, show not a black mark, but green marks which are clearly not consistent, by reason of their colour and shape, with an impact with the rear tyre of the motorcycle;


(b) There was an apparent failure to take into account the evidence in relation to the negative camber, and the presence of a single wheel track in the gravel to the eastern side of the roadway, a circumstance which was more consistent with the evidence of the respondent, and of Mrs Convery, to the effect that, having straightened the cycle and ridden it across the road under brakes, the respondent "lost" it when the wheels locked in the gravel, at a time when it was still upright;

(c) There was a failure to account for the reported sensation of a rear wheel lift, when the uncontradicted evidence of Mr Keramidas showed such a sensation to be inconsistent with a rear wheel impact;

(d) Inappropriate weight was given to the circumstance that the only damage to the motorcycle was occasioned to the left side;

(e) There was a failure to consider the possibility that the damage to the motorcycle had been occasioned when it struck the area in the vicinity of the drainage channel or to give any weight to the presence of gouge or scrape marks in that channel;

(f) No consideration was given to the absence of any evidence of debris or paint scrapings or markings being left on the roadway that might have suggested that it had "flipped" or hit the surface there, as distinct from coming down off the roadway;

(h) Insufficient attention was given to the presence, on the road, of a patch and dip, in a place, and of a kind that, consistently with Mr Keramidas uncontradicted report, could have precipitated the very kind of accident which occurred.

48 The difficulty, as I see it, in relation to the evidence of Mr Griffiths, upon which the trial Judge ultimately relied, is twofold. First, there is the circumstance that the respondent, having been served with the expert opinions of Mr Keramidas, chose not to respond to them, giving rise to an inference that any further evidence from him would not have assisted the respondent's case. Secondly, having assumed as a fact that there had been a rear end impact, his opinion did little more than assert that "high siding" could be caused by such an event. That an impact of this kind can cause "high siding" was not in issue. What Mr Keramidas explored, but which Mr Griffiths did not explore, were the actual facts of this case, as exposed through the witness statements and evidence, for the purpose of seeing whether they were, or were not, consistent with "high siding" due to a rear end impact.

49 When these considerations are taken into account there was in my view no proper basis for her Honour to have disregarded the evidence which had been given by the first appellant, and by the respondent, as to the circumstances in which the accident occurred, or to have rejected the opinion of Mr Keramidas.

50 Had a proper evaluation of the evidence been undertaken, it could not, in my view, have supported the findings which were made. In short, the available evidence was insufficient to establish upon a balance of probabilities any breach of the duty of care owed by the first appellant. There should not have been a finding on the issue of liability in favour of the plaintiff/respondent.

51 I am accordingly of the view that:

1. The appeal should be allowed and the judgment in favour of the plaintiff, for damages to be assessed, set aside;
2. There should be judgment entered for the defendants;
3. The respondent should pay the appellants’ costs of the proceedings and of the appeal, and should have a certificate under the Suitors Fund Act .
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Last Modified: 03/19/2004