Semmens v The Nominal Defendant
[2001] QSC 511
•16 October 2001
SUPREME COURT OF QUEENSLAND
CITATION: Semmens v The Nominal Defendant [2001] QSC 511 PARTIES: MALCOLM TROY SEMMENS
(Plaintiff)
v
THE NOMINAL DEFENDANT
(Defendant)FILE NO/S: Claim No. 164 of 2000 DIVISION: Trial PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Cairns DELIVERED ON: 16 October 2001 DELIVERED AT: Cairns HEARING DATE: 6 June 2001 JUDGE: Jones J ORDER: 1. Judgment for the Plaintiff against the Defendant in the sum of $1.4 million dollars. CATCHWORDS: TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PROOF OF NEGLIGENCE – ROAD ACCIDENT CASES – causation – where plaintiff motorcyclist rendered paraplegic in accident – where plaintiff holder of learner’s permit – where plaintiff alleges accident caused by unidentified vehicle – where defendant submits plaintiff contributorily negligent – where no direct evidence of negligence on part of unidentified vehicle – where no direct evidence of contributory negligence on part of plaintiff
DAMAGES – where damages agreed between parties prior to trial – where only liability in issue at trial
EVIDENCE – ADMISSABILITY AND RELEVANCY – whether statement made by plaintiff to ambulance officer in ambulance admissible – where statement contravenes hearsay rule – whether statement falls within res gestae exception – whether statement contemporaneous
EVIDENCE – GENERAL – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – where discrepancies between witnesses as to nature of wheel marks allegedly left by plaintiff’s motorcycle in gravel verge of roadway – where road had been resealed and any marks obliterated prior to completion of engineers’ reports
EVIDENCE – standard of proof – balance of probabilities
March v E & MH Stramore Pty Ltd (1991) 171 CLR 506, considered
Pollit v The Queen (1991-2) 174 CLR 558, considered
Ratten v The Queen (1972) AC 387, considered
Sydney Electricity v Giles (1993) NSWCCR 700, considered
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345, considered
Vocisano v Vocisano (1974) 136 CLR 267, considered
Walton v The Queen (1989) 166 CLR 283, consideredCOUNSEL: RM Stenson for the Plaintiff
MM Stewart SC for the DefendantSOLICITORS: Murphy Schmidt for the Plaintiff
Biggs & Biggs Lawyers for the Defendant
JONES J.
The plaintiff was born on 12 July, 1975 and is now 26 years old. On 20 February, 1993, when aged 17 years, he sustained injuries when the motorcycle he was riding northward along the Cook Highway left the roadway and crashed into a culvert. As a result of these injuries he has been rendered paraplegic. The quantum of damages for the plaintiff’s loss as a consequence of these injuries is agreed at $1.4 million.
By his Statement of Claim he alleges that he was forced to take evasive action to avoid another vehicle which remains unidentified. Therefore he sues the Nominal Defendant in respect of the incident. It is alleged that the driver of this unidentified vehicle was driving on the wrong side of the road, driving too fast and without due care and without keeping a proper lookout.
The Nominal Defendant admits that a due search and inquiry had been undertaken in satisfaction of the statutory provisions but contests that the plaintiff was forced off the road by the negligence of the driver of another vehicle. Rather, it alleges that the incident was caused by the plaintiff riding at an excessive speed and by his failure to maintain control due to lack of competence and experience. These allegations are made both to explain the incident and as grounds for contributory negligence.
Background facts
At the time of the incident the plaintiff was the holder of a motorcycle learner’s permit which he had for approximately six months. Therefore, he was required to ride in the company of a holder of an open motorcycle licence. At the relevant time he was accompanied by his sister Kristyn Lisa Semmens who is, throughout the evidence, identified by the name “Kristy”. Kristy was 20 years old at the time and the holder of an open licence.
The plaintiff’s family had a long association with the handling of motorcycles. The plaintiff’s father had been involved in the riding, racing and repair of motorcycles over many years. The plaintiff’s mother was an experienced motorcycle rider and in fact owned and regularly rode the 250 cc motorcycle which was being used by Kristy at the time of the incident. Kristy owned the Kawasaki KLR 250 trail bike which the plaintiff was riding at the time of the incident.
Both the plaintiff and Kristy had ridden motorcycles since the age of 6 or 7 years during school holidays on a farm property owned by their uncle.
The plaintiff’s experience riding on public roadways and on bitumen surfaces commenced when he obtained his learner’s permit, approximately six months before the accident. Thereafter, he rode a motorcycle virtually on a daily basis accompanied by either his mother or Kristy. This involved riding around suburban Cairns but on another occasion taking a longer journey, to the Atherton Tablelands. In her evidence Kristy spoke of a protocol observed when she and the plaintiff were riding together to the effect that if he were left behind, for example at a set of lights, or if he lost sight of her as lead rider, he was to pull over to the side of the road and she would come back and collect him[1].
[1]Transcript 159/20
On the day in question, a Sunday afternoon, the plaintiff and Kristy intended to ride together from Cairns to Port Douglas and return. As mentioned, the plaintiff was riding Kristy’s trail bike which has been fitted with suitable road tyres and Kristy was riding her mother’s 250 cc motorcycle. They rode without incident to a point on the Cook Highway called Rex Lookout. During the journey, as was their practice, they had alternated between them being the lead motorcyclist from time to time. When they left the Rex Lookout where they had stopped for a few minutes, Kristy took the lead with the plaintiff following.
The road in this particular part of the Cook Highway is cut between the ocean shoreline and the hills to the west. Between the Rex Lookout and the Turtle Cove Resort, some four kilometres to the north, the road consists of a number of curves, some of which are quite tight. The speed limit generally in the area is 80 kilometres per hour though there are, in some places, speed control signs which change that limit. There are also speed advisory signs in other areas.
As Kristy was negotiating various curves she temporarily lost sight of the plaintiff’s motorcycle in her rear vision mirror. From a point approximately two kilometres north of the Rex Lookout she lost sight of the plaintiff completely. When she reached a straight section of the roadway, just beyond the Turtle Cove Resort, she pulled over to wait for the plaintiff. When he did not turn up after a period of time which she estimated to be 10 minutes, she retraced her steps believing that he may have encountered some mechanical problem or otherwise, in accordance with their agreed protocol, had become separated from her such that he needed to pull over and wait. In her retracing of her path she caught no sign of the plaintiff between the Turtle Cove Resort and the Rex Lookout. She then rode north again paying attention to any side roads where the plaintiff may have waited for her which she might have missed when retracing her steps. She travelled a short distance beyond the Turtle Cove Resort to Oak Beach without having seen the plaintiff. She repeated this exercise again travelling to the Rex Lookout and back to Turtle Cove Resort. She then raised the alarm by phoning her relatives in Cairns to make inquiries as to whether the plaintiff had returned to Cairns and if not, to seek assistance in the search. She also arranged for the police to be notified.
The plaintiff was found by his parents. He was lying in the culvert with his motorcycle lying on top of him. His position was indicated in photographs taken a few weeks after the incident.[2] Needless to say, his parents’ immediate concern was to seek assistance for their son rather than to make any examination of the scene. The plaintiff once stabilised and extracted from the culvert was taken to the Cairns Base Hospital and then transferred to Brisbane for urgent treatment. His parents accompanied him to Brisbane.
Admissibility of hearsay statement
[2]Ex.18 – Photo 8b – Transcript 33/38
The question of admissibility of certain evidence was reserved for my consideration at the conclusion of the trial. The evidence was a statement made by the plaintiff to Mr. McMahon, the ambulance officer, in the back of the ambulance vehicle on the journey from the accident scene to the hospital. The statement was made as part of the questioning by the plaintiff, the terms of which and the recorded answers are as follows:-
“I said to him (the patient) “did you lose control, did lights coming the other way blind you, were you hit by another car”.
The patient replied back, “I think I was hit by a car and lost control”.[3]
[3]Ex. 19
The statement is obviously hearsay and can be admitted into evidence only if it falls within the exception conventionally referred to as “the res gestae exception”. The principles relevant to the application of this exception have been identified in a number of cases.[4]
[4]See particularly, Walton v The Queen (1989) 166 CLR 283 and Sydney Electricity v Giles (1993) NSW CCA 700 for an analysis of these
The rationale for the exception was identified in Vocisano[5] where Barwick CJ said:-
“A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable: but that does not mean that statements made on that occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which found admissibility.”
[5]Vocisano v Vocisano (1974) 136 CLR 267
In Pollitt[6] Brennan J (as he then was) observing that Walton confirmed the conditions of admissibility of res gestae evidence as being that stated by Wilberforce in Ratten[7] namely –
“As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.” [8]
[6]Pollitt v The Queen (1991-2) 174 CLR 558;
[7]Ratten v The Queen (1972) AC 387
[8]See Ratten at p.389
More recently in Giles[9] Kirby P reviewed the authorities and concluded that the following rules apply –
[9]Sydney Electricity v Giles (1993) NSW CCR 700
“An out-of-court statement will be admissible as part of the res gestae and hence admissible as capable of proof of that which it asserts, if the statement was made in circumstances ..
1. which are approximately, if not exactly, contemporaneous with the event or transaction the subject of a Court’s inquiry; and
2. which provide an assurance of the proper reliability and veracity of the statement. Such an assurance will ordinarily arise where:
(a) the statement is spontaneous or contemporaneous with the event or transaction the subject of a Court’s inquiry; or
(b) the statement is made by the maker while involved in the event or transaction the subject of a Court’s inquiry.”
In this instance the statement was made at least two and a half hours after the event and in response to a question which might be regarded as suggestive of the answer. It is challenged by the defendant therefore as falling outside the rule. For the plaintiff it was argued that questions of contemporaneity and spontaneity must be looked at in a relevant sense. Mr. Stenson of counsel relied upon the plaintiff’s physical condition which suggested that he may have been unconscious for part of this period or if not, was certainly in a mentally confused state. As a consequence the persons who first attended on the plaintiff, namely the members of his family, were unable to elicit direct responses to their questioning.
Despite these being the circumstances I am not satisfied that the statement made to the ambulance officer can be regarded as contemporaneous with the event. Nor am I satisfied that the way in which the statement was made, namely in response to a suggestive question, provides me with the assurance of reliability for the remark. Too much time had elapsed between the event and the statement and too much questioning undoubtedly went on before the arrival of the ambulance officer at the scene and indeed afterwards prior to the statement being made on the journey to hospital. For these reasons I hold that the evidence does not fall within the res gestae exception and for the purpose of determining the case I exclude this evidence.
The investigation
Mr. Semmens Snr had the opportunity to visit the scene some weeks after the incident. He claims he saw wheel marks in the gravel shoulder in a position which he later indicated to Mr. King, forensic engineer. By the time of Mr. King’s visit, 13 months later, the road had been resealed and the wheel marks obliterated. In his evidence on the first day of the trial he claimed he was there when the photographs, which were tendered, were taken. On the next day he retracted this evidence apparently after being corrected in his recollection by Kristy. On behalf of the defendant it was submitted this made his observation of the wheel marks unreliable.
Mr. Semmens Snr did visit the scene on a number of occasions. I find no reason to doubt the accuracy of his description of the marks he saw. In this, his evidence is consistent with the description given by others. His confusion relates only to the timing of the visits. Whenever it was, Mr. Semmens Snr visited the scene first and noticed “motorbike tyre brake marks, skid marks…visible between the edge of the road and the edge of the culvert, there were still scratch marks in the culvert, bits of bike pieces”[10]. He described the mark as the earth being “rutted”. He described the earth in this area as being “dry, some grass, small rocks, pebbles type thing”[11].
[10]Transcript 32/22
[11]Transcript 34/10
The wheel marks were seen by others who were at the scene that afternoon, namely Mr. Wayne Keevers and the ambulance bearer, Gerard McMahon. They were described also by three other persons who visited the scene within two weeks following the incident, namely Kristy, Mr. Malcolm Pearce and Dr. Rimmer. The marks were not seen by the investigating police officer, Snr Sgt Nolan, who made an inspection of the scene by torchlight that evening after the plaintiff had been removed to hospital and in daylight on the following day. I shall deal specifically with their observations.
Mr. Keevers is the de facto husband of Narelle Barr who is the plaintiff’s aunt. He arrived on the scene soon after the plaintiff had been found. It was still daylight when he arrived. He made the following observation:-
“As we came around the corner I noticed some vehicles parked, I also noticed there was a skid mark going off the side of the road towards – in the direction of the ditch and I commented to Narelle at that time.”[12]
And “…there was a definite mark in the gravel but there was a short distance of, you know, like a black skid mark on the bitumen as well.”[13]
[12]Transcript 91/1
[13]Transcript 91/35
He identified the mark on the bitumen as being approximately 18 inches in length and the skid mark in the gravel of being 3 – 5 metres. He acknowledged that he had difficulty estimating distances and added “the mark was in the gravel, but there was, you know, a defined skid mark in the, you know, right over to the gully”.[14]
[14]Transcript 92/45
Part of the difficulty might be in describing the changing nature of the skid mark which appears to have been a distinct mark “through the gravel” and being less distinct when it passed through the grass, a feature which was commented upon by Kristy Semmens.
By the time Mr. McMahon, the ambulance officer, arrived it was dark. He received the emergency call at 7.00 pm and arrived at the scene at 7.19. He remained at the scene for approximately 20 minutes during which time his attention was focused on treating the plaintiff. In a statement given to solicitors some 15 months after the incident he recalled that there was a substantial skid mark on the road which he presumed came from the plaintiff’s motorcycle.[15] However, at the time of the trial he had no independent recollection of having seen a skid mark at that time.
[15]Ex.21
When Snr Sgt Nolan arrived at the scene he attended firstly to traffic control and then to assisting the extraction of the plaintiff from the culvert. After the departure of the ambulance he said he made an inspection of the general road area by torchlight but failed to discern any marks on the roadway. The next day he searched in daylight in company with Snr Sgt Burgess and failed to “find anything that would be evidence as to how the accident occurred.”[16] He did not see any gouge marks or tyre marks on the roadway. The search not only covered an area to the south of the culvert but also to the north, because he was acting also on an assumption that the plaintiff, having become separated from his sister, turned around and was travelling in a southerly direction. Snr Sgt Nolan also indicated that he had investigated dozens of accidents on this particular section of the Cook Highway and in his experience that some 90 per cent of those he had investigated were single vehicle accidents.
[16]Transcript 130/10
Mr. Keevers claims he drew Sgt Nolan’s attention to the skid marks but Sgt Nolan has no recollection of any such remark nor did he find any such skid mark on the bitumen in either of his inspections. I do not believe this conflict in recollections in anyway affects the reliability of either witness. However, Mr. Keevers’ observation of the mark appears to have been made when there were more pressing demands for the case of the plaintiff. His description of marks is inconsistent with those provided by other witnesses who undertook more detailed and more focussed observations.
The remaining three witnesses, who gave evidence about the presence of wheel marks, described their examination of the roadway late one afternoon when the photographs, which became ex. 18 in the proceedings, were taken. No-one recorded the date on which this inspection occurred but it seems to have been approximately 2 – 3 weeks after the incident. This would coincide with the time when Mr. Semmens Snr returned from Brisbane and when it appears there was some consultation with solicitors leading to an instruction to obtain a photographic record of the scene.
The two witnesses who accompanied Kristy to the scene were experienced photographers. Mr. Pearce who was an extension officer of the Department of Primary Industries and the photographic officer for that department, had undertaken a TAFE course on photography. Dr. Rimmer is a biologist with the Fisheries Section of the Department of Primary Industries. Whilst he was an experienced photographer, his experience was to do with the photographing of fish. Neither of them had any experience as to the forensic photography or indeed even as to the importance of recording the actual mark in the road. Their ‘brief’ as it was described was to photograph the scene in a general way for the purpose of making a record of the area as it then was.[17] In the end result both failed to record by photograph the actual mark on the road which each of them saw at the time and described in their evidence. However, each of them saw a mark on the verge of the roadway leading to the culvert. They “highlighted” the location of this mark with toilet paper so its position could be seen in the photographs.
[17]See transcript 120/25 Pearce; 124/20 (Dr. Rimmer)
Kristy Semmens described the mark as a “skid mark which was an area of exposed gravel running through some greenery, some grass, and it appeared to be approximately the width of a motorcycle or small car tyre”. It appeared “to start close to the edge of the road edge south of the culvert, and it ended, just prior to the culvert dropping in.”[18] Mr. Pearce described the mark as a single tyre mark, “certainly very evident particularly going through heaped blue metal along the side of the road”[19]. Dr. Rimmer described the mark as “a tyre track near the culvert, leading towards the culvert.” He described the mark as “obvious”.[20]
[18]Transcript 155/25-60
[19]Transcript 114/45
[20]Transcript 123/15; 123/40
The evidence of all witnesses who gave evidence about the presence or absence of skid marks have features which impact on its reliability. For those who observed the mark there are some minor differences in the individuals’ description of it. This is particularly so in the evidence of Mr. Keevers about the length of the skid mark. It must be remembered these were not trained observers who set about recording the results of their inspection. There is also the failure on the part of the photographers to take a photograph of the skid mark. This is in part explained by the inadequate instruction given to them and their lack of experience in knowing the level of particularity required by the courts. It might also have arisen from an expectation on their part that their word on these matters would not be challenged. Ultimately I have to determine whether the skid marks in fact existed.
By contrast the search undertaken by police officer, Sgt Nolan, which is in direct conflict with all the other witnesses, is difficult to explain unless it arose from his having started with the assumption that it was a single vehicle incident and simply a case of a motor cyclist running off the road. His comment that 90 per cent of the dozens of accidents which he investigated in this area were of that kind does suggest that there was some element of pre-judgment on his part in this instance. Further, the marks described by others were not distinctive or prominent such as gouge marks or rubber skid marks which would more positively relate to the incident. To a police officer less distinctive marks might not have had the same level of relevance. No recourse was made by Snr Sgt Nolan to any notes he may have made at that time nor did he take any photographs. In short, his investigation of the incident having regard to the seriousness of the plaintiff’s injury was, it seems to me, somewhat perfunctory. He did however agree that the damage to the motorcycle was minor and was suggestive of a low speed fall[21]. There is no evidence as to when Sgt Nolan inspected the damage or whether he, at the time of his inspection at the scene, considered the proposition of the motorcycle leaving the roadway under controlled braking.
[21]Transcript 136/41-60 , T137/28-38
Despite the passage of time between the incident and the visit of relatives to the scene, I accept their evidence that the skid was obvious on their examination and that it was made by the plaintiff’s motorcycle. I regard the evidence of Mr. Pearce and Dr. Rimmer as being valuable independent evidence of the presence of the skid marks. Each of these men held a responsible position in the Department of Primary Industry and having seen them give evidence they did not give me the impression that they would say that they observed skid marks if none existed nor even that they would colour their evidence to support the plaintiff, simply because the plaintiff’s mother was a work colleague of theirs.
I am satisfied that there were marks on the roadway as described by Mr. Semmens Snr, by Kristy and as confirmed by Mr. Pearce and Dr. Rimmer. I prefer their evidence to that of Snr Sgt Nolan who, it seems to me, undertook a rather cursory examination and was looking for marks of a more obvious or serious nature. I note Mr. King’s comment that the type of surface was not particularly receptive to the leaving of wheel tracks which rather suggests that the mark would have been revealed only on close detailed inspection, save perhaps where it proceeded through heaped blue metal near to the bitumen edge. Such a mark would be easily dismissed by a police officer having regard to the possibility of it having been caused by a different vehicle. I am satisfied it was the members of the family and later Mr. Pearce and Mr. Rimmer who made the detailed examination of the area necessary to disclose the presence of the mark. The mark was consistent with the line of travel which the plaintiff’s motorcycle must have taken for it to have ended in its position in the gully. Consequently, it was unlikely to have been caused by any other vehicle. The fact that the inspection by these witnesses occurred some weeks after the incident does not diminish the reliability of their observation or lead to a conclusion that the mark may have been left by some other vehicle.
I find that there was a wheel mark on the shoulder of the roadway commencing adjacent to the bitumen edge and leaving in a relatively straight but slightly curved line to the edge of the culvert. I accept the evidence of Mr. Pearce and Dr. Rimmer that the photographs 2b, 6b, 8a and 12a indicate the line of the skid mark as highlighted by the deliberately placed toilet paper on the ground. I find that the nature of the mark was consistent with the skid mark of a locked motorcycle wheel. There is complete consistency between the witnesses as to the type of wheel that was likely to have left that mark and their comments about its nature and the disturbed grass indicate that the wheel was most probably skidding.
The issue
The parties have agreed that the issue for determination is whether it is more probable than not that a southbound vehicle strayed over the centre line of the highway and thereby caused the plaintiff to leave the highway to end up in the culvert where he suffered his injuries. This determination necessarily depends on what inferences can properly be drawn from the facts and from the acceptance of one or other of the expert opinions based on those facts. The experts, Mr. Ken King and Dr. Frank Grigg – are each highly experienced forensic engineers with particular expertise in motor vehicle accident investigation and vehicle dynamics.
There is a measure of agreement between the parties on some of the circumstances. These are described in the defendant’s submissions as uncontroversial evidence. Save for one circumstance the facts agreed are included in my narrative set out above. The last circumstance concerns the speed at which a motorcyclist could safely negotiate this particular curve. In this regard, the evidence of Snr Sgt Nolan was to the effect that the curve was not particularly sharp[22] and could be negotiated safely at 50-60 kilometres per hour. Dr. Grigg gave evidence of driving the curve at 60 kilometres per hour in a car[23]. A speed of this level would not be excessive for a motorcycle negotiating the bend. This however does not indicate the speed at which the plaintiff’s motorcycle was likely to have been travelling at that time.
[22]Transcript 136/25
[23]Transcript 199/30
There is substantial agreement between the experts on a number of matters. Firstly, they agree upon the key fact which emerges from the examination of the damage done to the motorcycle. Primarily this damage was slight and was confined to the right side fuel tank and forward body structure. This was low impact damage which, according to both experts, was consistent with the motorcycle falling into the culvert on its right side. This leads to a primary finding also that the motorcycle was almost stopped when it reached the culvert.[24] Further, there is no damage to the motorcycle consistent with direct contact by another vehicle or with sliding across the road surface. Both experts agree that there was unlikely to have been any contribution to the loss of control of the motorcycle from the nature of its tyres or from the road surface.
[24]Transcript 166/33
The issue comes down to an interpretation of the tyre marks as I have found them to be based on the observations of Mr Semmens Snr, Kristy and Mr Pearce and Dr. Rimmer. Mr. King’s conclusions from the location of the skid marks as I have them to be, is that it constitutes a relatively straight tangential departure from the outside of the roadway curve. This in his view is consistent with a typical avoidance manoeuvre[25]. In cross-examination he described as a “deliberate leaving of the road without an attempt to regain the road”.[26]
[25]See ex.13 at p.5
[26]Transcript 188/45
From the nature of the skid mark Mr. King draws the conclusion that there was locked wheel braking with the motorcycle in an upright position. This suggests rear wheel braking which produced a skid mark. Front wheel locking in these circumstances would have produced a slide or a fall. Similarly, if the skid mark was not in a straight line the motorcycle would not remain upright.[27]
[27]Transcript 170/15
Mr. King argues that if the loss of control had been due to speed it would “usually result in excessive leaning of the motorcycle at the inside of the curve and, as the rider attempts to tighten the radius and counter the centrifugal force”.[28] He continues-
“The motorcycle is unlikely to be upright in these situations and if it runs wide onto a low grip verge while at a sufficient angle, lateral grip of the wheels may result with the motorcycle falling to its right (for a right hand curve) or the rider possibly being high-sided if steering is eased and the sideways sliding will retain its grip. In any event, the length of the tyre mark and the relatively low verge entrance speed calculated indicate that cornering speed could only be described as moderate and not excessive. The tyre mark appeared to be tangential to a point halfway through the curve but not tangential to the approach to the curve; that is, part of the curve appeared to have been negotiated prior to the motorcycle running onto the verge. Partial curve negotiation is not indicative of a motorcyclist attempting to negotiate the curve “with due attention”.[29]
[28]Ex. 13 p.10
[29]Ex. 13 p.11
This remark indicates that the motorcyclist was already set up to take the curve and had partially negotiated it before there was a change in the direction leading to the tangential deviation to the expected line of travel.
On the question of speed Mr. King undertook calculations based on standard decelerations over the distance between the edge of the road and the culvert. He concluded that if there were no braking such as to create the tyre marks, travel across the road verge would have been extremely slow. In such an event the fall into the culvert would have been easily averted. Applying his calculations Mr. King thought the entrance speed of the motorcycle onto the verge was of the order of “50 kilometres per hour”.[30] This estimate was agreed to by Dr. Grigg based on acceptance of the location and length of the skid mark.[31] In any event I accept the thrust of Mr. King’s evidence that the loss of control of the motorcycle was not due to speed.[32] I accept also that the loss of control was not due to inattention given the fact that the plaintiff had already partially negotiated the curve. Had there been lack of attention, the consequences would have been evident nearer to the start of the curve.[33] It was put to Mr. King that the plaintiff’s leaving of the roadway could be simply a matter of misjudgment of the corner without the intervention of any other vehicle. Mr. King’s response to that was that would not usually happen “at such a low speed, nor at such a position on the corner”.[34]
[30]Transcript 164 line 20
[31]Transcript 199/58
[32]Transcript 166/38
[33]Transcript 163/1
[34]Transcript 180/15
The most significant point of departure for the foundation of Dr. Grigg’s opinion is his identification of the mark seen by the witness as being due to a rolling or un-braked wheel. He found no evidence of any abrupt change of direction and concluded the loss of control was due to excessive speed or lack of due attention. [35] One other area of disagreement related to the level of visibility across the curve. On the question of speed Dr. Grigg, whilst suggesting that the wheel marks were consistent with leaving the bitumen surface at 50 kilometres per hour, maintained the possibility of a braking manoeuvre having occurred prior to the vehicle leaving the bitumen or alternatively, a swinging wide manoeuvre on the curve. The latter suggestion would not be consistent with the normal line for negotiating the curve by starting wide on the curve and moving to the centre of the roadway whilst traversing it. In the end result Dr. Grigg concluded that it was “not possible to say precisely where the bike came from” to reach the culvert.[36]
[35]See ex.17 para 4
[36]Transcript 200/45
Having found that the skid marks identified by the various witnesses were caused by the plaintiff’s motorcycle and accepting the undisputed fact that the motorcycle was almost stopped when it reached the culvert, it seems to me Mr. King’s opinion is more soundly based than Dr. Griggs’. I also accept Mr. King’s opinion that if the motorcycle was in the incorrect side of the way when confronted by another vehicle the evasion would have been more violent. I accept Mr. King’s opinion that the loss of control was not due either to speed nor inattention. Having seen members of the plaintiff’s family give evidence, and heard of the level of their respect for motorcycle riding, I have formed the view that the plaintiff had a responsible attitude to his use of the motorcycle on the highway. In the circumstances in which the journey was undertaken, it is unlikely in my view, that the plaintiff would be either riding at an excessive speed or without due care and attention.
Turning then to the question whether the deviation of the motorcycle from its normal course was caused by some other activity on the roadway, the most probable conclusion is that the plaintiff was confronted by a real or perceived danger. It was put to Mr. King that perceived danger might have arisen from a vehicle in the southbound lane remaining wholly within its lane. The following exchange occurred in cross-examination :-
“It’s your theory that Mr. Semmens was confronted by a perceived danger or a real danger, and was forced to – or – and took evasive action which resulted in this mark, and then the slow entry into the culvert, isn’t it? – I wouldn’t put it as my theory. What I see is evidence of a – a motorcycle leaving the road at a speed where under the majority of circumstances there was no reason to make a decision to leave the – the road surface at 50 kilometres an hour in this curve in a – and remembering he’s on – he would be travelling towards the outside of the curve, the – he’s in a position to – to corner with relatively low demands. I ---
What’s changed his mind and resulted in him leaving the road? – I don’t know.
It must be a perceived danger or a real danger, doesn’t it? – I – I believe, yes that’s the reasonable explanation.
Isn’t it possible that a vehicle was coming in the southbound lane wholly within its lane, but let’s say close to the centre line, perhaps even a large vehicle, and that Mr Semmens in these – in this relatively narrow lane took fright at it and overreacted and ran off the road? – I – I would think on this section of road that you would not surprised at a vehicle travelling in its lane, but close to the centre line, given the narrowness of the road the ---
Why not? – Because the road’s relatively narrow, the alignment is – is very tight or even substandard, and so vehicles on cornering will – are more likely to be closer to the centre line than in a better alignment – a better aligned road.
So are you saying that Mr. Semmens is likely to have expected someone coming around the corner in the southbound lane to be near the centre line? – I wouldn’t think that was unusual near the centre line. There was no reason to – to take evasive action if that were – were the only case.
But I mean it’s possible, isn’t it, that he was surprised or mistakenly interpreted the position of a vehicle in the southbound lane as a threat, and reacted to that? – I wouldn’t have thought there was a – the visual circumstances were such he would mistake a vehicle in its own lane as posing a threat.
It depends how close you are to the centre line when you first see it, and how close the other vehicle is to the centre line when you first see it, isn’t it? – I believe his preview of any approaching vehicle, and remembering that they could be approaching at 100 to 120 kilometres an hour, would be at a sufficient distance to make up his mind that there wasn’t a threat or to move to change his clearance enough to – to make him feel comfortable that he would – he would not be under threat from – from the other vehicle if that vehicle was in its lane.”
The considerations referred to in the above passage, of what a motorcyclist ought to have encountered as he traversed this curve, make clear that something untoward probably confronted the plaintiff on this occasion. If there was no danger it would be a strange reaction indeed for the plaintiff suddenly to take his motorcycle, travelling at low speed and part way through a turn, to its left so as to leave the road. The fact that he did take such action is highly suggestive of a threat to him if he followed the normal line of travel.
The sight line across the curve which I had the advantage of inspecting, is not unusual in that section of roadway. It is unlikely that the plaintiff would have been disturbed by the conduct of any vehicle proceeding wholly within the southbound lane. The incident as a matter of probability, could not be explained away by the presence of an animal on the busy roadway particularly at that time of the afternoon. The primary source of threat would obviously come from a vehicle travelling southbound. Having accepted Mr. King’s opinion that the plaintiff’s course of travel was not consistent with his mistake or misjudgment,[37] the source of danger is likely to have been another vehicle.
[37]Transcript 189/35-55
Obviously such a situation cannot be proved as a matter of scientific certainty nor does it have to be. As was noted in Holloway v McFeeters[38] -
“All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.”
[38](1956) 94 CLR 470/480
In TNT Management Pty Ltd v Brookes[39] (Gibbs J (as then was) said:
“The principle to be applied was stated by this Court in Bradshaw v McEwans Pty Ltd (1951; unreported) in a passaged cited in Luxton v Vines (1952), 85 CLR 352, at p.358: “Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities… In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees fo probability so that the choice between them is mere matter of conjecture…But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.”
[39](1979) 53 ALR 267/269
The Cook Highway is a well-travelled roadway with tight curves and sometimes a narrow carriageway. The risk of vehicles travelling onto an incorrect side of the roadway when negotiating a curve is real and ever-present for other road users. I am satisfied, on the balance of probabilities and appplying the “commonsense approach” prescribed in March v Stramare(E and MH) Pty Ltd[40], that the reason for the plaintiff’s deviation from the expected course of travel, was the presentation of such a risk. Accordingly, I find that the plaintiff has established negligence on the part of the driver of the unidentified motor vehicle. There is no basis for any finding of contributory negligence against the plaintiff.
[40](1990-1) 171 CLR 506/515
I give judgment for the plaintiff against the defendant in the sum of $1.4 million agreed damages.
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