Vega v Tvedsborg

[2007] NSWDC 197

CITATION:	Vega v Tvedsborg & Anor [2007] NSWDC 197
HEARING DATE(S):	24 - 28 September 2007, 2 October 2007
JUDGMENT DATE:	10 October 2007
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	1. Verdict for the plaintiff against the first defendant; 2. No finding of contributory negligence on the part of the plaintiff; 3. Verdict for the second defendant against the plaintiff; 4. Verdict for the cross defendant against the cross claimant
CATCHWORDS:	Torts - negligence - motor vehicle - Evidence - failure to give - inferences - Jones v Dunkel - Defences - organised motor sport - volenti non fit injuria - Defences - contributory negligence - passenger where driver affected by alcohol
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] Nicholson v Nicholson (1994) 35 NSWLR 308
PARTIES:	Edith Ivonne Vega (Plaintiff) John Tvedsborg (First Defendant) Nominal Defendant (Second Defendant)
FILE NUMBER(S):	1513 of 2005
COUNSEL:	Mr P. Jones (Plaintiff) Mr J.N. Gleeson QC, Mr B.G. Smith (First Defendant) Mr R.R. Stitt QC, Mr H.W.M. Stitt (Second Defendant)
SOLICITORS:	Colin Daley Quinn, Solicitors (Plaintiff) Moray & Agnew (First Defendant) Sparke Helmore Lawyers (Second Defendant)

JUDGMENT

1 HIS HONOUR: The principal issues for decision in the case before me are

1. Whether or not a vehicle other than the first defendant’s motorcycle was involved in an incident, as a result of which the plaintiff, who was a pillion passenger on the first defendant's motorcycle, was thrown off the motorcycle and seriously injured.

2. If I find that another vehicle was involved in the incident, whether and, if so, to what extent, the plaintiff's injuries resulted from the fault of the owner or driver of that vehicle in its use or operation.

3. In any event, whether, and if so, to what extent, the plaintiff’s injuries resulted from the fault of the first defendant in the use or operation of his motorcycle.

2 There may also be questions of the availability of certain defences if I decide that either defendant or both is or are liable.

3 A direction has been made that issues of liability be tried separately.

The circumstances leading to the incident

4 The incident occurred on Anzac Day, 25 April 2004. It appears that each Anzac Day a motorcycle club known as the Hell’s Angels organises an event known as a poker run. From the evidence, I infer that this is an activity whose principal objective is to raise money for charity. It is open to any member of the public who rides a motorcycle, and to pillion passengers.

5 Mr Gary Wilkins, who was not challenged on this point, said that it was a family event, and he had no concerns about taking his daughter, then aged 11, for the ride. He has taken part in the event several times, both before and after 2004. In 2004 and in previous years, he had ridden in the event with the first defendant, John Tvedsborg, and his partner, the plaintiff, Edith Vega. Wilkins and the first defendant were both, in April 2004, members of the King’s Cross Motorcycle Club and good friends. They were both skilled and experienced motorcyclists.

6 The participants in the 2004 poker run gathered at the Hell's Angel clubhouse in Broughton Street, Guildford, before the start time of 11a.m. The Hell’s Angels blocked off the ends of the street and charged an entry fee to each participant. Each participant was also given three playing cards. Once the participants had gathered and had a drink and something to eat, there was a short speech in which the president of the Hell’s Angels discussed Anzac Day and indicated the route to be taken. Up until this time the participants did not know where the ride would go. The president also spoke about the general rules for the activity. One of these was that all participants must obey directions of the marshals (members of Hell’s Angels) and stay behind the Hell’s Angels who are leading the ride. Mr Wilkins also gave evidence that on the 2004 poker run, the president, a man called Derek, also emphasized the need for safe riding and to maintain space between the bikes. It is not uncommon for 1000 to 1500 motorcycles to take part in the activity. Once the motorcycles leave the Hell’s Angels clubhouse, they go to two other locations, at each of which each participant is given a further two playing cards. When the group returns to the Hell's Angel clubhouse, prizes are given for the participants who have the best poker hands.

7 Mr Wilkins said that the ride was quite slow. Marshals constantly gave directions as to the route. The second defendant tendered a poster for the poker run, showing a large number of cyclists, including Mr Wilkins. I am not satisfied that the participants were in this formation for the whole of the ride, as Mr Wilkins gave evidence that the photograph was taken in Broughton Street, before the ride commenced.

8 He also gave evidence that, because the ride was slow, only after he and the first defendant left the Lapstone Hotel did he have the opportunity to accelerate hard.

9 In the 2004 poker run, there were from about 800 to 1000 (or more) participants. They rode from the Hell’s Angels clubhouse to the Wallacia Hotel, where there was a brief stop, for about half an hour. The motorcycles then moved to the Lapstone Hotel at Glenbrook arriving about 1pm, where there was a longer pause. After each pause no announcement was made as to where the group would go next, or by which route. It was expected that all participants would follow the Hell’s Angels.

10 After the Lapstone Hotel stop, evidence was given by Mr Wilkins that most of the participants had their cycles facing west, that is, towards Katoomba, anticipating that the ride would continue up the Blue Mountains. In fact, the Hell’s Angels who were leading the ride ran to their cycles and rode east down Railway Street in the general direction of Penrith. This caused some consternation amongst the riders, including the first defendant and Mr Wilkins, who, in order to follow, had to change the direction of their cycles.

11 The leaders of the event moved down Railway Street. The only evidence before me is that the first defendant and Wilkins were towards the head of the group of cyclists immediately following the leaders. Wilkins told the police that the first defendant was 15 cycles from the head of the group. Wilkins said that there was a space between the Hell’s Angels and the rest of the group, and he lost sight of the Hell’s Angels. He said this was the only time that the riders had been able to accelerate hard, although they had started slowly from the Lapstone Hotel. He was about 1-3 metres behind the first defendant. They both accelerated after they passed what he thought, when he looked at a map, was Levy Street, and Mr Wilkins told the police that they reached a speed of 70-80 kilometres per hour. Mr Wilkins admitted that he was probably well over the speed limit, which was 50 km/h at that point.

12 The point at which Mr Keramidas (whose evidence I accept and discuss below) says the first defendant lost control was in Railway Street, about 400-500 metres east of the Lapstone Hotel, and about 10-20 metres west of the intersection with Glenbrook Road. Railway Street is straight to this point, then curves to the left in a wide curve. This is consistent with the point at which the police found the plaintiff, the first defendant and the motorcycle, which was some 40-50 metres further east.

13 The first defendant lost control of his motorcycle in circumstances that are in dispute. It is not in dispute that the cycle fell to the left so that the tyres left the road surface, and the motorcycle moved on its side to the edge of the sealed road, on the southern side, where it then began to tumble, finally ending up near a concrete stormwater drain cover. The first defendant was thrown clear, and the motorcycle landed on the plaintiff.

The plaintiff's and the first defendant's position

14 Both the plaintiff and the first defendant say that the cause of the first defendant's motorcycle being thrown off balance, which itself caused the injury to the plaintiff, was that the rear wheel of a motorcycle, travelling in front of and to the left of the first defendant, drifted towards the centre of the roadway and "clipped" the front wheels of his motorcycle, causing it to be thrown off balance.

Other evidence of the circumstances

15 Both an ambulance report and a record made by the triage nurse at the Nepean Hospital, to which the first defendant was taken after the accident, use the word "clipped" and I infer that from these records that the persons making them recorded that the first defendant had said that the cause of his motorcycle becoming unbalanced was that it had been clipped.

The second defendant's position

16 The second defendant (also the defendant in the first cross-claim) is the Nominal Defendant. It concedes that the plaintiff and the first defendant had made diligent search and inquiry. It contends, however, that no second vehicle was involved.

The first defendant’s position

17 The first defendant did not give evidence. No explanation was given as to why this was so. This, of course, leads me to the inference that if he had given evidence, it would not have assisted his case: Jones v Dunkel (1959) 101 CLR 298, esp 321 per Windeyer J. Mr Wilkins is apparently still in contact with him occasionally, though not as frequently as formerly. Both were, at the time of these events, members of the King’s Cross Motor Cycle Club. The first defendant resigned from this group when he became a member of the Hell’s Angels, after this accident, as apparently the Hell’s Angels will not allow their members to be members of any other group. Mr Wilkins also gave evidence that they do not approve of their members or associates speaking to the police, and that they resisted the police impounding the first defendant’s motorcycle. I infer that they would approve even less of any member or associate giving evidence that might implicate another member or associate of the group.

18 The first defendant has admitted that his blood alcohol reading, taken after his admission to Nepean Hospital was 0.083%. I assume that he realised that this would not assist him in any way, and he was in fact charged with a drink driving offence, and dealt with under the Crimes (Sentencing Procedure) Act, 1999, s 10.

19 In evidence there is a report of a psychiatric registrar at the Nepean Hospital, dated 26 April 2004, giving the opinion that at that time the first defendant was mentally ill and was consumed by guilt. This does not necessarily indicate that he admitted fault, but is consistent with the behaviour to be expected of a driver whose passenger and de facto has been seriously injured. There is evidence that he saw a solicitor on the night of the accident. That also does not lead to the conclusion that he admitted guilt of anything. He may well have been aware at that time of the drink driving charges that he ultimately faced, and of the possibility of more serious charges. No inference can be drawn against a person, even in a civil trial, because they exercise important legal rights, such has the right to consult a solicitor, to remain silent, or, as in this case, to read a prepared written statement in the course of an electronically recorded interview with police. His mental illness and feelings of guilt may also be a reason why he chose not to present exculpatory evidence at the time, as he seems to have expressed a desire to be punished.

20 The first defendant voluntarily participated in an electronically recorded record of interview with Senior Constable McIntyre on 27 July 2004. In this, he read a handwritten statement (also in evidence) dated 26 April 2004, which he says was prepared on the advice of his solicitor, who also advised him to say nothing more. Again, I hesitate to draw any inference against him, even in a civil case, from his exercise of an important civil right. However, this statement does not mention that his wheel was clipped, or any other involvement of another vehicle. The COPS entry made by Senior Constable McIntyre, at a date of which he is not certain, as it could have been any date between 25 April and much later in 2004, also does not mention any other vehicle and says categorically that the first defendant denied that another vehicle clipped his front wheel.

21 Senior Constable McIntyre says that he decided not to take further proceedings against the first defendant on advice from his Commander.

22 Mr Stitt QC submits that because the first defendant did not mention exculpatory material to the police when he was facing the possibility of serious charges, I should infer that no other vehicle was involved. In my view, for reasons I state, I do not make that inference, because of the corroboration I find for Mr Wilkins’ original version of events. The mere presence of another vehicle is not, as will become apparent, sufficient to exculpate the first defendant in these circumstances. In any event, there is other evidence from which I can infer reasons why the first defendant might wish to subject himself to a penalty, namely his mental illness and guilt, or that he might not wish to involve another vehicle, and also, possibly, his concern not to offend or alienate the Hell’s Angels.

Physical evidence and expert opinion

23 The physical evidence consists almost entirely of the observations made, and the photographs taken, by Senior Constable McIntyre immediately after the event. The photographs are in evidence. They were also made available to the expert qualified by the first defendant, Mr Keramidas.

24 Mr Keramidas prepared an extensive report for the first defendant, though he was called by the plaintiff. On being told of the evidence of Mr Wilkins, who was called after he had been excused, he considered himself obliged under the Code of Practice to prepare a supplementary report, which was admitted into evidence without objection. He was cross-examined on both reports. He was not shaken in his conclusion, from the physical evidence alone, that at the time the fall started, the first defendant's motorcycle was travelling at about 75 kilometres per hour, and that it was thrown off balance for one of two reasons. The first was that the first defendant steered violently to the right. (Though Mr Keramidas properly did not speculate as to the reason, it could have been possibly in order to avoid an obstacle.) The second was that his front wheel had been "clipped" by the rear wheel of another cycle travelling in front of him. Mr Keramidas could not ascribe a higher probability to one reason over the other.

25 Mr Keramidas agreed that scuff marks on the front tyre of the first defendant's motorcycle, as shown in photographs, were consistent with a clipping, but were not determinative of that issue, and he was of the view that a similar mark on the rear tyre of the first defendant's motorcycle was more likely the result of the tyre coming into contact with the road surface while it was sliding laterally from the point of fall to its final resting place.

26 Mr Keramidas was of the view that at the time the first defendant's motorcycle became unbalanced, it was close to the centre of the carriageway, which was marked by unbroken parallel white lines, or slightly on the wrong side of that line.

27 Mr Keramidas’s report was a version prepared after he was directed to disregard the contents of the statement of Mr Wilkins, as recorded in the police notebook. Although one of the diagrams prepared by this expert as part of his report may, on one view of it, have been ambiguous, I did not find it so, and after Mr Keramidas clarified the significance of the way he had taken that the physical evidence into account, I am satisfied that there was no possible ambiguity. I accept Mr Keramidas’ opinion and its conclusions without reservation. No other expert evidence was called. I find that the salient points of that report to be:

1. While the first defendant’s motorcycle was still travelling east on the straight part of Railway Street, one of two possible causes led to it falling on its left side so that a part of it, most probably the footpeg, which was encased in black rubber, came in contact with the road surface.

2. This black mark continued unbroken in a slight arc for about 15 metres from the eastern end of this line to a point some metres from the edge of the sealed road, and from that point, there was a series of intermittent gouge marks in more or less a straight line extending to the edge of the sealed road.
3. Parallel to this line of gouge marks was another line of what might be called scratch marks, also intermittent.

4. The beginning of the unbroken black line from its origin, which was slightly to the wrong side of the centreline, and about 25 metres west of the midpoint of the intersection with Glenbrook Road, marked the point where the motorcycle fell to the ground. This point, indicated by police marker 1, was some 10-15 metres east of the point where the rider lost control. This point is just at the beginning of the left hand curve, so the point where the rider lost control was on the straight part of Railway Street.

5. The gouge and scratch marks were caused by parts of the first defendant’s motorcycle coming in contact with the road surface.

6. There were no skid or tyre marks on the road surface which the police could relate to this accident, suggesting that the first defendant’s motorcycle had not lost traction.

7. The first defendant’s motorcycle was travelling at about 75 km/h when it went out of control.

8. The cause of loss of control was either a violent oversteer, or another motorcycle in front and to the left of the first defendant motorcycle “clipping” the front tyre of the first defendant’s motorcycle.

Eyewitness evidence

28 The only eyewitness to give evidence was Mr Wilkins, and his evidence in court differed from what he told police on 25 April 2004 in significant respects. Much turns on my assessment of his credit.

29 Police and ambulance arrived at the scene very shortly after the incident. Ambulance officers treated the plaintiff and the first defendant. Both were taken to the Nepean Hospital, and the plaintiff was subsequently airlifted to the Prince of Wales Hospital.

30 Senior Constable Wilkinson, who has subsequently left the police, was the officer in charge of the scene. When he realised the extent of the injuries to the plaintiff, he determined that the incident was serious. He marked off a crime scene and called the crash investigation unit at Parramatta. Subsequently Senior Constable McIntyre and other officers from that unit attended the scene. Senior Constable McIntyre made observations and took at least 40 photographs.

31 Senior Constable Wilkinson also spoke to several people in the vicinity and asked if anyone had seen the incident. Mr Gary Wilkins volunteered information. Senior Constable wrote a record of this information in his police notebook. Mr Wilkins drew a rough sketch plan in the notebook and signed each page of this statement and the sketch plan. A copy of this document was provided to Senior Constable McIntyre when he arrived at the scene. A copy of the relevant part of the notebook is in evidence. Mr Wilkins remained at the scene. He says he was asked by Senior Constable McIntyre to wait in the police car and answer some further questions. His evidence is that Senior Constable McIntyre did not return and that ultimately he left the scene. He also said that, before Senior Constable Wilkinson spoke to him, a person who, he said, was not a member of the Hell’s Angels, but was associated with them, told him not to say anything to the police.

32 What is recorded in the notebook largely coincides with the evidence he gave in court, but three paragraphs differ significantly. I shall return to this issue.

33 Both Senior Constable Wilkinson and Senior Constable McIntyre gave evidence that after the plaintiff and the first defendant had been taken to hospital, some bystander approached them with a vehicle and sought to take the first defendant's motorcycle away from the scene. Mr Wilkins concurred, and identified this person as someone he knew, who was not a member of the Hell’s Angels, but who was associated with that club. Senior Constable McIntyre required the motorcycle for forensic examination, and it appears that there was a dispute between the police officers and the other people about the removal of the motorcycle. It was in fact taken to Springwood Police Station and examined by a police expert. It was found to have no mechanical defects that could have contributed to the accident.

34 Senior Constable McIntyre said that after he returned to his base at Parramatta, he contacted Mr Wilkins by telephone and Mr Wilkins confirmed the contents of the statement he had given to Senior Constable Wilkinson. Mr Wilkins denies this. I accept McIntyre’s version.

35 Mr Wilkins says that, after he became aware of the seriousness of the injuries to the plaintiff, he realised that it was foolish of him to have told lies to the police, even though, in his evidence, he said that he told lies to the police as a matter of course. Indeed, he conceded that to him it was second nature to tell lies. His evidence was that he then telephoned Senior Constable McIntyre and asked to withdraw his statement. He did not tell the officer that the contents of the statement were false.

36 Senior Constable McIntyre was questioned about a statement which a Mr Terry Jamison, an insurance investigator, claimed to have taken from him in October 2004 at the headquarters of the Crash Investigation Unit in Parramatta. In this statement Senior Constable McIntyre says that Mr Wilkins had telephoned him and asked if he could withdraw the statement because he was being harassed by members of the Hell’s Angels. Senior Constable McIntyre says that he does not remember any conversation with Mr Jamison, but that he speaks to insurance investigators frequently and that such a conversation could have taken place. It is not suggested that he ever signed a statement given to Mr Jamison.

37 I find that Wilkins did telephone McIntyre with this request. It was suggested to Mr Wilkins that he had in fact been harassed or otherwise subjected to pressure by the Hell’s Angels. He denied this, and it is not necessary, given the findings I make, for me to decide that.

38 Neither the plaintiff nor the first defendant called Mr Wilkins. The second defendant called him. I find that he was, on important issues, not reliable, and that, for reasons I shall outline, his evidence in court on those matters should not be accepted.

39 The significant parts of his evidence are as follows:

(Evidence in chief)

Q. So you were following him?
A. Yes.

Q. How close behind him were you following him around Railway Street?
A. Pretty close I guess. Probably 4 or 5 feet; 6 feet, 7 feet, yeah.

Q. As he went down Railway Street and you were following him, what speed were you travelling at?
A. Initially it was a fairly slow speed.

Q. What do you mean by that?
A. Well, when we took off it was a slow and steady speed because we were going sort of like sorting out and whatever, and then once we got to - looking at this map here, I guess by the time we got to about Levy Street, or Levi, Levy, just opened up the throttle and went fast from there. Now if you were to ask me how fast, I don't know, because I wasn't actually looking at the speedo, but I do know that probably in third gear - second or third gear - and accelerating.

Q. Were you accelerating hard?
A. Yes.

Q. Was Borgy [the first defendant] accelerating hard?
A. I was following Borgy, yeah.

Q. Once you started accelerating hard from Levy Street you then obviously picked up speed?
A. Obviously, yes.

Q. Are you able to indicate approximately the speed that you reached?
A. No.

OBJECTION(JONES).

GLEESON: He said "No", your Honour.

WITNESS: Yes, no.

HIS HONOUR: He said he couldn't, I think.

WITNESS: No, I'm not a - I mean, if I was looking at the speedo I would probably say, "Yes, I was doing", but no. I just know that it was fast.

STITT

Q. Sorry, I didn't hear that?
A. It was fast. You know, like probably - to be honest, we were probably speeding.

GLEESON: What?

HIS HONOUR: "We were probably speeding."

WITNESS: Yes.

STITT

Q. As you went down Railway Street, what then happened?
A. I was following John and really only looking at John, not looking at the road, not looking ahead, not looking around, and probably - looking at this map - I didn't even know there was a street there, but probably around about King Street, or maybe just before it--

JONES: Your Honour, I object to this. He's looking at map and refreshing his memory from that, but he didn't know the street existed.

HIS HONOUR: Just turn the map over for the time being, Mr Wilkins, and just tell us what happened.

A. Well prior to - we were going down the hill. It was probably the first time and the only time throughout the day that we actually accelerated. It had been a very slow and steady - to be honest, boring drive up to there. And that was probably the first time during the day we actually openly accelerated and went "yee ha" down the hill. I recall Johnny making a noise. I heard him over the engine of the bike. He backed off and I heard him yell. I can't be sure what he yelled. I think I said in one statement that he swore, but it was an obvious concern. And I sort of looked up when I saw him concerned, and at the same time braked.

Q. You braked?
A. I braked, because obviously there was a situation.

STITT
Q. What did you see when you looked up?
A. Nothing to alarm me initially. There was Johnny [the first defendant], with Edith [the plaintiff] on the back and, you know, you saw the long black hair and the black leather jacket off the back of the bike from Edith. She looked quite uncomfortable perched on the back of the bike, but that was pretty much all I saw. And then I noticed that there was a corner, so I started to manoeuvre around the corner.

Q. How did you do that?
A. By leaning.

Q. Which way?
A. I leaned the bike to the left.

Q. As you performed that manoeuvre, what did you observe about Borgy?
A. He just seemed to go straight ahead, then obviously fought with the bike, because it laid down and I thought "he's gone"; was my first thought. I thought, "Oh, my God, he's gone." But then he seemed to get it up again, and I thought, "He's got it," and then it went down again, and I thought, "He's gone." Then it got up again the third time, but it was now going very fast and wobbly and hit the dirt. And I was sort of at the same time that I was watching all of that I was still being aware of where I was going. In fact there was a park just around the corner and I went off the road and onto the park. And I stopped my bike as he was still tumbling on the embankment.

Q. When you say "tumbling", what do mean by that?
A. I - well, I'll never forget seeing Edith like a rag doll still stuck on the bike. Like she didn't get thrown from the bike. She was actually like glued to the bike and the bike was cartwheeling.

Q. Cartwheeling?
A. Flipping over, yeah, and Edith was on it at the time that it was doing that. Then it sort of - then John came off on the embankment. I saw John come off on the embankment, but Edith was still on - or with the bike. And then I saw the bike sort of do a last flip over like that sort of come down bang onto Edith. Then that was it, yeah.

Q. Before Borgy lost the bike, as you've described it, did you see any other bike collide with him?
A. No.

40 In cross-examination by Mr Gleeson QC he said:

Q. So when you said "and then I noticed there was a corner so I started to manoeuvre around the corner", you meant by that, did you, that you were on the corner and off the straight, if I could put it that way?
A. Yes.

Q. Because you said "How did you do that?" - that is, manoeuvre around the corner - you said, "By leaning." "Which way?" "I leaned the bike to the left." So that suggests that you were going round the corner otherwise you wouldn't lean the bike to the left, would you?
A. Correct.

Q. So where it is that happened, Mr Wilkins, it happened at the time that you were going around the corner of this road in Railway Street. Is that right?
A. What happened to Johnny? Yes, and what caused him to go off. It would have happened moments before I turned, yeah.

Q. You started to manoeuvre around the corner. That's right?
A. Correct.

Q. You leaned the bike to the left.
A. Correct.

Q. Meaning that you're in the corner.
A. Correct.

Q. And then you observed - you said he was in front of you.
A. Yes.

Q. So he must have been further into the corner than you.
A. Yes.

Q. But he seemed to go straight ahead.
A. Correct.

Q. He fought with the bike because it laid down, and there were three laid downs you've described.
A. Yes.

Q. The first laid down - how far did it lay down to its left side in degrees? 10 degrees? 20 degrees? Right angles to the--
A. No, with a Harley they've got - on the left-hand side they've got the big primary drive case which hangs out quite substantially so he's probably only down I guess - I'm not a scientist but I guess 20 degrees, it wasn't like flat on the ground, it was down onto the crankcase and sparks flying off.

Q. So there he is in the corner leaning 20 degrees to his left.
A. Yeah, he was leaning over scraping. He was down, yeah.

Q. He was down.
A. Yeah.
Q. If he was down scraping, he'd have to be down more than 20 degrees as you well know.
A. Well, perhaps, I don't know. I'm just saying that the engine case was on the ground. It was scraping. Something on the bike was scraping. He was low.

Q. Then he came up. Is that right?
A. Correct.

Q. Then he went down again.
A. Correct.

Q. And of course by this time he's well into the corner.
A. Yes.

Q. And he went down again to the left.
A. You're talking about the second time?

Q. The second time, yes.
A. Correct.

Q. Again scraping the road.
A. Yes.

Q. And he came up again.
A. Yes.

Q. Proceeded a bit further and then went down again.
A. No, he's wobbled straight ahead into the dirt and the thing was out of control heading towards the dirt, then he hit the embankment.

Q. Just a moment, you said then he'd got up again the third time.
A. No, second time. He went down once, he went down twice, and then he stood up and then went straight into the embankment. . . .
A. The third time was actually off the road. It hit the road twice. He went off the road. He actually low-sided it into the dirt so I guess you can class it as down again and slid straight into the embankment.

Q. So by the time he went down for the last time he was well into the bank, well into the curve.
A. He was off the curve. He was off in the dirt.

HIS HONOUR

Q. He was off the sealed surface.
A. Yes.

GLEESON

Q. So for the first two times--
A. He was on the road.

Q. --he was into the curve, well into the curve.
A. The first two times he was on the road and the third time--

Q. Into the curve. The curved part of the road.
A. Yes.

HIS HONOUR: The sealed part we're talking about.

STITT: You're saying the sealed part of the road?

HIS HONOUR: Yes.

GLEESON

Q. Into the curve, meaning the sealed part of the road.
A. Yes.

Q. So from the first time he went down and you said his engine casing was on the road, he came up, and he went down again, engine casing on the road, came up, and then the third time he's out onto the dirt.
A. Correct.

Q. When you said:
"It laid down and I thought 'he's gone'; was my first thought. I thought, 'Oh, my God, he's gone.' But then he seemed to get it up again, and I thought, 'He's got it,'"
That mean it came upright.
A. Mm-hm.

Q. Then it went down again. Did the casing hit the road the second time?
A. It did. Or appeared to, yeah.

Q. Pardon?
A. Or appeared to. It was out of control; it was ..(not transcribable)..

Q. Did the casing hit the road or not?
A. I don't know.

Q. Well you were there watching it, weren't you?
A. I would say yes, it did.

Q. Pardon?
A. I would say yes, it did. Keep in mind at the same time I'm still negotiating the bend myself.

Q. And you're behind him?
A. Correct.

Q. So there were times at this negotiating the bend when he's both over - his engine case is hitting the ground and he's upright and continuing on?
A. Yes. Can I just say like I've said "engine case"-- cab.

HIS HONOUR: No, just wait, please, Mr Wilkins. Mr Stitt can clarify anything that needs to be cleared up later.

GLEESON

Q. Mr Wilkins, you had a look at this road after the accident, didn't you?.
A. I did.

Q. You saw a thin long black mark on the road, didn't you?
A. I did.

Q. And that was a continuous line, wasn't it?
A. I think so, yes.

Q. Can I suggest to you that it is completely inconsistent with your scenario of him going down and up and down and up?
A. My first opinion was that that black line was either from his boot or from his black foot pegs, because he has black foot pegs.

Q. And it was continuous, wasn't it?
A. It was, so it probably--

Q. So once it went down, it stayed down, didn't it?
A. His foot may have done. . . .

Q. All this happened by the way in the space of a couple of seconds, didn't it?
A. It did.

Q. And you've said in your evidence that the speed of Johnny and yourself was about 70 to 80 kms?
A. Yes.

Q. I'll put this to you, that Johnny lost control of his bike for whatever reason well before the corner. What do you say about that?
A. Yes.

Q. You agree?
A. It's two; it's a double bend, double apex.

Q. I'm suggesting to you that he lost control well before the double bend if that's the way you want to describe it?
A. No.

Q. That he lost control on the straight?
A. No.

Q. I suggest to you that the bike did not lay down on the roadway two times in the way you've described?
A. No.

Q. I suggest to you that what you've described is impossible and you know it.
A. No.

Q. I suggest to you that you are making it up.
A. No.

Q. I suggest to you that you're making it up in order to get out of the statement that you made to the police?
A. No.

Q. I suggest to you that once the bike went down, it stayed down?
A. No.

Q. I suggest to you that the speed you suggested it was going, it could not have carried out the manoeuvres that you say in the time frame?
A. That's possible.

Q. Pardon?
A. That's possible.

Q. If it could not have carried out the manoeuvre you have described in the time frame, then your description must be inaccurate, musn't it?
A. The speed could be inaccurate, correct

41 Paragraphs 6-13 of the statement recorded in the police notebook are as follows:

6. I think we were doing between 70-80 km/hr. I was on the inside (left) side of John. John was driving a yellow dynawide glide Harley Davidson WXB20.
7. As we approached a sweeping left hand bend, the bike to the inside of Jordan in front of him and drifted out towards the centre line, taking John's front wheel out. The bikes touched.
8. John's bike came down. Low side left. John had a pillion passenger who is his de facto wife. Her name is Edith.
9. The bike slid along the bitumen for around 20 metres. The bike hit the dirt and flipped. I saw Edith go on her back first sliding along the ground and hit her head on the stormwater drain. Her body did a complete flip and the bike ended up on top of her legs.
10. I pulled up and directed the rest of the 800 bikes to continue through.
11. I don't remember the registration or what type of bike clipped John's bike.
12. I got off my bike and called the ambulance.
13. I don't know the bike that got to the front as there is always a mad rush to get to the front when the ride resumes. The bike that clipped him wouldn't have realised that they had connected.

42 For reasons I shall state, I consider that the version of events given by Mr Wilkins to Senior Constable Wilkinson at the scene was true and is the most accurate account of what happened.

43 In his evidence in chief, Mr Wilkins said the statement that had been recorded in the police notebook was false, in at least two material particulars. The first was the content of paragraph 7; the second was the content of paragraphs 11 and 13.

44 The version of events given by Mr Wilkins to the police at the scene is totally consistent with the reconstruction by Mr Keramidas, who observed the physical marks on the road and the photographs taken by Senior Constable McIntyre. This shows an initial contact with the road for a continuous 15 metres or so, marked by a narrow black mark on the road, and then a series of intermittent gouge and scratch marks on the road. Mr Keramidas noted specifically there would have been times when the downward pressure of the bike on the road surface would have been absent or insignificant.

45 In his evidence in chief Mr Wilkins said that he had told these lies to the police in order to protect the first defendant, who was a close friend.

46 Mr Wilkins admitted that, at a conference in the chambers of Mr Gleeson QC, in 2005, he had told Mr Gleeson, Mr Smith, their instructing solicitor and an employee of the first defendant’s insurer that the account he had given to the police was true.

Conclusion as to cause of plaintiff's injury

47 On the balance of probabilities, I find that the account given by Mr Wilkins to the police, and to the first defendant’s legal representatives was true, and that the account he gave in court was false. It is not necessary for me to find positively what the reason for his change in attitude was, but I am satisfied that it did occur. My conclusion is based on

1. The very short time that elapsed between the incident and the information recorded by Senior Constable Wilkinson;
2. The coherence and convincing nature of the total account given by Mr Wilkins to the police;

3. The records of the ambulance and the triage nurse that the first defendant had said that the front wheel of his cycle had been clipped;

4. Mr Wilkins’ evidence that he had not discussed the event with the first defendant until the following day, so there was little possibility that Wilkins and the first defendant had concocted the story;

5. The conclusion of Mr Keramidas that clipping of the wheel was one of two possible causes of the first defendant losing control of his cycle.

6. The further evidence of Mr Keramidas that the version given by Mr Wilkins in his evidence in chief and cross-examination was not possible, given the objective physical evidence recorded by the police and observed personally by him, but that the version recorded in the police notebook was totally consistent with the opinion he had formed, based on the physical evidence.

7. Mr Keramidas’s opinion that the marks on the front tyre of the first defendant’s motor cycle were consistent with, though not determinative of, another motorcycle “clipping’ the front tyre.

48 Mr Stitt QC urged that I should take seriously what, in Fox v Percy [2003] HCA 22; 214 CLR 118, where, at [31], Gleeson CJ, Gummow and Kirby JJ said: “Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.” I have attempted to do so here.

49 All the factors mentioned above, taken in combination, lead me to draw the inference that it is more probable than not, that a second motorcycle, being ridden in front of and to the left of the first defendant, did “clip” his front wheel and cause the cycle to lose balance.

50 It does not follow that, because another vehicle clipped the first defendant’s front wheel, that there was any fault of the driver of that vehicle. No evidence is before me that there was any such fault, except a vague statement that it “drifted to the right”, but that does not indicate any fault on the part of the rider. The first defendant was behind this vehicle and had the duty to keep a proper lookout. The burden of proof of such fault lies on the party or parties seeking to rely on it. Therefore, in the absence of any evidence that there was any behaviour on the part of the rider of the cycle in front that amounts to a breach of duty to the plaintiff, there can be no basis for finding the second defendant liable to the plaintiff. Similarly, there is no evidence from which I could find that the driver of the other vehicle broke any duty he or she owed to the first defendant, and therefore the second defendant is not liable to the first defendant on the cross-claim.

The plaintiff

51 The plaintiff also did not give evidence, though she was briefly in court. In evidence there is a medical certificate explaining why she had become psychiatrically distressed. In any event, hospital records that are in evidence indicate that at no time did she have any memory of the accident, or of a significant period before and after it. This would be consistent with her head injuries. Nevertheless, I cannot speculate as to what she might have said, or as to what her state of mind at any relevant time might have been.

Liability of the first defendant to the plaintiff

52 I must determine whether the first defendant was in breach of any duty of care owed to the plaintiff. There are three possible breaches of duty.

Riding on the wrong side of the road

53 Although I have found that the point at which the body, as opposed to the tyres, of the first defendant’s motorcycle came in contact with the road surface was on the wrong side of the road, there is no evidence to establish that the first defendant ever rode the motorcycle on the wrong side of the road.

Excessive Speed

54 It is not disputed that relevant speed limit was 50 km/h. Mr Keramidas’s estimate of the speed of the first defendant’s cycle at the point where it lost control was approximately 75 km/h, and while Mr Wilkins could not be certain, he agreed that both he and the first defendant were accelerating and were riding fast, as the leaders of the ride had disappeared. He agreed that a speed of 75 km/h or more was possible. Only the first defendant himself put his speed at below the speed limit, and in the light of the other evidence, I reject this estimate.

Need for control of motorcycle

55 Mr Wilkins, himself a very experienced cyclist, gave unchallenged evidence that the first defendant was a very experienced and skilful rider. Nevertheless, his evidence was also that the first defendant lost control of the cycle.

56 Given the speed of the first defendant’s cycle, I must infer that the rider, despite his skill and experience, was far less able to control the motorcycle and take action necessary to avoid the vehicle that clipped his tyre, or to take remedial action. I find that the first defendant was riding at an excessive speed and that this was a significant causal factor leading to the plaintiff’s injuries.

First defendant’s blood alcohol content

57 The first defendant admitted that, when he was admitted to the Nepean Hospital, his blood alcohol reading was 0.083. It was argued that it must necessarily, at the time of the accident, have been higher. He was in fact charged with a drink driving offence as a result, and that offence was found proved.

58 He relies on the expert evidence of Professor Jason White. That evidence was admitted provisionally, on the condition that the factual assumptions on which it was based be established. Therefore the probative value of Professor White’s evidence depends on whether I find that the factual assumptions upon which he based his opinion are established on the balance of probabilities. Some important assumptions are, I find, not based on proven facts, and for that reason parts of his opinion are not admissible; see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.

59 Professor White assumed that the first defendant had not consumed alcohol after 2 pm, and that therefore all the alcohol that he had consumed had been absorbed. Mr Wilkins’ evidence was that the first defendant had been drinking bourbon and coca-cola at the Lapstone Hotel, and that the riders did not leave that place until about 3 pm. The plaintiff submits that, in the light of the evidence, it is at least possible that the first defendant’s blood alcohol content was lower at the time of the accident than at the time the sample was taken at the hospital. For this reason alone I could not be satisfied on the balance of probabilities that the first defendant’s consumption of alcohol contributed causally to the loss of control, because, although the first defendant committed the offence by having above the prescribed content of alcohol in his blood when he reached hospital, it is not established on the balance of probabilities that the alcohol he consumed shortly before the loss of control in fact affected his ability to control the motorcycle.

60 Professor White is clearly of the opinion that a person whose blood alcohol content was 0.08 or higher would have been affected by the alcohol to the extent of impairment of perception and judgment, both of which are essential for the driver of any vehicle. He then offers an opinion based on the assumption that the first defendant was a heavy drinker, but there is no evidence before me to establish on the balance of probabilities that he was a heavy drinker. There is evidence that he had a high level of certain liver enzymes, which are consistent with, but not determinative of, heavy consumption of alcohol.

61 Mr Wilkins, who was with him on the day, and who knew him well, said he was not a heavy drinker and that he saw Mr Tvedsborg consume only one alcoholic drink at the Wallacia Hotel and at least one at the Lapstone Hotel on that day. It is clear that, at some time, he must have consumed more alcohol than that to achieve the blood alcohol reading admitted by him. What are not established on the balance of probabilities are the time at which that alcohol was consumed, and therefore the extent of absorption of that alcohol, and consequently, the extent to which alcohol impaired his capacity to ride, if at all. Mr Wilkins, at least in terms of his evidence in court, is not very reliable. There is no other evidence that the first defendant could be expected to have a greater than normal tolerance for alcohol, to the extent that his judgment and skill would be less impaired than normal.

Possible defences

Voluntary assumption of risk

62 It was submitted by the defendants that the poker run was a “motor sport activity”, enlivening MACA s 140. This section reads (omitting irrelevant words):

(1) Except as provided by subsection (2), the defence of volenti non fit injuria is not available in proceedings for damages arising from a motor accident but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured person or deceased person was negligent in failing to take sufficient care for his or her own safety.

(2) If a motor accident occurs while a motor vehicle is engaged in motor racing, the defence of volenti non fit injuria is available in proceedings for damages brought in respect of the death of or injury to:

(b) a passenger in the vehicle so engaged, other than a passenger who is less than 18 years of age or who otherwise lacked capacity to consent to be a voluntary passenger.

(3) For the purposes of subsection (2), a motor vehicle is engaged in motor racing if it is participating in:

(a) an organised motor sports event. . . .

63 There is no authority that counsel or I could find as to what constitutes “an organised motor sports event”. The only evidence about the nature of the activity was from Mr Wilkins. This evidence was not challenged by any party. It was that the poker run is a social event, seeking to attract couples and family groups, albeit in large numbers. Children took part. Mr Wilkins said that in 2004 there were extensive delays and that the group moved relatively slowly. There were marshals, and I could not find that there was any jostling for position, though some riders, such as the first defendant, seemed eager to be in the first group of riders. There was no race. There was nothing even resembling a competitive rally. The event was entirely social and non-competitive. The only competition of which there was evidence was competition to get the best poker hand. Nevertheless, the event was organised, and it was a motor sports activity within the ordinary meaning of those words.

64 Although the defence of volenti non fit injuria is therefore available, there is no obligation on the court to find that it was made out. In order to do so it would be necessary for the party seeking to rely on the defence to establish what the risk assumed was. The second defendant suggested that it was a risk, which, in the circumstances, had not materialised, and the first defendant adopted the argument. I find that the defence has not been made out.

Contributory negligence.

65 The Motor Accidents Compensation Act 1999, s 138 provides (omitting irrelevant words);

(2) A finding of contributory negligence must be made in the following cases:

(a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident , unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident,

(b) where:

(i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident , a voluntary passenger in or on a motor vehicle , and

(ii) the driver ’s ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment,

unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle ,

(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(4) The court must state its reasons for determining the particular percentage.

(7) For the purposes of this section, an "alcohol or other drug-related offence" is:

(a) an offence of driving a motor vehicle with a particular concentration of alcohol or other drug in the person’s blood, or

66 In this case, because of the application of the Crimes (Sentencing Procedure) Act 1999 s 10, the first defendant was not convicted of an alcohol related offence, although the essential elements of such an offence were proved.

67 It was argued that, in riding as a pillion passenger on a motorcycle being ridden by a person affected by alcohol, the plaintiff, under the statutory regime, failed to take care for her own safety. The lack of evidence as to how much alcohol the first defendant consumed and when he consumed it is not assisted by the plaintiff’s lack of memory. It is simply impossible to know what she knew about the first defendant’s consumption of alcohol and how he was affected by it. For that reason I have not been able to find that there was a breach of duty of care. Even if the plaintiff were aware that the first defendant had been affected by alcohol to the extent that his ability to control the motor cycle had been impaired, it would be relevant that the Lapstone Hotel is outside the metropolitan area and that it was a public holiday when public transport was likely to be limited.

68 I cannot find that there was any contributory negligence, but if the section did compel me to find contributory negligence, because I could not establish that that contributory negligence contributed to the plaintiff’s injury, I would have taken the same approach as was approved by the Court of Appeal in Nicholson v Nicholson (1994) 35 NSWLR 308 and assessed the percentage of contributory negligence at zero.

1. Verdict for the plaintiff against the first defendant.

2. No finding of contributory negligence on the part of the plaintiff.

3. Verdict for the second defendant against the plaintiff.

4. Verdict for the cross defendant against the cross claimant.

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