Sonnabend v Wilcox
[2014] WADC 133
•1 OCTOBER 2014
SONNABEND -v- WILCOX [2014] WADC 133
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 133 | |
| Case No: | CIV:2916/2012 | 18 - 20 AUGUST 2014 | |
| Coram: | SCOTT DCJ | 1/10/14 | |
| PERTH | |||
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | DANIEL KARL SONNABEND LEONARD JOHN WILCOX |
Catchwords: | Road traffic accident between cyclist and motor vehicle Whether defendant on wrong side of road Trial of liability only Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
LEONARD JOHN WILCOX
Defendant
Catchwords:
Road traffic accident between cyclist and motor vehicle - Whether defendant on wrong side of road - Trial of liability only - Turns on own facts
Legislation:
Nil
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr T Lampropoulous SC
Defendant : Mr P E Jarman
Solicitors:
Plaintiff : Bradley Bayly Legal
Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Nil
- SCOTT DCJ:
Introduction
1 This is a trial of liability only.
2 On 8 December 2011 at approximately 4.30 pm the plaintiff was riding his road racing bicycle (bike) in a north-westerly direction in Parkway, Swan View.
3 Parkway is a two-lane road which is steeply downhill in the direction the plaintiff was riding. At a sharp left hand bend (bend) Parkway becomes Curve Road.
4 Curve Road then heads downhill in a westerly direction towards the intersection with Morrison Road.
5 As the plaintiff was riding his bike towards the bend the defendant was driving a Toyota HiLux 4-wheel drive vehicle (HiLux) in the opposite direction in Curve Road.
6 As the plaintiff commenced to negotiate the bend he fell from the bike to the road and he and/or the bike collided into the right side of the HiLux (incident). He sustained serious head and spinal cord injuries resulting in paraplegia.
7 The plaintiff says that the injuries sustained by him were caused by the negligence of the defendant. The plaintiff alleges that the defendant drove the HiLux over the centre white line, partially on his incorrect side of the road, causing the plaintiff to take evasive action resulting in him falling from his bike.
8 The defendant denies that any part of the HiLux was on the incorrect side of the road at any time.
9 Counsel for the plaintiff concedes that unless the plaintiff proves that the defendant drove the HiLux at least partially on the incorrect side of the road at a time proximate to the plaintiff falling from his bike, the plaintiff's claim must fail. This then is the sole issue which falls for determination.
Evidence
The plaintiff
10 The plaintiff resided at 8 Parkway, Swan View.
11 He had been an avid cyclist since he was 15 and regularly competed in road, track and mountain races.
12 He said that he had lived at 8 Parkway for nine years and regularly rode his bike down Parkway into the sharp left hand bend into Curve Road.
13 He agreed that on the day he was injured there was a tree and foliage on the left side of the bend. This was depicted in exhibit 9 (photograph 72).
14 He said that the bend was a blind corner and it was always his practice to ride towards the centre of the left lane and as he rode around the bend he would move more to the left hand side.
15 He said that he had always been aware that painted lines on the road provided less traction than the bitumen such that there was a real risk of his bike slipping on the painted line in the event that the bike was on the line when it changed direction.
16 He said that he was aware that most cars travelling in the opposite direction uphill would cut the corner so he would not ride too close to the centre white line. He was shown exhibit 3 (photograph 1) in which he identified a light grey patch near the centre white line (grey patch). He agreed that he would ride his bike at about that distance from the centre white line and from the grey patch he would start to cut across the bend. The photograph shows the grey patch to be to the right of the centre of the lane and close to the centre white line.
17 He said that on 8 December 2011 he had planned a ride with his regular training partner, Tom Clifton.
18 He said that as a result of his head injuries he suffered memory loss about the incident.
19 Whilst he remembered things such as his PIN for various bank accounts, his first memory of the incident was four or five months afterwards. He said he then started to have 'flashes' or 'snippets' of memory.
20 He said that before then he had no memory of the incident. He said that he had tried to replay the left hand bend in his head, he kept thinking about it and eventually images came to him.
21 To that end he said that:
(a) he had a vague recollection of talking to his sister and Tom Clifton by telephone that day;
(b) he did not really recall Mr Clifton coming to his house;
(c) he remembered putting his heart monitor on to cycle down Parkway;
(d) he remembered, as he was riding down Parkway, seeing a vehicle which was coming towards him which was too far on his side. He remembered that the white line appeared broken because the vehicle was over it;
(e) he remembered getting a fright and changing his trajectory to avoid the vehicle by moving to his left.
22 He denied the proposition put to him in cross-examination, that because he had cycled around that bend so often before the incident the images that came to him were related to other occasions.
23 He said that before the incident, when he trained down Parkway, he would normally ride at about 40 km per hour and when he got near the bend, he would brake and reduce his speed to about 30 km per hour to take the bend. He regularly trained with Mr Clifton. He said he would ordinarily be ahead of Mr Clifton during training.
24 He did not remember cycling down the hill on the day of the incident but said that he had a memory from a 'fast flash' that he was going about the same pace he always took the bend which would have been about 30 km to 40 km per hour.
25 He said that he could tell the difference between his memory flashes and what someone had told him. He said that he had tried not to talk to others about the incident.
Thomas Clifton
26 He has known the plaintiff for 25 years. For approximately 10 years he had cycled with him on many occasions both in training and in racing.
27 He said that before the incident the plaintiff and he trained together three to four times per week. They had trained down Parkway on many occasions. The plaintiff was a very competent rider.
28 Mr Clifton said that when riding on the road he would try to avoid painted lines because there was less traction on them than the roadway.
29 On 8 December 2011 the plaintiff and he had made arrangements to ride from the plaintiff's home.
30 They set their bike computers from the top of the neighbour's driveway where they could get better coverage.
31 The plaintiff was taking longer than he did to get a signal so he cycled down Parkway first. When he headed into the left hand bend into Curve Road, he looked back and saw that the plaintiff had just set off.
32 In Dr Chew's first report he said that the distance from the letterbox in front of 8 Parkway to the grey patch was 180 m (page 16 photograph 22).
33 Mr Clifton said that approaching the bend there was restricted vision into Curve Road because there was, at the time, a tree and foliage which he identified in exhibit 9 (photograph 72).
34 He said that as he rode into the bend he would tend to head towards the left-hand side of the lane.
35 He would not hug the left-hand curb because there were a lot of honky nuts and debris on the road but he would definitely be on the left-hand side of the centre of the lane.
36 He said (ts 55, 56) '… you definitely wouldn't sit out wide on that corner. Obviously being poor visibility up the road, as a cyclist you'd want to stick away from that white line'.
37 He was referred to exhibit 3 (photograph 1) and to a light coloured spot on the road in the middle of the lane which was just ahead of the grey patch. He said that he would be to the left of that light spot as he cycled around the bend.
38 He said that as soon as he left the neighbour's driveway to commence the ride, he would have been in the middle of the lane and, approaching the bend, he would have reduced his speed and then headed into the bend to the left of the light coloured spot at about 30 km per hour.
39 After he had ridden around the bend he said that a vehicle drove past him in the opposite direction. That vehicle was on its correct side of the road. I note there to be no issue that this vehicle was the HiLux. He said that all of a sudden he heard the noise of the accident.
40 When he heard the noise, he said that he was about 30 m or 40 m past the point where the HiLux stopped. He looked back and saw the plaintiff on the road and the HiLux had stopped. He immediately cycled back. He said that it would have taken him about 10 seconds to ride back to the scene. He said that he was the first person to arrive. A person by the name of Jason arrived after he got there.
41 By the time he got to the scene the driver of the HiLux was out of the vehicle and appeared to be in a bit of shock.
42 The driver said 'look I haven't seen him. He just came from no-where' or words to that effect.
43 He said the plaintiff's head was just adjacent to the running board of the HiLux and his body was almost perpendicular to the centre white line with his legs protruding into the left-hand lane going down the hill.
44 He said that it would have been about six months before the plaintiff could discuss the accident with him however they did not discuss how the plaintiff took the corner.
Ashley Williams
45 Mr Williams said that he had known the plaintiff for 23 or 24 years and they both raced road, track and mountain bikes. They would ride every weekend. He said that the plaintiff was an awesome cyclist.
46 He too said that the painted lines on roads were to be avoided. If he was turning on a bend there was a lot less friction with the road if you hit the white line and there would be a good chance that you would come off your bike.
47 He agreed that if one kept a straight line across a painted white line then that would be a safe manoeuvre, but trying to turn on the white line was something that he would avoid.
48 He said to apex the bend you basically wanted to get close to the point of the apex being the middle of the bend. You would start a bit wide and come across the bend so you were almost at the curb on the apex. That was so you would not have to change your line in the middle of a bend otherwise there was more chance of losing traction and falling.
Jason Whitburn
49 Mr Whitburn was called by the defendant. He used to live at 3 Forrest Road, Swan View for about three years and moved out about two years ago.
50 On 8 December 2011he was driving his Mercedes sedan home from work up Curve Road. As he approached the bend he saw the HiLux which was then stopped. It appeared to him that an accident had only just happened.
51 The plaintiff was on the ground and the bike was off to the right.
52 He said that the defendant was walking around and was clearly in shock. He thought he spoke to him but he did not recall getting any response.
53 Very shortly after he got to the scene a cyclist named Thomas arrived. Whilst that is in conflict with the evidence of Mr Clifton, I do not consider that the overall credibility of either witness was adversely affected. It is not unusual for there to be some inconsistencies in the recollection of persons who have arrived shortly after a traffic accident in which there was serious injury. This is particularly so where the inconsistencies relate to matters which at the time may not, to the witness, be of significant moment.
54 He said he had a long history in cycling. He was previously a road racer and mountain bike racer.
55 He would have ridden around this bend several hundred times – at least twice a week for the time he lived in Forrest Road.
56 He said that in his view this was a very dangerous bend whether one was in a car or on a bike. It is a blind bend in the downhill direction.
57 He said that in a downward direction it was a very good bend from a cycling perspective if one 'hit the apex right' but it was very easy to carry too much speed into the bend.
58 On about six occasions, more as a thrill than anything else, he had taken the bend from the incorrect side of the centre line so he could get a better angle through the apex. On those occasions his speed would have been 50 km to 60km per hour.
59 He said that the best approach angle to go through the bend and get good speed out of it was to take the bend wide. He agreed that in normal situations, when negotiating the bend he would keep to the left of the centre white line at a speed of 30 km to 40 km per hour.
60 At 40 km per hour he would not have difficulty cycling around the bend but it became more challenging up around 50 km to 60 km per hour. In his view at 30 km to 40 km per hour a confident rider would easily manoeuvre the bend.
Leonard Wilcox
61 He was 57 years of age, had been employed by WestTrac for more than 20 years and was then employed as the manager of business intelligence.
62 He had resided at 10 Forrest Road since 1998.
63 He said that there was only one way to drive in and out of that area. To drive out towards Swan View one would turn left from Forrest Road down Parkway and then into Curve Road.
64 He said he was very familiar with the bend. He would have travelled it twice a day over the past 16 years.
65 He said that the bend was dangerous because of the 90 degree turn. He said that he always stayed on his correct side of the centre white line and had never crossed the line as he negotiated the bend.
66 On the day of the incident he was driving his HiLux home from work. He turned left from Morrison Road into Curve Road. As he was heading up Curve Road he passed a cyclist who was riding in the opposite direction. Curve Road was about 200 m in length and he said that he passed the cyclist about 100 m down that road.
67 This distance is not the same as the evidence of Mr Clifton. I prefer Mr Clifton's evidence with respect to this matter. He was aware that the plaintiff was following him. When he turned and saw the plaintiff on the ground next to the HiLux he said he was about 30 m to 40 m away and immediately cycled back to the scene which took him about 10 seconds. I consider it likely that his recollection as to where he was when he heard the collision, which was just after the HiLux passed him, would be more precise than the defendant's recollection.
68 He said the cyclist passed him in a flash. He estimated the speed of the cyclist to be about 50 km per hour.
69 As he approached the bend, the HiLux was in third gear at about 20 km to 25 km per hour. As he always did, he changed back into second gear.
70 Then out of the corner of his eye he said he saw another cyclist (the plaintiff) appear around the bend.
71 He said he saw the plaintiff for less than a second. He saw him trying to correct the bike to get back on his correct side of the road and then he saw the plaintiff fall off his bike and he lost sight of him.
72 The next thing he remembered was hearing 'oh fuck' and then he heard a mighty thud.
73 He said that because he was changing back into second gear he had let the clutch out and when he saw the cyclist he immediately hit the brakes and did not depress the clutch again. He thought that he must have stalled the HiLux which had stopped before he heard the thud. He estimated that his vehicle stopped within a car length of braking.
74 He said that the HiLux was well out to the left hand side near the curb and would have been about two feet away from the centre white line.
75 He said that he would not have been anywhere near the white line because of the danger of the bend. He had travelled there so many times and he knew he had to stay in his proper lane, well away from the white line.
76 When he opened the door he could see the plaintiff. His head was where the steel side step of his HiLux was.
77 He said that the plaintiff's body was curled around with his head near the side step with his legs over the white line.
78 Five or ten seconds after he got out of the vehicle, the cyclist's mate who he now knows to be Thomas Clifton arrived at the scene.
79 He said he believed Mr Clifton said 'oh fuck what's happened' and he said 'mate, your mate's in a lot of trouble and I don't have a phone on me'.
80 It was put to him that Mr Clifton said in evidence that he said to Mr Wilcox 'did you run over him' or words to that effect and Mr Wilcox responded with words to the effect 'he came out of nowhere' or 'I didn't see him'. He said that it was a fair while ago, but if he said he did not see him, he thought that he would have added 'after he came off his bike'.
81 The next day he went back to the scene and took a number of photographs exhibit 9 (photographs 56 – 78).
82 In cross-examination he said that it was a fine day. He did not agree when it was put to him that it was all a bit routine for him going up and down the road. He said that it was such a dangerous bend, it was necessary to pay attention to navigate his way through it.
83 He said he was well aware of the importance of staying on his correct side of the road. This was the only dangerous bend that he had to deal with as he travelled to and from work.
84 He said that when he changed back into second gear to go around the bend he would have been doing 5 km to 10 km an hour. He believed he had changed into second gear before he saw the plaintiff.
85 When he first saw him, he said that the plaintiff was riding in the middle of the road approaching the bend. He only saw him for a second. He said that he did not see the plaintiff after he fell but he believed that the plaintiff continued in a straight line.
86 He was asked whether he could explain how it was that if the plaintiff was ahead of the HiLux then came off the bike in the wrong lane, the plaintiff could end up next to the right-hand side of the HiLux. To that he said: 'all I know is that when he fell off his bike in the direction he was travelling he was heading towards my car and he has gone in a straight path straight into my car'. He added: 'I've seen him for only a short period of time and then I've seen him fall off his bike and in the path he was taking he was going (to) head straight into my car. He was going to hit it somewhere'.
87 He said that when he first saw him the plaintiff would have been about 35 m in front of the HiLux. When he lost sight of the plaintiff, he would have been about 20 m away.
88 He marked on exhibit 9 photograph 58 the position he said the plaintiff was when he first saw him and on photograph 59 where the plaintiff was when he last saw him. Each mark was on the centre white line. He said that the difference in his position when he took photographs 58 and 59 was about 10 m.
89 He was referred to his police statement which he made on the day at the scene.
90 Although he agreed that he said in his statement that he saw (the plaintiff) approaching from around the bend he said that he did not believe that the plaintiff had commenced to turn into the bend when he first saw him.
91 He agreed that he said in his police statement that the bike hit the driver's side step. In his evidence he said he could not remember where the bike hit. He said that he did not know what actually hit his vehicle. It was either the plaintiff or the bike or both together.
Dr Chew
92 Dr Chew's first report of 24 October 2013 is exhibit 5.2 (first report). His redacted report in response to the report of Mr Simms is dated 29 May 2014 and is exhibit 5.3.
93 Dr Chew is a qualified medical engineer and professional ergonomist.
94 Primarily he was instructed to undertake measurements and calculations with respect to the line of sight that the plaintiff and the defendant would likely have had of each other as the plaintiff cycled around the bend and the likely distance that the bike and the HiLux would have been apart when the plaintiff was first visible to the defendant.
95 He undertook a site inspection on 30 September 2013. By then, the tree and the foliage on the left hand side of the bend, in the direction down Parkway, had been removed.
96 He established a zero reference mark at a point on the concrete curb outside 8 Parkway, approximately in line with the letterbox, and observed the blue paint marks (blue markings) depicting the HiLux where it stopped which were 184 m to 189 m from his reference mark.
97 He walked down Parkway marking the right hand curb at 10 m intervals to 250 m. He then returned to his reference mark and took photographs with the camera in the middle of the road at a height of 1.2 m at each of the marks down and then up Parkway/Curve Road.
98 In estimating the distance between the plaintiff and the defendant when the plaintiff was likely first visible to the defendant, he and an assistant wore high visibility clothing.
99 The assistant simulated the position of a cyclist travelling downhill and he simulated the position of a driver, facing uphill.
100 He then considered six scenarios with respect to the distance between the plaintiff and the HiLux after the defendant would likely have first seen the plaintiff. Those scenarios involved a number of combinations relating to the respective positions of the plaintiff and the HiLux on the road.
101 He then measured, with respect to each scenario, the distance from marks between 250 m to 190 m uphill to where he (as the defendant) first saw his assistant (as the plaintiff). Those results were summarised in par 72 of his first report.
102 There was no marking on the road reflecting the point of impact between the plaintiff's bike and the HiLux (point of impact).
103 In order to estimate the point of impact he undertook an analysis with respect to further two scenarios, namely:
1. The Hilux travelling on the correct side of the road, the defendant applying braking post-impact and stopping the HiLux at the position identified by the blue markings.
2. The HiLux straddling the centre line of the road for a few seconds prior to impact, and the defendant steering it towards the left, applying braking post-impact and stopping it at the position identified by the blue markings.
104 As to each of these two scenarios Dr Chew said that he was instructed to assume that the defendant braked after impact. In making his calculations as to the point of impact he made the following assumptions:
(a) The speed of the HiLux at and shortly before impact was 22.5 km per hour – being the mean average of 20 km to 25 km per hour.
(b) The defendant's braking reaction was 0.5 of a second.
(c) The braking coefficient of the HiLux was 0.7 for hard braking.
(d) The average gradient of the roadway was 5 degrees.
(e) The plaintiff's bicycle speed prior to impact was 35 km per hour – being the mean average of 30 to 40 km per hour.
(f) The HiLux stopped at the 185 m mark given the blue markings on the road.
(g) In the scenario where the HiLux was straddling the centre line of the road (scenario 2) it, after impact, travelled laterally on the road by 1.8 m.
105 Based on these assumptions and the calculations in par 72 of his first report he came to the following conclusions.
Scenario 1 (which assumed that the HiLux was on the correct side of the road at all times)
(a) The point of impact was at the 190.7 m mark.
(b) The plaintiff would have been visible to the defendant and the HiLux would have been visible to the plaintiff for approximately 3 seconds to 3.5 seconds.
Scenario 2 (which assumed that the HiLux was straddling the centre line of the road for up to 5 seconds before impact)
(a) The point of impact was at the 190.4 m mark.
(b) The plaintiff would have been visible to the defendant and the HiLux would have been visible to the plaintiff for approximately 2.5 seconds to 3 seconds before impact.
106 Dr Chew said in cross-examination that the defendant's braking reaction time of 0.5 of a second was derived from the Handbook of Road Safety Research by Professor Grime in which the reaction time was there referred to as being between 0.5 – 1.5 of a second for a fast reaction.
107 He agreed that in assessing the defendant's reaction time he did not take into account any human factors such as cognitive processing, the time it might take for a human being to process that information about whether or not a situation was dangerous or any psychological factors. He agreed that that was a science in itself.
108 He accepted that the Handbook to which he referred was a 1987 publication and that there were subsequent bodies of work that had been undertaken such as the work by Olson & Sivak about which he had only recently been aware.
109 He agreed that Olson & Sivak made the point that for reaction tests, if one was expecting to see a hazard emerge, one would react more quickly than if the hazard was not expected.
110 He was shown exhibit 9 (photograph 72) which depicted the tree and foliage in situ at the time of the incident. He accepted that the existence of the tree and foliage would reduce the defendant's visibility because they could be in the way of the line of sight particularly looking up Curve Road.
111 He agreed that he did not make any calculations with respect to the extent to which the visibility distances the subject of his first report were affected by the tree and foliage.
112 He agreed that the separation distances and visibility times in his first report were unreliable given the existence of the tree and foliage and that there would need to be an adjustment to those calculations - which he had not done.
113 With respect to the scenario that the HiLux was straddling the white line and then stopped after impact he agreed it would have been necessary for the HiLux to translate sideways by 1.8 m (to stop where it did) in 5.66 m.
114 He conceded that in order to do so, the driver would have had to turn the steering wheel as hard as he possibly could to the left and again hard to the right to translate the vehicle to that position. He accepted that was likely to be very difficult to do.
Martin Simms
115 His redacted report of 29 January 2014 is exhibit 14.
116 He is a mechanical engineer. He was instructed to consider and provide comments with respect to Dr Chew's first report.
117 He said that the damage to the front wheel of the plaintiff's bike was consistent with it hitting a relatively blunt edge such as a bull bar or side-step while cantered over at an angle. He said that the handlebars of the bike were twisted at 90 degrees to the front forks in the police photographs and that was indicative of the plaintiff still holding onto the handlebars at impact and the impact turning the front wheel of the bike relative to the handlebars.
118 As to Dr Chew's estimate of the timeframe over which the plaintiff and defendant would have had each other in sight, he said that Dr Chew's calculations did not take into account other factors such as what each of them may have been looking at at any time. Further he said that one could not assume that they each saw each other immediately upon one being visible to the other.
119 In addition Dr Chew did not make any allowance for the fact that direct line of sight and distance does not necessarily represent actual observation and distance due to other human factors such as field of view and the time taken to respond to a stimulus. His said that his opinion was that knowing the direct line of sight provided no useful information in assessing accident causation.
120 He said that he rounded the bend in the direction the defendant took. His speed was approximately 20 km per hour for a comfortable negotiation of the bend. He said that at 5 km per hour he would expect that the HiLux would need to be in first gear. As to whether it could travel in second gear at 5 km per hour uphill he said even without testing the HiLux he thought it would be 'pretty unlikely' and in his view the vehicle would be really struggling. He did not advance any view about a speed of 10 km per hour.
121 As to the assumption by Dr Chew that the HiLux was straddling the centreline when the impact occurred and then came to a stop after 5.66 m, he said that it was in his opinion, very unlikely that the HiLux could have translated sideways by 1.8 m in a distance of 5.66 m so as to stop where indicated by the blue markings.
122 In my view given the concession made by Dr Chew and the opinion advanced by Mr Simms I consider it unlikely that the point of impact could have occurred when the HiLux was straddling the centre white line. That view is reinforced by the location of the plaintiff when the HiLux came to a stop 0.9 m inside the centre white line.
123 I have significant reservations concerning the calculations and conclusions made by Dr Chew. To that end:
(a) In the scenarios he considered, he was instructed to assume that the HiLux braked after the point of impact. There was no evidence to support that assumption.
(b) He did not, with respect to his calculations concerning and relating to line of sight, visibility and visibility times and distances, factor into account, the existence at the time of the incident of the tree and foliage. He accepted that would require those calculations to be revisited and adjusted which he had not done.
(c) He did not take into account, in considering the likely reaction time of a person such as the defendant, matters relating to cognitive processing during which a human being might process information about whether or not a situation was dangerous, any psychological factors or, for example the normal exigencies of driving i.e. overall awareness. In addition no consideration was given to the fact that during the test conducted by him, his assistant was wearing a high visibility top and Dr Chew, simulating the driver, expected to see his assistant appear.
124 I do not find myself assisted by Dr Chew's reports or evidence in making a finding as to the likelihood that the HiLux was or was not at any relevant time travelling within its lane.
Plaintiff's memory
125 The plaintiff gave evidence of having no recollection at all of the incident until some months later when he said that he regained some memory of the incident through 'flashes' or 'snippets' of images.
Neurological evidence
Bryant Stokes
126 Mr Stokes is a specialist neurosurgeon. He reviewed the plaintiff on 19 September 2012 and provided two reports dated 14 November 2012 and 21 February 2013 (exhibits 2.2 and 2.3).
127 His evidence was taken de bene esse on 30 July 2014 (exhibit 1).
128 His opinion was sought as to the possibility or likelihood that the brain injury sustained by the plaintiff, who suffered memory loss in the early stages following injury, could improve over time and enable him to later remember things he could not earlier recall.
129 In his report of 14 November 2012 Mr Stokes said:
(a) Relevantly the plaintiff sustained a severe head injury with profuse petechial haemorrhages which appeared to have significantly resolved. He underwent intracranial pressure monitoring and the pressure never reached higher than 25 millimetres of mercury which was twice the normal intracranial pressure. He suffered a number of additional bodily injuries and from a thoracic cord injury was paraplegic.
(b) When he reviewed him the plaintiff said that whilst he had some memory vaguely of the accident, he remembered more of the environment in which the accident took place and he often needed a trigger for memory in that regard. His sister reported that the plaintiff had intermittent flashes of memory in which he was able to remember passwords and activity of that nature.
(c) He considered that the plaintiff ought to have an MRI scan to further assess the diffuse axonal injury.
130 In his report of 21 February 2013 Mr Stokes confirmed that he had sighted a copy of the MRI scan result and said:
(a) There was evidence of a diffuse axonal injury which was mainly in the mid-brain and in the corpus collosum.
(b) It was possible that a person could have initial loss of recall of information after injury and for the retention of some important information to the patient such as bank account numbers and passwords. He did not find that to be inconsistent with the type of injury that the plaintiff suffered.
131 In his evidence de bene esse:
(i) He explained the mechanism of memory. He said that information which people take in at any given moment is initially stored electrically in the medial part of the temporal lobe and then some of that is filtered out when it is obviously stuff that the person does not need, that was not important or if the person was distracted or something of that nature.
Between 6 hours to 36 hours afterwards, that electrical storage of information is then converted chemically into the brain. So there was a period of time in which memory is lost after a significant commotio cerebri, that is a severe concussive process in which the brain is thrown around inside the skull, as was the case with the plaintiff.
He said that memory of an impact and of the period immediately before the impact is forgotten because it is electrically stored but gets disturbed and destroyed when the commotion happens. Some memory such as that which is stored chemically for a long time remains.
(ii) He said that when he questioned him the plaintiff had very little that he could tell him about the accident although he did have some awareness of the environment. Mr Stokes said that one of the things that he knew over the years was that with respect to people who have had accidents of the nature suffered by the plaintiff, often information is told to them by others and they tended to consider that that is what they remembered. He said it was very difficult to know but he would have thought that with the severity of the plaintiff's injury he would have had no recollection of the impact or anything of that nature.
(iii) He agreed with the proposition put to him that it was most unlikely that short term memory of the events in the 60 seconds or so leading up to the trauma which the plaintiff suffered were recalled.
Dr Keith Grainger
132 Dr Grainger is a neurologist in practice for 27 years. He wrote a report dated 7 February 2014 (exhibit 8.2) and gave evidence de bene esse (exhibit 8.1).
133 In his report he said:
(a) He attended on the plaintiff on 6 February 2014. The plaintiff told him that he vaguely remembered turning into a left hand corner and saw a car ahead which gave him a fright as it was over the white line in the middle of the road.
(b) He reviewed the relevant materials. The plaintiff had a Glasgow Coma Score of 5/15 on admission which indicated significant cerebral changes. The Royal Perth Hospital summary indicated very significant memory problems and one would not associate that with a recall of events immediately before the traumatic brain injury was sustained. It is possible, he said, that some of the plaintiff's recall was related to what he had been told about the event and false recovered memories.
(c) In responding to the question as to whether the plaintiff's memory of the circumstances of the accident was reliable he said that given the Glasgow Coma Score of 5/15 and the traumatic haemorrhages seen on the CT scan one would have anticipated that there would be a significant anterograde amnesia including the period immediately before the head trauma bringing into question the reliability of his recall of the accident. In the course of his evidence de bene esse:
(i) he said that the Glasgow Coma Score is an assessment based on eye movements, motor and speech. A score of 3 is where there are no responses at all ie, the minimum score and 5 is slightly above that.
(ii) he referred to studies relating to people who suffered from significant head and brain injuries. He said that the amnesia occurring before the events is called retrograde amnesia. His opinion was that it would seem unlikely with the plaintiff's degree of severe coma and evidence of significant brain injury with haemorrhage and swelling that the plaintiff would have any recall of the accident and a minute or so before the accident occurred.
(iii) he said that the plaintiff, given his injuries had made a very amazing recovery and had probably exceeded most people's expectations. He observed that as the swelling went down then the neurons may have started to function again. He did not say that that would result in any change to his opinion referred to in the proceeding sub-paragraph.
134 In his evidence the plaintiff was asked how it was that he subsequently had some recollection to which he said:
Well, because I'd been around that corner so many times I tried to replay that corner in my head, you know, the image of that corner, so I think that is what triggered it because the first time I went out there I didn't recall anything. So I thought afterwards I'll keep thinking about it regardless and eventually, in time, some memory just came to me.
135 Having regard to the evidence of the plaintiff and the opinions expressed by Mr Stokes and Dr Grainger it is my view that it is likely that because of the head injuries sustained by the plaintiff, his memory of the impact and of matters immediately prior to the impact were lost and that the flashes or snippets of memory to which he referred were the result of a reconstruction of what he thought likely preceded the impact based upon his previous experience negotiating the bend and/or a reflection of what others may have observed about the circumstances in which he may have fallen from his bike.
136 I accept that the plaintiff believed that the flashes or snippets to which he referred were actual memories. However I am not satisfied that the images which he said came to him can be relied on as his actual and accurate memory.
The position of the HiLux
137 In this case only the plaintiff and the defendant witnessed the incident and the circumstances immediately beforehand.
138 The burden of proof is on the plaintiff. Counsel for the plaintiff correctly accepts that if I was not satisfied that at a time proximate to the plaintiff falling from his bike the HiLux was partly on the incorrect side of the road, the plaintiff's claim must fail.
Plaintiff's experience
139 Counsel for the plaintiff says that by reason of the plaintiff's experience and expertise as a cyclist and his familiarity with negotiating this bend I should infer that on this occasion he would have entered and taken the bend as he said he always did and would not simply have fallen off his bike. As a result, counsel says, the cause of the plaintiff's injuries was that when it entered the bend the HiLux must have been partly on the incorrect side of the road which resulted in the plaintiff taking evasive action and falling from his bike. I do not agree. To that end:
(a) Mr Clifton said that he rode off before the plaintiff because the plaintiff had not set his computer. Mr Clifton was travelling at about 30 km per hour. Just before he entered the bend he looked over his shoulder and saw the plaintiff just setting off. Dr Chew, in his first report, calculated the grey patch (just before the bend) to be at about the 180 m mark. That measurement was not taken from the neighbour's driveway. Nonetheless when Mr Clifton entered the bend he would then have been well ahead of the plaintiff. Mr Clifton said he then rode around the bend and was 30 m or 40 m past the point at which the HiLux came to a stop when he heard the collision. In order for the plaintiff to have reduced the distance between him and Mr Clifton to that extent, it is reasonable to infer that the plaintiff must have been riding at a speed which was considerably faster than Mr Clifton.
(b) Mr Whitburn's evidence was that at a speed of 50 km to 60 km per hour taking the bend would be challenging. The plaintiff said that in coming down that bend too fast, you could lose control.
(c) The plaintiff's speed was likely to have been considerably faster than, on his evidence, the speed at which he would usually enter the bend.
140 In those circumstances I consider it to be more likely that the plaintiff, at a speed considerably faster than normal, commenced to negotiate the bend from at or about the grey patch, turned his handle bars to take a position towards the middle of the lane, lost balance or over corrected and fell.
141 Further, from exhibit 9 (photographs 72 and 73) it appears that from the grey patch the plaintiff's visibility around the bend would likely have been significantly curtailed by the tree and foliage on the apex of the bend. As the plaintiff was starting to negotiate the bend the sudden appearance of the HiLux could well have distracted him as he did so - even though it was within its correct lane.
142 Counsel for the plaintiff submitted that the evidence of the defendant was, unreliable and ought to be rejected. To that end counsel pointed to the following:
(a) The defendant said that when he changed back into second gear to go around the bend he would have been doing 5 km to 10 km per hour. Counsel said Mr Simms observed that 5 km per hour would not have been a reasonable speed given the steep hill and that the HiLux would really struggle in second gear at that speed. Mr Simms did not express any view about a speed of 10 km per hour in second gear. This matter did not in my view impact adversely on the defendant's reliability as a witness.
(b) The defendant gave evidence that he was on the straight stretch of Curve Road when he changed into second gear but counsel says it was apparent from figures 3 and 4 in Mr Simms's report that the HiLux was well into the bend. I do not agree. When one considers photographs 56 – 58 (exhibit 9) which depict progressive travel up Curve Road it appears that shortly prior to the HiLux coming to a stop it was not 'well into the bend'.
(c) On photographs 58 and 59 the defendant marked the plaintiff's position on the road when he first and last saw him, as being on the centre white line which was inconsistent with his evidence that the plaintiff was on the incorrect side of the road as he over-corrected his steering.
To that end the plaintiff in his evidence said that he would generally approach and enter the bend at or about the position of the grey patch. It is evident from exhibit 9 (photograph 72) and exhibit 3 (photograph 1) that the grey patch is quite close to the centre white line. If that was the plaintiff's position on this occasion as he entered the bend, given the short time within which I accept that the defendant saw the plaintiff and the angle of his view, I do not consider it adverse to his overall reliability that his perception was that the plaintiff was on or just over the centre white line.
(d) In cross-examination the defendant was asked to estimate the distance between the right hand side of the HiLux and the curb to his right. Counsel for the plaintiff submitted that the defendant faced a dilemma in that if his answer indicated too large a distance that would have revealed that there was ample space for the plaintiff to have cycled past him. On the other hand if he nominated too short a distance that would indicate that the HiLux had strayed over the centre white line. Counsel said that the defendant settled on a distance of 2 m to 3 m and that distance would mean that the HiLux must have been straddling the centre white line because the roadway was 7.3 m wide.
In my view this is not a realistic conclusion to be reached on the evidence given by the defendant. There was no indication, in my view, that the defendant prevaricated in his answer because he was alert to any dilemma as counsel contends. It is obvious that even if the HiLux was straddling the centre white line there would still be room for a bike to pass between the right hand side of the HiLux and the curb.
The fact that the defendant 'settled on' a distance of 2 m to 3 m is, in this regard, of little moment. The position of the HiLux on the road where it stopped is not in issue. The defendant was unshaken in his evidence that the Hilux was never other than within the confines of its lane.
143 I found the defendant's evidence to have been given in a straight forward and candid manner. I accept him to have been an honest and reliable witness. He was unshaken in his evidence that the HiLux was always in its correct lane.
144 I accept that the defendant drove his vehicle around the bend, in both directions, on or about a daily basis for 16 years and was well aware of the dangers which the bend presented.
145 I accept the defendant's evidence that as he approached the bend from Curve Road he was in third gear and that his speed was about 20 km to 25km per hour. As he got to the start of the bend, as he always did, he changed back to second gear and it was then that he saw the plaintiff appear from the other direction.
146 I accept that he saw the plaintiff for only a very short time during which he saw him trying to correct his bike towards his side of the road and the bike going from under him. I accept that the defendant braked immediately he saw the plaintiff because his perception was that the plaintiff's bike was on or just over the centre white line.
147 The evidence of the defendant was to an extent supported by Mr Clifton. He said the HiLux went past him when he was already around the bend. The HiLux was then on its correct side of the road. He then heard the noise of the impact at which time he was then only 30 m or 40 m past the point at which the HiLux stopped. It then took him only about 10 seconds to return to the scene.
148 In this case the defendant's vehicle had just been passed by a cyclist, Mr Clifton, travelling at speed. The defendant saw him. He was aware that this was a blind bend. I consider it most unlikely that he would then, almost immediately, have driven his vehicle out of its lane onto or over the centre lane.
149 I accept the defendant's evidence that the HiLux was at all times in its correct lane.
150 In this case it was tragic that the plaintiff suffered significant injury.
151 However on all the evidence I am not satisfied that the HiLux was at any material time partly on the centre white line or the incorrect side of the road. I am satisfied that it was entirely within its own lane.
152 As a consequence the plaintiff's injuries were not caused or contributed to by any negligence on the part of the defendant.
153 The plaintiff's claim is therefore dismissed.
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