Wilding v Burgemeister - [2012] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WILDING v BURGEMEISTER & ANOR
[2012] SADC 152
Reasons for Decision of The Honourable Justice Nicholson
19 November 2012
ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - IN GENERAL
The plaintiff suffered serious personal injury after falling off his bicycle. He alleged that the accident was caused by one or more of three dogs owned by the defendants and relied on the cause of action available pursuant to s66 of the Dog and Cat Management Act 1995 (SA).
The central issues concerned whether one or more of the defendants’ dogs caused or materially contributed to the plaintiff’s injuries and whether one or both defendants were the owner (keeper) of any such dog or dogs.
Held: plaintiff’s claim dismissed.
Dog and Cat Management Act 1995 (SA) s5, s6, s66; Evidence Act 1929 s45A; Cross on Evidence 8th Australian ed, JD Heydon; Civil Liability Act 1936 s52; Wrongs Act 1936 24B, referred to.
Elliot & Anor v Andrew [2009] SADC 31; Keeffe v McLean-Carr and Pacific Waste Management Pty Ltd (1993) 169 LSJS 74; Jones v Dunkel (1959) 101 CLR 298; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267; Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170; Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712, 1 WLR 948; Morris v London Iron & Steel Co Ltd [1988] QB 493; Pickford v Imperial Chemical Industries PLC [1998] 3 All ER 462; Maher-Smith v Gaw [1969] VR 371; Wheeler v Page and Harris (1982) 31 SASR 1; Harradine v Bishop [2003] SADC 111; Allan v Fletcher [2001] SASC 167; Rayner v Mecozzi & Vu [2000] SADC 5; Woods v Leane [2002] SADC 2; Varnas v Peake [2001] SASC 330, considered.

WILDING v BURGEMEISTER & ANOR
[2012] SADC 152
Civil
NICHOLSON J.
Introduction

The plaintiff, John Wilding, suffered serious personal injury when he fell from his bicycle on 28 April 2004. He alleges that the accident was caused by one or more of three dogs owned by the defendants.
The accident occurred when Mr Wilding was riding his bicycle along the Linear Park track north of and towards the Adelaide central business district between, approximately, 6.00pm to 6.30pm. Approximately five kilometres from the point where the plaintiff entered the track, he approached and passed the two defendants. On Mr Wilding’s case, as pleaded, some fifty to seventy meters after passing the defendants “two or more dogs… suddenly appeared in front of him on the… track.”[1] Mr Wilding, “in an attempt to avoid colliding with the… dogs… attempted to swerve around them, however, he collided with one of the dogs and was thrown from his bicycle… .”[2]
[1] Statement of claim, paragraph [3].
[2] Statement of claim, paragraph [4].
The first defendant, Richard Burgemeister, is the owner of two dogs, Buster and Spy. Buster is a long-coated German Shepherd and Spy[3] is a black Border Collie or Heeler cross. In his filed Defence it is alleged that, at all material times, the two dogs were “under [his] effective control by command, they being in close proximity to him and he being able to call and see the dogs… .” It is further alleged that Mr Wilding did not collide with any dog, rather, “the plaintiff, of his own volition, swerved from the… track, braking in the process, avoiding the First and Second Defendants and, when attempting to rejoin the… track, the Plaintiff hit a verge between the… track and surrounding ground, losing control of his bicycle and falling to the ground”.[4] Mr Burgemeister also pleaded, in the alternative, a defence in the nature of contributory negligence.[5]
[3] Exhibit D1-21 is a photograph of either Buster or a German Shepherd owned by Mr Burgemeister prior to Buster and a photograph of Spy. Whether the German Shepherd pictured is Buster or the previous dog is of no moment in the circumstances of this case. The photograph shows a likeness of Buster sufficient for the purpose of this trial.
[4] Defence, paragraph [1.3].
[5] Defence, paragraph [2].
The second defendant, Marianne Beger, is the owner of a brown-rusty coloured Heeler cross named Bluey.[6] In her filed Defence it is alleged that, at all material times, Bluey was walking at “heel”, was under effective control by command, and was in close proximity to Ms Beger such that she was able to see the dog.[7] It is alleged in the defence that Mr Wilding approached the defendants from behind at speed and swerved off the track to avoid the defendants. When attempting to ride back onto the bitumen track Mr Wilding lost control of the bicycle and fell to the ground.[8] Ms Beger also raised, in the alternative, allegations of contributory negligence and the further alternative that, if it were to be found that Mr Wilding collided with a dog, the dog with which he collided was one of the two dogs owned by the first defendant.
[6]    Exhibit D2-24 is a photograph of Bluey.
[7]    Defence of the second defendant, paragraph [5.1.1].
[8]    Defence of the second defendant, paragraphs [5.1.2] and [5.1.3].
Other than the parties, there was no eyewitness of the accident. Other persons, including police officer Mr Anthony Romanas and a Ms Jo Weathersbee, attended at the scene shortly after the accident. Consequently, the reliability of the account given by each of the parties and, perhaps, matters of credit will be fundamental considerations when determining liability in this matter.
The Linear Park bike track is a 35-kilometre cycling and walking trail that runs from the sea to the Adelaide foothills. It is of variable width. It runs in part, somewhat adjacent to, that is, so as to by-pass the Adelaide central business district (“the city”). Its northern and southern pathways are separated by the River Torrens. The accident occurred on the southern side of the river at a location where the track consists of bitumen about 2.5 metres wide with a firm or packed earth verge on each side.
It is common ground that the accident occurred on the city side of the Stephen Terrace Bridge near Player Avenue in the suburb of Gilberton.[9] In the vicinity of the accident scene, as one faces towards the city, there is an embankment very close to which is a stone wall on the left side of the bitumen track. On the right side of the bitumen track the earth and undergrowth embankment shelves down towards the river. There are a number of gum trees on both sides of the track some of which are quite close to the edge of the bitumen.[10] Further along the track, towards the city and past the location of the accident is a footbridge that connects the northern and southern sides of the track. The precise location where Mr Wilding fell off his bicycle was in dispute during the trial.[11] The defendants maintained that it occurred in an area adjacent to the stone wall that can be seen in the photographs. However, the plaintiff said it occurred further along the track past this wall.
[9] Exhibit P1.
[10] Exhibits P10, P11, P12, D1-19, D1-20 and D2-28 are photographs that show the topography, the track itself and the nearby vegetation in the vicinity of the accident.
[11] According to the plaintiff the accident occurred near the point marked “A” on P11 and P12. According to the first defendant the accident occurred almost directly in front of the position of the man in the D1-20 photographs. According to the second defendant the accident occurred near the point marked “X” on D2-28. I have not found it necessary to make a finding about precisely where the accident occurred.
The Law
Mr Wilding’s case has not been framed in negligence at common law. Instead, Mr Wilding relies on the cause of action provided for by the Dog and Cat Management Act 1995 (SA). Section 66 of that Act provides as follows.[12]
[12] The note at the end of the section is part of the enactment.
66—Liability for dogs1
(1)The keeper of a dog is liable in tort for injury, damage or loss caused by the dog.
(2)It is not necessary for the plaintiff to establish—
(a) negligence; or
(b) knowledge of the dog's vicious, dangerous or mischievous propensity.
(3)However, the keeper's liability is subject to the following qualifications:
(a) if the injury, damage or loss results from provocation of the dog by a person other than the keeper, the keeper's liability (if any) will be decided according to the Wrongs Act 1936 principles;
(b) if the injury, damage or loss results from an attack on the dog by an animal for the control of which the keeper is not responsible, the keeper's liability (if any) will be decided according to the Wrongs Act 1936 principles;
(c) if the injury, damage or loss is caused to a trespasser on land on which the dog is kept, the keeper's liability (if any) will be decided according to the Wrongs Act 1936 principles;
(d) if the injury, damage or loss is caused while the dog is being used in the reasonable defence of a person or property, the keeper's liability (if any) will be determined according to the Wrongs Act 1936 principles;
(e) if the injury, damage or loss is caused while the dog is in the possession or control of a person without the keeper's consent, the keeper's liability (if any) will be determined according to the Wrongs Act 1936 principles;
(f) the keeper's liability (if any) is subject to any other defence available under the law of tort.
(4)If the plaintiff's negligence contributed to the injury, damage or loss, the damages will be reduced to the extent the court thinks just and equitable having regard to the plaintiff's share in responsibility for injury, damage or loss.
(5)In this section—
“keeper” of a dog means the owner of the dog, or if the owner is under 18 years of age, the child's parents or guardians, and includes a person into whose possession the dog has been delivered;
“provocation” means—
(a)teasing, tormenting or abusing the dog;
(b)any act of cruelty towards the dog;
(c)attacking the owner of the dog, or a person towards whom the dog could reasonably be expected to be protective, in front of the dog.
Note—
1 At common law, the keeper of an animal was strictly liable for injury caused by the animal if the animal was ferae naturae (ie an undomesticated animal). If the animal was mansuetae naturae (ie a domestic animal), liability was dependent on proof of scienter (ie knowledge of the animal's dangerous or mischievous propensity). These rules were abolished by Part 3 of the Civil Liability Act 1936 which provides that negligence is the basis of liability. This section, however, qualifies the Civil Liability Act 1936 principles by imposing strict liability in relation to dogs subject, however, to statutory qualifications.
It is common ground that each defendant, as owner, is the keeper of their respective dog(s) and will be subject to any liability that might arise pursuant to s66(1).[13]
[13] Dog and Cat Management Act 1995 ss66(5), s5 and s6.
It is not necessary for the plaintiff to establish negligence or knowledge by a defendant of a dog’s vicious, dangerous or mischievous propensity.[14] However, if the plaintiff’s own negligence contributed to the injury, damage or loss, damages will be reduced to the extent the court thinks just and equitable having regard to the plaintiff’s share in responsibility for the injury, damage or loss.[15]
[14] Sub-section 66(2).
[15] Sub-section 66(4).
In Elliot & Anor v Andrew[16] the interpretation of the word “caused” as used in ss66(1) was addressed. The defendant in that matter argued that the term should be construed to mean injury, damage or loss “caused by an attack”. His Honour Judge Clayton gave detailed consideration to this question. Ultimately, his Honour dismissed the defendant’s proposition with the following conclusion.
I reject the submission of defence counsel that subs 66(1) of the Dog and Cat Management Act 1995 should be construed to mean that a plaintiff can only recover in respect of an injury caused by an attack by a dog. In my opinion the plain words in subs 66(1) mean that all that is necessary is that the injury should be caused by a dog and an attack or other canine activity is unnecessary.[17]
[16] [2009] SADC 31.
[17] Elliot & Anor v Andrew [2009] SADC 31 at [12].
With respect, I agree with both the analysis and the conclusion reached by his Honour concerning this issue. Sub-section 66(1) is not to be limited to injury, damage or loss suffered as a result of an attack or similar canine behaviour. It is enough that injury, damage or loss has been “caused by the dog”. The word caused is to be interpreted by way of its normal connotation to mean “that which produces an effect, or the thing from which something results”.[18]
[18] Keeffe v McLean-Carr and Pacific Waste Management Pty Ltd (1993) 169 LSJS 74, Olsson J at 95. His Honour was there considering s52 of the Dog Control Act 1979, a precursor of the Dog and Cat Management Act 1995.
The factual question - what caused the accident? - is central to the issue of liability in this matter. Mr Wilding alleges that the accident and therefore his injury came about as a direct result of his collision with one of a group of dogs crossing his path and, as such, was caused by one or more of the defendants’ dogs. The defendants’ case is that the accident was caused by Mr Wilding losing control after he went off the bitumen track and whilst attempting to rejoin the bitumen track, without the involvement of any dog.
To succeed, Mr Wilding must prove facts from which a conclusion can be reached, in the sense of an actual persuasion on a balance of probabilities, that one, or more dogs caused or materially contributed to his injuries.[19] He must also prove that one or other of the defendants was the owner (keeper) of any such dog or dogs.
[19] Jones v Dunkel (1959) 101 CLR 298 at 304-5; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267; Elliot & Anor v Andrew [2009] SADC 31 at [20]; Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171.
In matters of this type, there might be nice distinctions to be drawn, according to the facts, between, for example, a cyclist who is so startled by a dog coming across their path or “threatening” to cross their path that they fall off and, for example, one who is distracted by watching a dog and who thereupon crashes into something or falls off. I make no comment as to whether or not even the former situation necessarily would demonstrate a sufficient causal nexus. However, the further one were to move along a spectrum of this nature, the more challenging, questions of causation, would become. Given the nature of the parties’ respective cases, as to the facts of this matter, it will not be necessary to explore this type of distinction here.
The Evidence of John Wilding
The evidence of Mr Wilding is the only direct evidence in support of his case. As such, it is necessary to carefully examine the credibility and reliability of his evidence.
According to Mr Wilding he entered the track from Portrush Road at approximately 6.10pm.[20] Mr Wilding was an experienced rider and had used the track frequently over a two-year period. He had been travelling on the track towards the city for five or six kilometres before he proceeded under the Stephen Terrace bridge.[21] He said that, to this point, he had not seen any other people using the track that night.[22] After passing under the bridge Mr Wilding came around a bend and saw the defendants standing on the left-hand side of the track looking towards him.[23]
[20] T38.
[21] T40, exhibit P1.
[22] T40.
[23] T38, T43-44.
On approaching the defendants Mr Wilding manoeuvred his bicycle to the right-hand side of the track,[24] went past the defendants and then negotiated a right-hand veer as he started to climb up a small hill.[25]
I saw the people on my approach and they were standing on what I considered to be my side of the road and they were facing me, so I thought initially they were walking towards me on the wrong side of the track. That is always a concern to cyclists because people don’t quite understand the rules, so I was very cautious as I approached them and then I moved to the right-hand side of the track to go past them – but I was watching them very carefully in case they would make an adjustment to their position, but they didn’t and I continued past them.
[24] T43, T44.
[25] T44.
Although Mr Wilding had a bell on the bicycle he did not ring it, to warn the defendants of his presence.[26] He did not need to, “they were staring straight at me”. He said that, upon approaching the defendants, he “slowed quite considerably because it is quite a nervous time passing people”.[27]
[26] T97-98.
[27] T45.
Mr Wilding said that he did not leave the bitumen section of the track when he was passing the defendants or at any other time leading up to the accident.[28] Indeed Mr Wilding maintained that, during the two years prior to the accident, he had ridden something like 18,000 kilometres[29] around the track and that he had never had occasion to leave the bitumen section.[30]
[28] T57.
[29] T208.
[30] T113.
After Mr Wilding passed the defendants he continued for some fifty to seventy metres up the hill and along the track before a group of dogs suddenly rushed up from his right-hand side onto the track in front him. He did not hear the dogs approaching.[31] This really “shocked” him. He “jammed” on the breaks and at first thought he had avoided the dogs but “right at the last minute one glanced off my wheel and I went over the handlebars”.[32]
[31] T46.
[32] T45, T46.
Mr Wilding during examination in chief said that he first saw two dark dogs, then another dog, the last dog being the one that he believed he ran into.[33] Mr Wilding said that the first dog he saw was a German Shepherd.[34] He later recognised this dog as one he had seen on the track on other occasions.[35] The dog that followed the German Shepherd was a smaller dog of similar dark colour.[36] The third dog that followed and the one he saw last was a rusty-brown dog, also smaller than the German Shepherd. Mr Wilding believed that this was the dog he hit so as to throw him from his bicycle.[37] However, he did not have a clear recollection of seeing himself hit a dog.[38]
[33] T46.
[34] The plaintiff also described it as a Belgium Shepherd with a “sort of black overcoat”, T58.
[35] T47.
[36] T58.
[37] T59.
[38] T59.
AEverything was under control until the last minute, and then something glanced and threw me over the handlebars and I believe I struck a dog or a dog struck me, in that essence. It was all milliseconds, but something threw me over the handlebars and there was a jerk on my handlebars that wasn't a braking action.
HH Q So you are now saying that you don't have a recollection of actually seeing yourself hit a dog.
ANo, I was jamming on the brakes looking in front of me, and then I had a visual influx on the right-hand side as the brownish dog came in, and then over the handlebars.
.. . .
XN QDo you recall coming into contact with any of the dogs.
AI believe I hit the reddish-brown dog because I could see the other two black dogs in front of me and I don’t believe I hit those, no.
When asked about the number of dogs in the group that ran across his path during cross-examination further uncertainty emerged. Mr Wilding conceded that in an earlier out of court statement to a psychologist, Debra Lawton, he said that three to four dogs ran on the track in front of him.[39] He was also challenged about whether or not he said the same thing to a Dr Bauze. He did not recall this and would not concede it. However, at this point the plaintiff provided different formulations in court, “some dogs” and “a group of dogs”.[40] The following exchange then occurred.
QYou don't know how many dogs were in the group.
ANot entirely, no. There were several dogs.
QSo do you agree that on your memory there might have been four dogs there.
AI can't remember exactly how many dogs there were. At least three that I know of.[41]
[39] T214.
[40] T214.
[41] T214.

It was also put during cross-examination that Mr Wilding told police officer Romanas[42] on 21 November 2004 (almost seven months after the accident) that he saw a small greyish dog come up from the embankment. Mr Wilding said that he could not remember saying this to police officer Romanas.[43] Indeed Mr Wilding had no recollection of speaking to Mr Romanas in November, seven months or so after the accident. He remembered various visits from Mr Romanas during the months after the accident where they socialised and drank coffee. It appears that they may have shared a common interest in cycling. However, Mr Wilding had no recollection of Mr Romanas making notes or taking a statement nor, it would seem, of anything that he said to Mr Romanas.
[42] Police officer Romanos attended the scene on the night of the accident.
[43] T107.
Mr Wilding conceded that it was possible his recollection in November 2004 of events in April 2004 may have been better than at the time he gave his evidence in 2012. However, he maintained having no recollection of ever talking about a small greyish dog.[44] Exhibit P2 contains handwritten (and then typed) notes prepared by Mr Romanas of conversations he had with various of the protagonists. His notes of conversations with Mr Wilding on 21 November 2004 recorded that Mr Wilding said to him the following.
[A] small greyish dog came up from the embankment, right in front of me and I hit the brakes hard. I was unfamiliar with this new bike and because of the surprise the front wheel went from under me and I went over the handlebars…
There is no mention in this recorded conversation of any other dog or dogs, fitting the descriptions given by Mr Wilding in his evidence, as having been involved in the accident. The recorded conversation continued with an account, apparently given by Mr Wilding, of the immediate aftermath including conversation with the two defendants who ran up to him after he fell. After this, the record of the conversation continues “There was a number of dogs running around, it was dark at the time, the road was dark.”
[44] T105-108.
During cross-examination Mr Wilding also denied having seen a lady with a grey coloured Blue Heeler dog on the track before he reached the defendants. “I can’t remember seeing any other people on the track that night.”[45]
[45] T104.
According to Mr Wilding, when he fell to the track he broke the neck and ball of his femur.[46] He immediately suffered very significant pain and distress.[47] However, Ms Beger, the second defendant “then approached and berated me, called me a silly man for falling off my bike and it wasn’t her dogs fault. And then they gathered their dogs and left the scene.”[48]
[46] According to the treating orthopaedic surgeon Mr Mellick Chehade, the plaintiff suffered a fracture to his proximal left femur in the sub-trochanteric region. He underwent surgery by way of open reduction and internal fixation of the fracture with an intramedullary femoral nail.
[47] T46, T205.
[48] T47.
Mr Wilding appealed to the defendants for assistance but Ms Beger was anxious to leave the scene. After a short time, Mr Burgemeister returned and used Mr Wilding’s mobile phone to call emergency services and have an ambulance dispatched. Mr Wilding gave the following evidence during his examination in chief.[49]
[49] T47-48.
AThey left the scene and I was left on the track. I recognised one of the dogs to be a German shepherd which I had seen on other occasions on the track, it was a magnificent looking dog and then it dawned on me I actually didn't know these people but had seen them and was familiar with them. So I called out that I'd be able to find them and that I needed some assistance. Then after a short amount of time Mr Burgemeister came back to render me aid.
QWhat did he do.
AHe propped my bike up so I was visible in the beam of my headlight because it's quite a dangerous down hill section of the track there, I was afraid someone would hit me. He removed my mobile phone from my cycle bag and called emergency and had an ambulance dispatched.
QWhat was actually done with the bike.
AIt was propped up against a tree, so a bit further back from where I had the accident so I could be displayed by the beam of the light.
QWere both the beams working.
AI hadn't turned them off so I'd imagine they were unless -
QDo you recall -
AThe bright one was working 'cos I was illuminated.
QWhat happened next.
AMrs Beger was constantly berating him to leave, you know, the whole time that they were there she was wanting to leave the scene and eventually a police officer arrived.
QWhat happened when he arrived.
AIn what sense? He took over the accident scene and directed the ambulance. The ambulance had been trying to find me on the track because it's quite a funny place, you know, as far as the road is concerned; I didn't know any of the roads and we couldn't relay that information, only generalisation. So, he directed the ambulance to the scene and he had taken Mr Burgemeister's number and Mr Burgemeister was nice enough to take my bike home to his house from the scene.
During cross-examination, Mr Wilding maintained that after the accident the defendants “had to walk roughly 80m, 70-80m before they got there so it was a little time that passed”.[50]
[50] T122.
The track was poorly lit and it was “very dark” at the time of the accident.[51] There was some artificial lighting on the northern side of the track across the river but none on the southern side. Mr Wilding said that his bicycle was equipped with one flashing amber light and a NiCad constant high beam light.[52] Both were switched on and operating.[53] The bicycle was a hybrid mountain bike but the tyres were standard racing bike tyres.[54] This was only the second time that Mr Wilding had ridden the bicycle. He had purchased it on the day of the accident.[55]
[51] T42.
[52] T41.
[53] T42.
[54] T101.
[55] T108.
Mr Wilding maintained that at no time did he ride off the bitumen part of the track.[56] At first he refused to accept but ultimately conceded that, with thin racing bike tyres there would be some element of risk of a tripping problem, had he left the bitumen, in riding parallel to and attempting to get back onto the bitumen part of the track.[57] I interpolate here that there was evidence (which the view undertaken rendered easier to understand) to the effect that at various locations along the track the bitumen would present a raised edge. The extent of any raised edge and whether or not it would be apparent or observable from time to time would depend on the nature of the earth verge at any given location, weather conditions, the extent of leaf and other debris deposits, encroaching undergrowth, available lighting (natural or otherwise) and the like.
[56] T113.
[57] T114-116.
Evidence of Mr Anthony Romanas
Mr Anthony Romanas was the police officer who attended the accident site on 28 April 2004. He arrived a little after police received the call at 6.30pm and left the scene at about 8.30pm. Mr Romanas in his evidence identified the notes in exhibit P2 as his. He said that he had no reason to think that he had not accurately recorded what Mr Wilding told him. Given the passage of time Mr Romanas could not recall much without reference to his notes.[58] Nevertheless, I found Mr Romanas to be a careful witness who did his best to assist the court. I am satisfied that Mr Romanas used his best endeavours, in accordance with his obligations and training as a police officer, to make accurate recordings in his notes of what he was told by Mr Burgemeister and Mr Wilding at or reasonably contemporaneously with the times he was told the things he has recorded.
[58] T335.
Mr Romanas made no note about the bike having lights or of any examination of them. He would have made a note if the bike did not have appropriate lighting. Mr Romanas had no recollection of whether the light on the bike was a flashing or strobe type or straight beam type. Whilst at the scene Mr Romanas spoke to Mr Burgemeister. He could not remember speaking to anyone else.
In addition to the note concerning the involvement of a small grey dog, the typed version of the notes also record the following:
1840 28/1/05 Unable to locate female dog at prems Waterman Tce Vale Pk medium dog red white patches
Victim contacted.
The structure of the handwritten form of the note suggests a chronological order of events. A time and date (21 November 2004) is recorded before the notes of the conversation with Mr Wilding, then a time and a date (28 January 2005) is recorded before the notes of the visit to Waterman Terrace after which, on a separate line towards the bottom of the page appears the phrase “victim contacted”. It might be inferred that Mr Romanas contacted Mr Wilding at some time after his visit to Waterman Terrace.
According to the notes of a conversation with Mr Burgemeister, apparently recorded on 14 December 2004, it can be inferred that Mr Romanas was led to believe that Ms Beger lived at the Waterman Terrace house. The note set out above in its typewritten form appears to refer to a “female dog”. However, when the handwritten form of the note is examined carefully there appears to be a full stop after “female” and a commonsense reading of the note, in the context of the known facts, suggests this must be so. As such, Mr Romanas has recorded (in the handwritten form of the note) “unable to locate female” [that is Ms Beger] and “dog at prems 28 Waterman Tce Vale Pk medium dog red white patches”. Whilst this description matches, tolerably, Ms Beger’s dog, which she describes as a brown-rusty coloured Heeler, it does not match the plaintiff’s observation apparently made to Mr Romanas of a small greyish dog.
Mr Romanas had little recollection of events apart from the extent to which his memory was refreshed by his notes. However, the notes were tendered by the plaintiff, without objection, as part of the police records (exhibit P2). In my view, they comprise part of a business record within s45A of the Evidence Act 1929. In the circumstances of this case, including the evidence of Mr Romanas referred to earlier as to their reliability which I accept, they are evidence of any fact, stated in them or of any fact that may be inferred whether any such inference arises solely from the content of the notes or from that in conjunction with other evidence. I am satisfied that Mr Wilding did make the statement to Mr Romanas that “a small greyish dog came up from behind the embankment”. I am satisfied that the interpretation of the structure of the notes and the inferences identified as just set out are proper inferences to draw. A question that arises is, was Mr Wilding, when contacted after the Waterman Terrace visit, told something along the line that the dog at Waterman Terrace was a medium dog, red with white patches?
Evidence of Mark Burgemeister
At the time of the accident the first defendant, Mr Burgemeister was the owner of two fully-grown dogs; Spy and Buster.[59] Buster was a long-coated German Shepherd and Spy a mainly black Border Collie or Heeler Cross.[60]
[59] T363.
[60] T363.
The two dogs had been well trained by Mr Burgemeister; Buster, at the German Shepherd Club at West Beach and Spy, at a club called The Gums. The dogs responded to Mr Burgemeister’s voice commands such as “heel”, “stand”, “sit” and “come” (return) when the dogs were not on a lead.[61]
[61] T365-370.
Mr Burgemeister entered the track at Vale Park at about 5.30pm on the 28 April 2004.[62] The dogs were not on a lead.[63] Approximately 400 metres after entering the track he allowed the dogs to go swimming in the River Torrens; at an area he described as a waterhole[64] at which time Ms Beger, who was a friend, arrived with her dog Bluey.[65] The two had been walking their dogs together for a number of months.[66]
[62] T370.
[63] T371.
[64] T372.
[65] T372.
[66] T389.
After the dogs had swum in the waterhole they all continued to walk towards the city.[67]
We took up most of the path because some sections of the path are quite wide, but when you get to that section where the accident happened it does go a bit narrower and there is leaves on one side that covers up, you can't quite see where there is a lip and the other side there is a lip so you don't walk near there either.[68]
Mr Burgemeister explained the formation that the defendants and their dogs assumed at or about the time the plaintiff arrived. Mr Burgemeister was off centre and closer to the right side of the track facing the city; to his left was Spy at ‘heel’; Ms Beger was to the left of Spy, and Bluey was walking slightly behind Ms Beger.[69] Some fifteen to thirty metres ahead of the group, towards the city, was Buster.[70] Buster was within Mr Burgemeister’s sight at all times.[71] Mr Burgemeister agreed during cross-examination that it was quite dark at that time of the night. However, he maintained that he could see Buster ahead[72] and that Buster was never fifty to seventy metres ahead of the group.[73]
[67] T372.
[68] T374.
[69] T375.
[70] T375.
[71] T375.
[72] T399.
[73] T398.
During cross-examination there was confusion at first in Mr Burgemeister’s evidence concerning whether the dogs had swum at a second waterhole along the track. This waterhole was at a point beyond where the accident occurred. It was explored with Mr Burgemeister whether or not Buster had been down the embankment at this waterhole prior to the accident. This was denied by Mr Burgemeister. Ultimately, his evidence was clear to the effect that whilst this water hole was part of their usual route, on this night neither the group nor Buster had reached this area. “We didn’t get to where I’d normally walk around, didn’t even get close to that part”.[74]
[74] T420.
Mr Burgemeister said that he only become aware of Mr Wilding’s approach when he noticed a light just behind his right shoulder.[75] At that time, given the formation of the group, there was limited room between Mr Burgemeister and the edge of the bitumen track to his right. They were taking up approximately three-quarters of its width. Exhibit D1-20 consists of two photographs showing the vicinity of the accident and where, on the track, Mr Burgemeister was positioned at the time of the accident, according to his evidence. Exhibit D2-28 is another photograph of roughly the same area on which the second defendant has marked with an “X” the approximate position on the path where she says Mr Wilding fell. When Mr Wilding approached the group no warning by way of bell or verbal communication was given.
[75] T378.
Mr Burgemeister described Mr Wilding as having slowed somewhat but as “struggling” with his bicycle. Mr Wilding passed the group on their right but because of the lack of space was forced off the bitumen track. Mr Wilding’s hands were clenched on the handlebars as he was attempting to regain control of the bicycle as it was snaking along the bitumen edge of the track. He failed to keep control of his bicycle and fell to his left, onto the track, landing on his left hip.[76] During cross-examination Mr Burgemeister did not waiver in his evidence that he saw Mr Wilding fall in this manner. Mr Wilding fell only five or six steps in front of the group and there were no dogs near him when he fell.[77]
[76] T378-380.
[77] T381.
Immediately after the accident Mr Burgemeister approached Mr Wilding to check on his condition. It was only a matter of seconds before he reached Mr Wilding.[78] Mr Wilding was “positioned pretty well in the middle of the path” with his bicycle at his feet.[79]
[78] T381.
[79] T382.
Mr Burgemeister described, in cross-examination, the behaviour of Ms Beger immediately after the accident.
QWe weren't asking about him, we were asking about what words you heard Ms Beger say.
ANo, I can - I cannot recall exactly what was said. Might have been 'Silly man' or something, 'You silly man' or something. But I can't recall.
QDid they appear to be said angrily.
AShe was flustered what happened.
QBy flustered, do you mean she was angry.
ANo, she was - you know, just very edgy, sort of thing.
QWhat was there that you noticed about her that gave that appearance.
ABecause, because all of a sudden he appeared and went over, and she might have said, you know 'Silly man, going', you know, what happened, he's going along the path - along the edge there.
QDo you recall whether or not she attempted to get you to leave the scene then at that point in time.
ANo, we never left the scene.
HIS HONOUR
QThat wasn't the question. Do you recall if she attempted to get you, tried to get you, to leave the scene.
AWhy would she try to -
QNo, that's asking me a question. I want you to answer the question I asked.
AShe didn't attempt to leave the scene.
QShe didn't try.
ANo.[80]
[80] T406.
Mr Burgemeister used Mr Wilding’s mobile telephone to contact emergency services and organise an ambulance.[81] He told his dogs, Buster and Spy, to lie down nearby, off the path, so as to avoid any passing cyclists.[82] To make Mr Wilding more comfortable Mr Burgemeister then placed the bicycle helmet behind his head. He placed Mr Wilding’s bicycle further along the path, towards the city, with the light on flashing mode in order to warn any oncoming cyclists.[83]
[81] T383.
[82] T383.
[83] T384.
Two or three minutes after the accident a woman with a dog arrived from the direction of the Stephen Terrace Bridge.[84] Mr Burgemeister knew this woman as Jo and the dog she had with her was a greyish coloured Blue Heeler.[85] When Jo arrived she placed her pashmina over Mr Wilding before a minor dog fight broke out nearby between Bluey and Jo’s dog. Mr Burgemeister directed Jo and Ms Beger to go towards the Stephen Terrace bridge, away from the city, to warn any oncoming cyclists.
[84] T385.
[85] T385.
Police Officer Romanas was the next person to arrive and about ten minutes later the ambulance arrived.
Evidence of Jo Weathersbee
Ms Jo Weathersbee was walking her dog, a Blue Heeler called Luna Loup, along the track towards the city. As she approached the Stephen Terrace bridge she became aware of a cyclist. She was on the left-hand side of the track facing in the direction of the city; her dog was one or two metres ahead and also to the left-hand side of the path.[86] Ms Weathersbee did not become aware of the approaching cyclist until he was just behind her right shoulder.[87] She heard no bell or other warning indicating the approach apart from the noise of the bicycle tyres on the track. The cyclist passed Ms Weathersbee at a fast pace on her right-hand side and forced her to stumble off the bitumen path and fall over.[88] Everything happened so quickly that Ms Weathersbee did not have time to clap[89] so as to call her dog back or warn it of the cyclist.
QYou’re off the path… what happened to your dog…
AIt was ahead of me but I didn’t have time to warn her, yell at her… But I didn’t have time to get to that and I had no time to clap because he was just past me and in passing me swerved in. He collected Lou who was ahead of me about 2m, 3m ahead.[90]
[86] T471.
[87] T472.
[88] T472-473.
[89] Ms Weathersbee has spoken through a voice prosthesis since she had throat surgery 12 years ago. Her evidence was to the effect that she would communicate with her dog by claps.
[90] T473.
This last statement, as recorded in the transcript during examination in chief, is curious. It suggests that Ms Weathersbee saw Mr Wilding come into contact with her dog Luna Loup – a small to medium Heeler,[91] which Mr Burgemeister described as “grey greyish”.[92] This is to be considered in light of Mr Wilding’s statement to Mr Romanas that “a small greyish dog came up from an embankment”. However, the notion that the plaintiff may have come into contact with Ms Weathersbee’s dog was not pursued in examination in chief (Ms Weathersbee was called by the first defendant) nor taken up during cross-examination. Ms Weathersbee went on:
But he was passed (sic: past) me very quickly, he was the only bicycle that passed me… I didn’t see another cyclist.[93]
[91] T480.
[92] T385.
[93] T474.

Elsewhere in her evidence Ms Weathersbee described this cyclist as having been “riding so dangerously” and as having “nearly taken me out”[94] and as having “physically scared me”.[95]
[94] T476.
[95] T478.
It was some three to five minutes after the cyclist passed her before she came across the scene of the accident.[96] Ms Weathersbee said that she recognised the cyclist involved in the accident as the one who had passed her. She stated that, “it was the same sized person - I mean he looked the same; helmet, flash bike. I didn't see his face, I guess I made assumptions but I can't see who else it would have been.”[97] Ms Weathersbee remembered that she had been “really angry” when the cyclist passed her and that seeing him on the ground appeared to her as “instant karma”; “it served him right”. She felt guilty about this.[98]
[96] T476. However, Ms Beger said that Jo arrived less than a minute after the accident occurred.
[97] T476.
[98] T481.
Ms Weathersbee was adamant that no other cyclists had passed her on the track prior to her coming upon the accident.[99] However, during cross-examination by counsel for the plaintiff she agreed that she “couldn’t really be sure” that the cyclist on the ground was the same person who passed her.[100]
[99] T476.
[100] T488.
Ms Weathersbee struck me as intelligent, honest and forthright. She was anxious but mainly about her capacity to accurately convey her evidence given her vocal restrictions. As a consequence she tended to get excited and used a lot of hand movements to assist in conveying her message. She also appeared frustrated at times when she thought she was having difficulty explaining herself. I had no difficulty in understanding her and, ultimately, her account was a clear one. The incident of her being run off the track would have been very significant to her. I am confident that she has accurately recalled and told to the court the events as they involved her.
Evidence of second defendant, Ms Marianne Beger
The second defendant, Ms Beger, is the owner of a brown-rusty coloured Heeler named Bluey. Prior to the accident in April 2004, Ms Beger regularly walked along the track with Mr Burgemeister and his dogs, Spy and Buster. Bluey was well trained, having completed dog obedience classes. As was often the case, he was not on a lead at the time of the accident.[101]
[101] T511.
According to Ms Beger, she and Mr Burgemeister had been walking together for some time, approximately an hour or an hour and a half, prior to the accident which occurred at about 6.30pm. They had passed under the Stephen Terrace bridge and were walking towards the city along the southern side of the track. It was dark on that side of the track.[102]
[102] T511
Ms Beger said that she did not become aware of the cyclist until she noticed a “bluish light” and heard him pass her group on their right side.[103]
We heard – I heard a cyclist bypassing us on the right. I was aware of the cyclist. I didn’t actually see him. I saw a bluish light. He went – no warning, and he went off the path in order to pass us, and then we kept walking. I could hear in my – in his wheel or both wheels scraping along, you could hear the scraping sound, when he tried to get back up onto the path, and the next sound, he fell heavily to his left, virtually right across the path, that’s what I remember.
She was asked if she heard any noise.[104]
No, just the noise that the bike makes when it goes through gravel and the scraping of a wheel or both wheels along – and I presume it was the front wheel, trying to get back up on to the path, that’s what I observed.
[103] T515.
[104] T517.
According to Ms Beger, she only saw the cyclist as he passed her and while attempting to regain the bitumen track and falling about five metres past the group. It is apparent from Ms Beger’s evidence that she, unlike Ms Weathersbee, had no opportunity to assess the speed of the plaintiff when he was riding on the bitumen track itself. She never saw this. If her evidence were to be accepted here, she only saw Mr Wilding whilst he was off the bitumen and struggling to return to it. As such, when she described the bike coming past her and then in front of her as “not fast… reasonably slowly”,[105] this observation must be understood in this context.
[105] T517.
Ms Beger said that Mr Wilding fell between two trees next to a stone wall before the footbridge that crosses to the other side of the track.[106] She said that this point on the track was significant to her because it was a location where she habitually took “particular steps” to have Bluey at her side. She was adamant that there were no dogs near Mr Wilding when he fell.
QAt that time when you were looking ahead did you see any dog or dogs in the vicinity of the cycle.
AThere was never any dog near the cyclist at the time of his accident, not at all. Not our dog, not anybody else's dog. There was no dog anywhere near him. He simply fell by leaving the path and not being able to get back onto the path.[107]
[106] T521, exhibit D2-28.
[107] T525.
As to the formation of the defendants and their dogs upon being approached and passed by Mr Wilding, Ms Beger gave the following evidence.
AOkay. I remember that my dog was right next to me and Richard's dog Spy was behind my dog. That's what I remember and Richard was next to me on the right and I was on the left and the dogs were on the extreme left and Buster, the German Shepherd, was ahead on the right side walking through the gravel and the grass towards the wooden bridge.
QThat's the bridge to return home.
AYes.
QBecause Buster knew where you were going.
AYes.
QThat's where you went most times.
AThat's exactly how I remember it.[108]
[108] T514.
The formation of the group on the track was such that there was little room for any passing cyclist. It is to be noted that Ms Beger’s description of the group’s formation differs slightly from that of Mr Burgemeister. This is not surprising. I did not understand either to suggest that they and the two smaller dogs assumed some sort of military formation which never changed. The nett effect of the defendants’ evidence was that all, bar Buster, comprised a contained group taking up a significant portion of the width of the bitumen track. Given that there was no warning of Mr Wilding’s approach the group did not have time to move to the left.[109]
[109] T527.
Ms Beger’s evidence was consistent throughout as to the position of Bluey and Spy. However, she said that she could not always see Buster because of her eyesight.[110] During cross-examination Ms Beger said that she was unsure how far ahead Buster was at the time of the accident.[111]
[110] T512.
[111] T530.
The group was not always in this formation throughout the entire walk.
QYou say that that was basically what occurred throughout the full length of the walk, from when you entered the park until the accident.
ANo, no. They didn't heel the whole way, they were sometimes on the right, sometimes on the left as we walked, but at that particular point because of the wall there and because knowing that the bikes would come down the hill rather fast, we made sure that they away on the left, but normally they were allowed to walk on the right of the path or the left, because we knew if we said 'Stay stay' - because you can see the bikes coming - or else if someone came behind you ringing a bell or yelling out, well you made sure that you turned to the left and left your dog wherever he was, but not near the path, otherwise there would be an accident every night.
QSo you say that the only reason why they were in the location as you have described it, was because you required them to be there.
AYes.
QWhen you went past that stone wall.
AExactly.
QIf it wasn't for the stone wall, they would have more freedom in terms of -
AIf there were open ground on both sides then they may have been on the right or the left, but we would know they are there and made sure that they stay away from cyclists, of course.
. . . .
QIs that why you say the dogs were in the position you say they were in, because that's where the you think the accident occurred.
ANo. The minute we got to the stone wall, we made sure that the dogs were near that stone wall because of the bikes coming - they come down very fast down the hill.
QThat is your practice is it.
AThat is the usual thing we do, yes.
QBut if the accident occurred before the stone wall – I know you say it didn't - but if it did, then your dogs would have had more freedom at that point.
AYes. For instance if you go past the park which by the way I know now is before Stephens Terrace from where we came, then they may walk half-way up the hill there in the grass and so on, but you see the bikes coming towards you, and you either say 'stay' or you say 'heel'.[112]
[112] T556-557.
Immediately after the accident Mr Burgemeister approached Mr Wilding to check his condition. Ms Beger followed to where Mr Wilding had fallen some five metres away. She denied denigrating or abusing Mr Wilding. However, she did say words to the effect “Why did you go off the path?”[113] She denied having said “you silly man” or “you stupid man, it was not my dog’s fault”. According to Ms Beger, Ms Weathersbee arrived with her dog less than a minute later.
Mr Burgemeister was the very first one to go up to him, before I even did, because Jo arrived at the same, it was in half a minute, I would say, maybe a minute. But Mr Burgemeister was immediately there, asking him was he all right, could he move, to which Mr Wilding said 'No', and then Jo arrived and I talked to Jo, explaining what had happened, and she - Jo pointed her finger at the victim and said to me 'That's the bloke that nearly ran me down',[114] but when she realised, and I told her that he had most likely broken his leg, she was very caring, took her cape off and covered him up, because it was bitterly cold, and then I cannot remember whether I walked by myself or with Jo to stop cyclists from running into Mr Wilding. I stopped one cyclist, they are known to us, he comes every night past, and he was pretty shocked and walked - and we both turned around and I saw a flashing blue light, so I knew that I didn't have to stay to stop cyclists; they could see the light, just as we could.[115]
[113] T518.
[114] Arguably this evidence as given by Ms Beger was inadmissible for its truth. No objection was taken at the time. Nevertheless, as discussed later in these reasons, I am satisfied on the basis of Ms Weathersbee’s own evidence, without reference to this aspect of Ms Beger’s evidence, that the plaintiff was the cyclist who passed Ms Weathersbee at speed.
[115] T518-519.
Ms Beger was adamant that at no stage did she leave to go home or encourage Mr Burgemeister to leave, nor was she chased by a cyclist who asked her to come back to the accident scene as Mr Wilding had asserted.[116] Mr Burgemeister called for the ambulance. Ms Beger saw him make this phone call but did not hear what was said. Ms Weathersbee and Ms Beger took up a position to warn oncoming cyclists. After a long period of time the ambulance arrived. After the ambulance had departed with Mr Wilding, the defendants left. They walked back the way they had come. Mr Burgemeister took Mr Wilding’s bicycle back to his house.[117]
[116] T525-526.
[117] T526.
During cross-examination Ms Beger acknowledged that she and Mr Burgemeister had discussed the accident after the event and again when they became aware of Mr Wilding’s claim.
The cause of the accident – analysis of the evidence[118]
[118] During the trial a substantial amount of conflicting evidence was received as to the precise location on the track of the accident and concerning the nature of any light or lights on Mr Wilding’s bike. Having regard to my reasons for ultimately rejecting Mr Wilding’s account, it has not been necessary for me to make any detailed findings in these respects. However, I do record that I am satisfied that there was some form of purpose designed operational and operating light or lights on the bike that night.
The two accounts as to how Mr Wilding came to fall of his bicycle – that given by each of the two defendants as compared with that given by the plaintiff – cannot be reconciled. Both cannot be correct. That does not necessarily mean that one is wholly correct and the other wholly incorrect. The accident occurred more than eight years ago. It was only towards the end of the three year limitation period that the plaintiff actively thought about pursuing a claim. It was some eight to nine months after the accident that Mr Wilding was encouraged “to go and see someone… to speak about [the accident] in more depth”. Prior to that, whilst people had talked about a claim, he hadn’t given a lot of thought to it.[119] Correspondingly, it is most unlikely that either of the defendants gave much thought to the accident for the first three years or so after it occurred, that is, prior to being put on notice that a claim was to be brought. It is conceivable that some elements of the accounts given by each of the three protagonists are accurate but that the accident, in fact, came about in a way different in various respects from that as described by any one of the protagonists.
[119] T227-228.
However, the court’s task is not, necessarily, to determine how the accident occurred. The task before the court is to determine whether or not Mr Wilding, on whom the burden of proof in this respect lies, has demonstrated, on a balance of probabilities, that the accident occurred in the way as described by him so as to establish liability against one or more of the defendants pursuant to s66(1) of the Dog and Cat Management Act. Even if I were to reject the defendants’ accounts (which I do not) the plaintiff would still bear this onus. A judge may, and in an appropriate case should, decide a case on the basis that the party bearing the burden of proof has failed to discharge it.[120]
The judge is not bound to always make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.[121]
[120] Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712 at 718. Morris v London Iron & Steel Co Ltd [1988] Qb 493 at 504 and 506-7; Pickford v Imperial Chemical Industries PLC [1998] 3 All ER 462 at 473; Maher-Smith v Gaw [1969] VR 371 at 374 and generally Cross on Evidence 8^th Australian ed (JD Haydon) at [9015].
[121] Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712 at 718, per Lord Brandon of Oakbrook.
There was nothing about the demeanour of either defendant or the plaintiff that would cause me to form a view, on this ground alone, that one or other of them was endeavouring deliberately to mislead the court. Nevertheless, there were a number of aspects of the evidence given by the plaintiff that, at the time I heard it, it caused me disquiet. My review of both his evidence and that of the defendants during the writing of these reasons has not caused any alleviation of that disquiet.
It became apparent to me, whilst listening to the evidence of the plaintiff, that he had a very set view not only as to how the accident itself came about but as to all of the events of the night in question. He resisted any suggestions put to him that did not accord with the narrative he had established, even suggestions that had no bearing or perhaps a relatively benign bearing on the issue of what caused the accident. It was this repeated refusal, some eight years after the events, to contemplate any variations on his narrative that, after a while, caused me concern as to the reliability of his account. In addition, some aspects of the plaintiff’s evidence are sufficiently inconsistent with or intrinsically less likely than other evidence, which other evidence I prefer, also to cause me to doubt the reliability of his account of the events that night.
The plaintiff was a very experienced cyclist. He had devised a training circuit over 25 kilometres of the track and often rode 350 to 500 kilometres a week. On some training days he would do his circuit four times. The bike he was riding on the evening of the accident was a new bike acquired just that day. The odometer on his previous bike showed he had ridden something like 18,000 kilometres around the track at the time that he switched bikes; this equates to more than 700 of the plaintiff’s complete circuits over approximately a two year period during which he had been training on the track. He knew the track and its idiosyncrasies very well. The plaintiff said he was not interested so much in speed but in strength. Nevertheless, he had calculated, at one stage, that his average speed around the track was of the order of 24kms per hour. Simple arithmetic suggests that there would be occasions when he would go more slowly than this speed and occasions when he would go more quickly.
The plaintiff’s evidence was also to the effect that he preferred, when training, to ride at night although usually a little later than 6.30pm[122] because the track was clearer at that time, there were fewer people walking, fewer dogs, fewer cyclists returning from work. It was his experience that, at this time, he was able to enjoy a relatively unimpeded progress as he did his circuits of the track.
[122] During examination in chief, the plaintiff said he would usually start his training between 6.30 and 7pm, T39-40.
On the night in question he was not training but had set off to visit friends in Croydon. On the basis of the evidence of all three protagonists, but particularly that of Mr Burgemeister and Ms Beger, I am satisfied that the accident occurred at a time not significantly earlier than 6.30pm. Mr Wilding said that he was in no rush, “just meandering”. He said that when he reached the two defendants he “slowed quite considerably” because it was always a nervous time passing people. At this time it was “pitch black”.
I do not accept that the plaintiff was just “meandering”. Mr Wilding impressed me as a very confident person, particularly insofar as his cycling ability was concerned. It was a new bike that day. It would only be natural for a cyclist of Mr Wilding’s experience and ability to want to put it through its paces. The track was, for all intents and purposes, relatively clear at this end of the day.[123] My general impression of the plaintiff was that he was not a person who “meandered” anywhere if on a bike. However, perhaps more importantly, the evidence that he was “meandering” is inconsistent with the way he was riding at the time he passed Ms Jo Weathersbee a matter of minutes, at most, prior to the accident. I accept her evidence that a cyclist whom she identified as the plaintiff, in effect, ran her off the track because of the speed he was travelling and the lack of warning of approach given to Ms Weathersbee. I am not suggesting that the plaintiff rode around the track demanding a right of way, willy nilly and irrespective of who might be in his path. However, he was an experienced, highly competent rider and I am quite satisfied he was riding briskly, if not at some speed.
[123] According to the evidence of all three protagonists and Ms Weathersbee.
By all accounts it was very dark that night and the track twists and turns and rises up and down as it follows the river through the trees. It is not at all surprising that an incident such as Ms Weathersbee described occurred. Furthermore, the plaintiff explained a number of times in his evidence how important it was that he did not leave the bitumen track. Whilst the plaintiff’s bike was a mountain bike it was fitted with thin road or racing tyres. As a consequence, the plaintiff made it his business not to leave the track for fear of getting a puncture.

I am satisfied that the cyclist who ran Ms Weathersbee off the track was the plaintiff. She was confident that she met no other cyclist on the track from the point when she was passed to the point a couple of minutes later when she arrived upon the accident. The plaintiff had commenced his journey that night some five to six kilometres further back, that is, from the direction Ms Weathersbee had come. Ms Weathersbee, almost instinctively, recognised the cyclist on the ground as being the one that had passed her.
It is conceivable first, that a cyclist who ran Ms Weathersbee off the track left the track before reaching the accident point and disappeared and second, that the plaintiff had already passed Ms Weathersbee and had been involved in the accident at or about the time that this second notional cyclist had passed her and left the track. If so, Ms Weathersbee might have happened upon the plaintiff at the accident scene and assumed, wrongly, that he was the same cyclist. However, Ms Weathersbee was quite clear that she only saw one cyclist pass her that night. I have accepted this evidence and therefore any scenario involving two cyclists cannot be correct. The overwhelming likelihood, even ignoring for the moment, Ms Weathersbee’s purported recognition of the plaintiff on the ground, is that there was just the one cyclist and that it was the plaintiff.
The plaintiff throughout his evidence refused to accept the presence of Ms Weathersbee on the night in question. Either he had absolutely no realisation of or recollection of passing Ms Weathersbee at such speed and in such close proximity that she fell over, or this was not part of the events that night that suited the plaintiff’s narrative.
It was put to the plaintiff that he had told police officer Romanas that the only dog involved in the accident was a “small greyish dog”. The plaintiff refused to accept or confirm that he said this to police officer Romanas. For the reasons already stated, I am satisfied that police officer Romanas did not record this in error or make it up but that the plaintiff did say words to this effect.
This aspect of the evidence raises a number of difficulties. Whilst the defendants rely upon it as, in effect, a prior inconsistent statement by the plaintiff and one which, quite properly bears adversely upon his credit and the reliability of his account given in court, it also, to some degree, operates as a prior consistent statement. The essence of the defence in this matter is that the plaintiff either has deliberately made up or has reconstructed the events that night insofar as the cause of the accident was said to involve a dog or dogs. It is the defence case that the two smaller dogs (Spy and Bluey) were at all times close by if not “at heel” to the defendants and the German Shepherd (Buster) was roaming ahead within sight of Mr Burgemeister. At no stage has the plaintiff said that he hit the German Shepherd or that the German Shepherd in some other way caused the accident. On the plaintiff’s case, any risk that the German Shepherd might have posed had been successfully negotiated by the plaintiff by the time a third dog appeared in his peripheral vision. Nevertheless, the mention of a small greyish dog on 21 November 2004 (about seven months after the accident) does offer an element of consistency with the plaintiff’s case.
The difficulty for the court, and ultimately for the plaintiff, is this. The description “a small greyish dog” does not fit any of the three dogs owned by the defendants. It does fit, tolerably, the description of Ms Weathersbee’s dog. However, bearing in mind that it was at night time with no artificial lighting other than some lighting emanating from the bike it is possible, if they were present, that both Spy and Bluey would present as “greyish”. According to the plaintiff, a second dog quickly crossed his path and a third was only very briefly in his peripheral vision. According to the plaintiff’s description of the accident he would have had very little time, perhaps at most a second or two, to focus on either dog. There would have been minimal, if any, opportunity for the bike light or lights to beam directly on either dog.[124] Both dogs are of reasonably comparable size but certainly significantly smaller than the German Shepherd, Buster. [125]
[124] I make this finding on the assumption that the bike was fitted with lights in the manner described in evidence by the plaintiff.
[125] See T444 for Mr Burgemeister’s evidence of the relative sizes of the defendants’ three dogs. When comparing Bluey and Spy he indicated that they were about the same height (significantly smaller than Buster) with Bluey a little heavier, “not much in it at all.”
If this was what the plaintiff experienced[126] then two things follow. First, his evidence that the third dog that came up from the embankment was a rusty-brown dog, at best for the plaintiff, most likely would have been the product of later reconstruction. The plaintiff saw the defendants’ dogs, including Bluey, immediately after the accident whilst waiting for the ambulance and on other occasions in the Linear Park after the accident. Furthermore, the plaintiff engaged in conversations with Mr Romanas after Mr Romanas had visited Waterman Terrace and had observed Ms Beger’s dog Bluey.
[126] And bearing in mind that on his own evidence his experience did not include actually seeing the dog he purported to hit before or at the time of any contact.
Second, the plaintiff’s evidence could never rise higher than, to the effect, that this third dog was either Spy or Bluey. Even if I were to be satisfied that a small greyish dog had been involved, the plaintiff’s evidence would not enable a finding as to whether the dog that the plaintiff saw as a small greyish dog at night was the first defendant’s second dog Spy or the second defendant’s dog Bluey. There is nothing about each defendant’s evidence that would allow me to determine that one, rather than the other was lying or mistaken about where their respective dogs were at the time of the accident. It would not be sufficient for the plaintiff to prove, on balance of probabilities, that one of these dogs was the cause of the accident. He would need to prove which of the two dogs was the cause and therefore which of the two defendants was liable. Even if I were to accept that a small greyish dog was involved (and I do not make this finding) and even if I were to accept that the only three dogs in the vicinity of the plaintiff at the time of the accident were Buster, Spy and Bluey, the plaintiff would fail to discharge the burden of proof on him as to the cause of the accident in a manner sufficient to attract liability to one or other of the defendants.
Nevertheless, it is not the plaintiff’s case that a small greyish dog was involved; the plaintiff consistently disavowed this during his evidence. The reference to a “greyish” dog in the conversation with Mr Romanas can only operate as a prior inconsistent statement; not having been adopted by the plaintiff in court it is not evidence as to the truth of the statement. It is the plaintiff’s case, as pleaded, that in an attempt to avoid colliding with the “two or more dogs” he attempted to swerve around them but collided with one of the dogs. In evidence, Mr Wilding expressly disavowed any attempt to swerve. His evidence was to the effect that he braked sufficiently to avoid an accident with the first two dogs that crossed his path but was unable to avoid, what he inferred to have been, a collision with a third dog, the rusty-brown dog belonging to the second defendant. On the plaintiff’s case, at least as presented in his evidence, there was no causal connection demonstrated insofar as the first two dogs were concerned. However, whilst on the plaintiff’s case the third dog might have been said to have caused the accident, the plaintiff is confronted with his prior inconsistent statement to the effect that initially the dog was a small greyish dog and secondly, the fact that his later description of the dog as brownish or rusty-brown is, at the least, more than likely the product of later reconstruction.
For the plaintiff to succeed I would need to be satisfied, at a minimum, first that there was a “visual influx”[127] on his right hand side,[128] second, that this “visual influx” was, in fact, a third dog and third, that this third dog was, in fact, a “rusty brown” or “brownish” dog. Even if the plaintiff did come into contact with a third dog, I would not be persuaded, on balance, that the dog was the brownish or rusty-brown dog Bluey, belonging to the second defendant, rather than Spy belonging to the first defendant. I say this for these reasons: the inherent unreliability of the plaintiff’s account concerning any contact with the third dog (he did not actually see this dog prior to or at the point of any impact);[129] the prior inconsistent description of the dog said to be involved; the extremely unfavourable conditions for the making of accurate observations at the moment of the accident;[130] and the significant potential for later re-construction concerning which of the three dogs, later observed with the defendants, that the plaintiff “believed”[131] he struck.
[127] T59.
[128] The defendants dispute the plaintiff’s case at this first hurdle.
[129] T59.
[130] Even on the assumption that the bike was fitted with lights as described by the plaintiff in his evidence.
[131] T59.
As I said earlier, my impression of the plaintiff is that, at least by 2012 when he gave his evidence, he had a fixed view about how the accident occurred and about all of the details of the night in question. He was not prepared to countenance any alternative version of events even if relatively benign to his case. For example, he was adamant that he would never ride off the bitumen. He would not ride off the bitumen because even though he had a mountain bike with suspension designed to enable it to operate off-road as it were,[132] Mr Wilding had set the bike up with thin road or racing tyres which would be more liable to puncture if he left the bitumen. Not only was the plaintiff adamant that he did not leave the bitumen part of the track at any time that night for this reason but that, in all his experience, he had never left the bitumen track. In riding over 18,000 kilometres around the Linear Park track, the plaintiff had never been confronted by an obstacle, (for example, person or dog) had never taken a bend at such speed or failed to brake adequately so as to cause him to leave the bitumen part of the track even momentarily. I find this extremely difficult to accept.
[132] The original bike had front suspension and the new bike brought the day of the accident had both front and rear suspension.
It took a significant amount of questioning by defence counsel before the plaintiff would concede that the edge of the bitumen in areas where it was raised above the packed earthen verge, and particularly where leaves and other debris might disguise the edge, could cause a particular hazard for a cyclist who rode off the bitumen and then attempted to renegotiate the verge and edge so as to get back on the bitumen. Initially when it was put to the plaintiff that he would be aware that such a raised edge might cause a person to fall of a bike, he gave the disingenuous answer “I hadn’t contemplated. I don’t ride off the edge of the track”.[133] The plaintiff was cross-examined on this topic over more than two pages of transcript.[134] In my view, the plaintiff understood the issue being raised by counsel but failed to address directly what was being asked and at times was evasive. It was only at the end of that passage of cross-examination and in answer to a direct question from me that the plaintiff conceded, and with the benefit of all his significant experience as a cyclist, that where a leading tyre of a bike catches an edge that is running in a sense parallel with the direction of travel the cyclist might lose some control of the bike.
[133] T114.
[134] T113-116.
The plaintiff ultimately conceded “yes… there would be some element of this”.[135] In my view, the proposition that when somebody leaves a bitumen surface to a softer more uneven verge and then attempts, perhaps at some speed, to renegotiate the hard edge so as to resume travel on the bitumen, the possibility (particularly in the dark) of the front tyre of the bike catching the edge and the bike skidding out from under the rider is self-evident and within the experience of almost anybody who has had a reasonable amount of experience riding a bike.
[135] T116.
On a related topic, and later during cross-examination, the plaintiff was asked about what defence counsel described as “tram-lining”. Counsel was referring to the problem of a push bike or a motorcycle wheel getting caught in a longitudinal rut or depression in the road.[136] The plaintiff said that he understood or recognised the phenomenon but maintained that he had never experienced it on a push bike.
QBut in all the thousands of kilometres that you have done I suggest that at some stage you’ve been caught in a situation where at least you have been a little unsteady on your bike because you’ve been riding along a rut or some other depression in the road surface that has made it difficult to turn your bike out of that rut.
ANo, I have never been stuck in a rut on my push bike.
I am satisfied that the plaintiff is a highly competent and very experienced bike rider and that he mostly rides for a specific purpose, that is, for training in the way that he described. I am satisfied that he, of all bike riders, would do his best to avoid and would usually succeed in avoiding dangerous off-road situations. Nevertheless, I find it very difficult to believe that he has “never” experienced on a push bike the phenomenon that was put to him.
[136] T224-225.
Again, I infer from the plaintiff’s answer in this form that he was determined, by reference to his skill and experience as a bike rider, to distance himself as far as possible from the way in which the defendants say the accident occurred. It is the defendants’ case that it was something like this that happened. The plaintiff left the bitumen part of the track to go around the defendants, it was dark, there were trees to be expected at various locations along the right-hand side of the track[137] and it was important for the plaintiff to resume riding on the bitumen fairly quickly. This would have required him to negotiate the raised edge, in this case, unsuccessfully.
[137] Some of these trees and their proximity to the trackside can be seen in the various photographs tendered by the parties.
There were other aspects of the plaintiff’s evidence, perhaps of less significance than those dealt with to this point, that also caused me concern. Mr Wilding said that he did not need to signal in any way when he approached the defendants because they were already facing him and on his side of the track as if they were or had been walking towards him on their incorrect side of the track. This makes little sense. It was not disputed and I have no reason at all not to accept, that the defendants were walking with their dogs in the same direction that Mr Wilding was travelling. The defendants had started quite a long way before the Stephen Terrace bridge and were pursuing their usual route towards the city. It might have appeared to Mr Wilding that one or both of the defendants were facing him but this could only have been at a time when he was quite close to them given the complete absence of artificial lighting along that part of the southern track. That one or more of the defendants appeared to be facing him is more likely to be explained by the defendants’ account that they only perceived the presence of Mr Wilding at the last moment as he came upon them and attempted to pass them such that this may have caused them to be startled and to turn. In my view, the fact that Mr Wilding perceived the defendants to be facing him is more consistent with his coming upon them at speed than with his having observed them at sufficient distance so as to enable him to consciously decide that he did not need to sound his bell.[138] The explanation given for failing to ring his bell at night and in circumstances where there was a group ahead of him on the track strikes me as more likely to be reconstruction and an attempt to understate the speed at which he approached the defendants that night rather than an accurate explanation of the events.
[138] In this respect the answer at T217.2 to 217.5 is revealing.
Mr Wilding in his case also placed some emphasis on his allegation that Ms Beger castigated him with words to the effect “you silly man. It was not my dog’s fault”. He also maintained that Ms Beger and Mr Burgemeister at first gathered up their dogs and left him lying on the track. Even after they returned Ms Beger was repeatedly importuning Mr Burgemeister to leave. Both Ms Beger and Mr Burgemeister gave broadly similar accounts in this respect different from Mr Wilding’s. Ms Beger denied saying words to the effect “it’s not my dog’s fault”. On the defendants’ case the accident occurred immediately in front of the defendants as the plaintiff attempted to return to the bitumen track and no dogs were involved. If this is how the accident happened there would be no occasion for Ms Beger to assert “it was not my dog’s fault” but, in any event, even if she did, plainly it would not have been her dog’s fault. However, on the plaintiff’s case, the accident occurred some fifty to seventy metres away from the point where he passed the defendants. It would have taken some time for the defendants to traverse that distance so as to come upon the accident. By then Mr Wilding would have been well and truly on the ground, in significant pain and unable to move.
I listened to and observed Ms Beger giving her evidence over quite some time. She did not strike me at all as the sort of person who would berate another person in those circumstances nor as the sort of person who would insist upon she and Mr Burgemeister departing so as to leave the plaintiff alone and without assistance before an ambulance had arrived. In addition, given the lighting conditions at the time it is unlikely that Ms Beger would have seen whether or not a dog might have been involved in an accident occurring some fifty to seventy metres away from her. No doubt words were exchanged and in the excitement and stress of the moment it is possible that words were employed that might not have been used by a cooler head.
If Ms Beger did say words to the effect that has been attributed to her, then I do not accept that they are in any way an admission that her dog was somehow involved in the accident. The language alleged is quite consistent with the defendants’ account of the accident happening right in front of their eyes to a cyclist who had come upon the two defendants and two of their dogs too quickly, without warning and who was thereby forced off the track as he went around them. Such words, as alleged, if instinctively uttered in these circumstances and before realising the full ramifications of the accident, might be seen as understandable.
Also of more general concern was Mr Wilding’s hedging about matters I am satisfied he told Mr Romanas[139] and his resistance, to the point of being captious, when asked to concede what might have been thought to have been matters of common experience including the regular presence of people, including children, on the track from time to time which would require a cyclist to manoeuvre their way around[140] and the problems that might confront cyclists coming upon longitudinal ruts or depressions in the pathway being travelled.[141]
[139] T216-218.
[140] T220-221.
[141] T224-225.

It is not uncommon for a party’s case, as presented at trial, to depart from or even be inconsistent with the case as pleaded. The plaintiff’s evidence would appear to have done so in this case in a number of respects. However, there can be many reasons and possible justifications for this. The plaintiff was not cross-examined on any discrepancies between his evidence and the case as pleaded. He was not given an opportunity to explain how these discrepancies might have come about; he was not asked to confirm or otherwise that the statement of claim had been prepared in accordance with his instructions and that he had read it and agreed with its accuracy at the time of filing. In these circumstances, I have not had regard to any such discrepancies when assessing the reliability of the plaintiff’s account given in evidence. They would have carried limited weight in any event.
Conclusion as to liability
For the reasons set out above I do not accept that the plaintiff has given an accurate account of how the accident occurred.
In addition, I have no reason to reject the account of either defendant. The cross-examinations of Mr Burgemeister and Ms Beger did not raise any significant inconsistencies in their evidence generally and, in particular, as to how the accident occurred. There was a period when Mr Burgemeister became very confused, conflating events and activities experienced with an earlier German Shepherd dog with events experienced with Buster. However, following my consideration of his evidence as a whole, this, and other aspects of his evidence which also lacked clarity, did not cause me to doubt his evidence concerning the essential events on the night in question. In my view, each defendant tried their best to assist the court and to recall as best they could the events of the night in question. No doubt, given the long passage of time between the accident in 2004 and the trial, matters of detail will have been lost and matters of detail will have been confused or mistaken. However, I am satisfied that the accounts they gave as to how the accident came about are more reliable and more likely to be correct than the account given by the plaintiff.
In any event, even if I were to take the plaintiff’s evidence at its highest, I would not be satisfied, on a balance of probabilities, as to the identity of any third dog. On the plaintiff’s own account, he would only have demonstrated, at best, that the third dog was either Spy or Bluey. There is nothing else in the evidence, in my view, that would enable me to be satisfied, on a balance of probabilities, that any such third dog was either Spy so as to render the first defendant liable or Bluey so as to render the second defendant liable.
For each of these reasons, of independent operation, the plaintiff’s case on liability fails.
Damages
Usually where a claim for personal injury is to be dismissed it will be appropriate and desirable for the court to proffer an assessment of damages in case an appeal by the plaintiff on liability were to succeed. In the present case, any assessment of the plaintiff’s damages would fall within a relatively narrow compass.
Travel expenses ($53.20) and special damages ($2,965.75) have been agreed.[142]
[142] T696.
The medical evidence and that of the plaintiff, his partner, Leslie Wilding, and her brother, Eoghan Cavanagh, justifies a finding that the plaintiff was totally incapacitated for and unable to perform the type of work to which he ordinarily was suited, for approximately 12 months or so.
The medical evidence, in its essentials, was not challenged. According to Mr Chehade, the treating orthopaedic surgeon, Mr Wilding suffered a fracture to his proximal left femur in the sub-trochanteric region. As a consequence he underwent open reduction and internal fixation of the fracture with an intramedullary femoral nail. As at the time of trial, that nail remained in situ but without causing any problem. According to Mr Chehade, it is unlikely that it will become problematic in the future but if it does so the plaintiff may require removal of the nail. Other than that, Mr Chehade did not anticipate any future treatment requirements. The injury and the surgery was associated with a lot of bleeding for which the plaintiff required a blood transfusion.
Following the operation it took approximately 12 months for the process of full mobilisation and rehabilitation to occur. During the early months of this process, Mr Wilding was in significant pain and discomfort and was significantly restricted as to his movements. On 11 March 2005, some 11 months after the accident, Mr Wilding was operated on for removal of the distal locking screws around the knee which were causing irritation and restricting his rehabilitation. Following the removal of the screws Mr Wilding’s pain resolved and he was able to make a full recovery with respect to the range of motion of his knee.
Mr Wilding has been left with significant scarring around the region of the left hip where the insertion of the nail occurred and over his knee. During his rehabilitation period, Mr Wilding was unable to participate in martial arts (kendo and ninjutsu) as to which he had reached a very high level of proficiency. As at trial, he had not resumed involvement in this activity. It is likely, on the evidence, that he is now physically capable of pursuing this type of activity. However, having been forced to cease his participation for such a long period of time it may have become impracticable, given his age and other circumstances, for him to resume his martial arts at a level of proficiency he once enjoyed. In this respect, I am prepared to give Mr Wilding the benefit of the doubt and to accept this sequelae as a long term loss of amenity caused by the accident.
In assessing damages for Mr Wilding’s non-economic loss with respect to this closed period of approximately 12 months the relevant legislation[143] requires me to assign to Mr Wilding’s total non-economic loss a numerical value on a scale between 0 to 60. The scale is to reflect 60 equal gradations of non-economic loss from a case in which the non-economic loss is not severe enough to justify any award of damages to a case in which the person suffers non-economic loss of the gravest conceivable kind. In undertaking this exercise I have considered the evidence of Mr Wilding himself, of his partner and her brother and the medical evidence adduced on the plaintiff’s behalf being the written reports and oral evidence of Mr Chehade and the evidence of Dr Suzette Blight. Whilst each case must be decided on its own merits and, as a consequence, other cases decided on different facts and in different circumstances can only be of very limited, if any, assistance, I have also had regard to other authorities in the area, the material facts of which might be seen to share some similarities to the present case.[144]
[143] Section 24B of the Wrongs Act 1936, see now s52 of the Civil Liability Act 1936.
[144] See for example, Harradine v Bishop [2003] SADC 111; Allan v Fletcher [2001] SASC 167; Rayner v Mecozzi & Vu [2000] SADC 5; Woods v Leane [2002] SADC 2 and Varnas v Peake [2001] SASC 330.
In my view, whilst the plaintiff suffered a very nasty injury with serious consequences for him for at least 12 months thereafter, it also is to be borne in mind that, for all intents and purposes, he ultimately made a full recovery after approximately 12 months. In the circumstances, the plaintiff’s total non-economic loss warrants a numerical value of 14 which, when the approach mandated by s52(2)(d) of the Civil Liability Act is applied, leads to an award of $21,450. In addition to this figure, the plaintiff would be entitled to interest calculated in accordance with the principles set out in Wheeler v Page and Harris.[145] I have not heard any submissions on this point and, should it become necessary to do so, I would like to hear further from the parties before calculating any interest entitlement with respect to this amount for non-economic loss.
[145] (1982) 31 SASR 1.
Claims for loss of consortium and past gratuitous assistance[146] were abandoned by the plaintiff during the trial.
[146] Mr Wilding’s partner’s brother, in particular, and Mr Wilding’s partner to a lesser extent rendered significant gratuitous assistance to Mr Wilding during the first few months during which he was “confined” to a bed or a lounge or chair in the house. However, the plaintiff conceded that given each of their respective relationship to the plaintiff, at the time, no entitlement to an award for gratuitous assistance arose.
For reasons which I will set out shortly, this is as far as I am prepared to go towards an assessment of the plaintiff’s loss.
By far the most significant component of the plaintiff’s claim is a claim for past economic loss. During the two financial years completed immediately prior to the accident and the financial year ending 30 June 2004 (some two months after the accident) the plaintiff’s tax returns disclose taxable incomes of $39,860, $44,855 and $37,380 respectively. If this last figure is grossed up to take account of the two months at the end of that financial year during which the plaintiff was laid up with his injury, the effective taxable income for the 30 June 2004 financial year would be $44,856. This three year history, prior to the accident, of earning in the order of $40,000 to $45,000 a year taxable income might be a starting point when attempting to assess the value of the loss of earning capacity suffered by the plaintiff for the 12 months or so following the accident.
However, the plaintiff’s claim in this respect is rather more complex. The plaintiff asserts that for that 12 month period he had an opportunity to work full time for one of the companies in the Elan Trading group of companies,[147] as a consultant engineer[148] servicing the group’s mill operations in Samoa. According to the plaintiff had he taken up this opportunity he would have been entitled to at least 12 months work at a salary of $100,000 together with other benefits. In addition, on the plaintiff’s case, the accident caused him to lose two months of short term contract work with the same enterprise at $5,000 per month with a success bonus of $7,500. The evidence given with respect to these matters was detailed, confusing and in some respects unsatisfactory. Nevertheless, were the plaintiff’s case to be accepted in part or in whole in this respect and after allowing for contingencies, his economic loss might be greater and arguably significantly greater than the $45,000 or so he had earned in previous years.
[147] The guiding mind of which, apparently, was a Mr Donald Fleming.
[148] The plaintiff had no formal engineering qualifications; he did have a history, largely self taught, of working on mechanical engineering projects.
In addition, there is an argument that the Samoa commercial opportunities lost by the plaintiff were not confined to just the 12 months during which he was physically incapable of working, but also included lost opportunity for continued work of the same nature thereafter, that is, at least until the Elan Group went into liquidation some time in late 2005. In addition to an assessment for economic loss taking account of these matters, the plaintiff would have an entitlement, perhaps depending upon the ultimate findings as to the nature of any employment opportunities lost, to something for superannuation contributions and to interest.
I have considered whether I should attempt an assessment of the plaintiff’s economic loss, conscious of the potential inconvenience to the parties and any Full Court in the event that I were not to do so and an appeal on liability were to succeed. However, I have taken the view that it would not be either practical or appropriate to attempt an assessment in the present circumstances.
In this case, causation is the central issue; the plaintiff’s and the defendants’ respective accounts are diametrically opposed on this issue. I have rejected the plaintiff’s account as to the cause of the accident. In a number of respects, I have been very critical of his evidence and his approach to giving his evidence on liability issues. The plaintiff’s evidence concerning the Samoa opportunities to have exercised his otherwise lost earning capacity was strenuously challenged by the defendants. They argue that he has either manufactured, that is, made up or significantly exaggerated the nature of these opportunities and the likelihood of them coming to pass. This asserted loss of opportunity is the centrepiece of the plaintiff’s damages claim with respect to economic loss. Any consideration of his evidence on this topic necessarily will be influenced by my unfavourable view and ultimate rejection of the plaintiff’s evidence concerning the cause of the accident. Ex hypothesi, in the event that my findings on liability were to be reversed the validity of any assessment of this aspect of the plaintiff’s damages would also be compromised.
In addition, I could only proceed to an assessment on the assumption that the plaintiff’s account of the cause of the accident were to be accepted, contrary to my findings. However, this would not necessarily mean that all aspects of the plaintiff’s evidence would be accepted and the corresponding aspects of the defendants’ evidence rejected. Given my findings, for example, as to the manner in which the plaintiff was riding on the night, it would not be possible to resolve the defendants’ alternative allegations of contributory negligence unless and until my findings were reversed and other findings substituted.
For example, if the plaintiff’s account that the accident occurred some 50-70 metres ahead of the defendants upon his hitting a dog crossing his path were to be accepted, that would still leave open findings, for example, concerning his manner of riding and the nature of his lookout at the new established point and time of the collision. I have not made any findings in these respects and it would involve speculation to do so at this stage.
Had the problem concerning my difficulty in assessing any contributory negligence been the only difficulty I could have proceeded to an assessment of economic loss but left the question of contributory negligence to another day. However, the first problem I have identified is, in my view, more intractable.
Any assessment of past economic loss damages I might make at the present can only be of assistance in the event that my findings as to liability were to be upheld, in which case they would be superfluous. I am not in a position to sensibly or accurately assess such damages in a way that could withstand any scrutiny in the event that my findings as to liability were to be overturned. In these circumstances I do not propose to consider further the plaintiff’s claim for economic loss. I appreciate that this ultimately may lead to some inconvenience to the parties but, in my view, this cannot be avoided.
Conclusion
The plaintiff’s claim against each defendant is dismissed. I will hear the parties on the question of costs.