Yeats v Nominal Defendant

[2003] NSWSC 583

CITATION:	Yeats v Nominal Defendant & Ors [2003] NSWSC 583
HEARING DATE(S):	16 - 20 June 2003
JUDGMENT DATE:	30 June 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The first and second defendants are to have judgment on the claims made against them by the plaintiff. The plaintiff is to pay the costs of the first and second defendants. The Exhibits may be returned.
CATCHWORDS:	motor vehicle accident - roundabout - unidentified vehicle - design and signage - no question of principle.
LEGISLATION CITED:	Motor Accidents Act 1988. Supreme Court Rules 1970, Pt 33.
CASES CITED:	Livesey v NSW Bar Association (1983) 151 CLR 288. Webb v The Queen (1993) 181 CLR 41.
PARTIES :	Garry Neil Yeats (Plaintiff) v Nominal Defendant (First Defendant) Roads & Traffic Authority of NSW (Second Defendant) TNT Australia Pty Limited (Third Defendant)
FILE NUMBER(S):	SC 20681 of 2000
COUNSEL:	Mr M J Cranitch SC/Mr D J Hooke (Plaintiff) Mr W Fitzsimmons (First Defendant) Mr R W Seton SC (Second Defendant) Mr J Parker (Third Defendant)
SOLICITORS:	Beilby Poulden Costello (Plaintiff) David McLachlan (First Defendant) McCabe Terrill Lawyers (Second Defendant) Ebsworth & Ebsworth (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Monday 30 June 2003

20681 of 2000 Garry Neil Yeats v Nominal Defendant & Ors

JUDGMENT

1 MASTER : On 7 January 1998, the plaintiff suffered personal injury as a consequence of a motor vehicle accident. He brought this claim for damages against three defendants.

2 The hearing commenced on 16 June 2003. It proceeded over 5 days. During the course of the second day of the hearing, agreement was reached between the plaintiff and the third defendant and in respect of certain of the Cross-Claims between the defendants (other than the claims between the first and second defendants). By consent, all of these claims were dismissed. The plaintiff’s claim then proceeded against the first and second defendants only.

3 The accident took place in the early hours of the morning. It was dark. There were no witnesses to the accident.

4 At the time, the plaintiff was employed by the third defendant as a truck driver. He was an experienced driver. He was driving a semi-trailer in or about the northern roundabout near Armidale. He was travelling in a southerly direction. He may have driven over this section once before. There were two southbound lanes as he approached the roundabout. He entered the roundabout in or about the left lane and at some stage was straddling both lanes.

5 The roundabout is on the highway and bypasses Armidale. It is first approached in a 100kph speed zone. At the time of the accident, the speed was then reduced to 80kph (it was preceded by an 80kph ahead sign) and there was an advisory speed of 25kph (it was located about 150 metres from the roundabout).

6 The roundabout was extremely well lit (the plaintiff said that it was like 12 o’clock in the day). The conditions were dry and fine.

7 It is alleged that whilst the plaintiff was in or about the roundabout, an unidentified vehicle also appeared in it. The plaintiff’s case presented at the hearing was that he saw its headlights only and that this vehicle caused him to change direction so as to avoid a collision. He said that he moved to the left and then to the right. It is also his case that whilst engaged in these manoeuvres, he heard the load shift on his vehicle. The vehicle had been loaded by other employees of the third defendant. Due inquiry and search was not in issue.

8 The roundabout came into use in December 1994. The incidence of crashes on the Bypass roundabouts had been higher than expected. An audit of the Armidale Bypass was carried out in August 1995. A Post Completion Review was made in February 1996. There was a proposal for remedial treatment to the roundabouts and an estimate of cost was provided. The plaintiff contends that the roundabout was at the time of the accident afflicted with design (it should have been super elevated) and other faults (relating inter alia to matters of signage and lack of textured strips). It was said to be unsafe. Subsequent to the accident, some modification did take place (including a 60kph sign).

9 The commencement of the hearing was considerably delayed by reason of the need for various amendments and the late service by the plaintiff of particulars under Pt 33 of the Supreme Court Rules 1970. Ultimately, what was then agitated in these skirmishes proved to be of no significance. Delay was also caused by an application that I disqualify myself.

10 The application was founded on criticism made in a judgment in relation to evidence given by the solicitor for the plaintiff in an unrelated application heard by me during 2001. It was said that both the solicitor and his client (the plaintiff) feared that they would not get a fair hearing. All other parties took the stance that there was no proper basis for disqualification.

11 I refused the application and the trial proceeded. In my view, the application was devoid of any substance. I did not consider that the circumstances of this case gave rise to any reasonable apprehension of prejudice, partiality or pre-judgment (Livesey v NSW Bar Association (1983) 151 CLR 288 and Webb v The Queen (1993) 181 CLR 41).

12 At the outset, I inquired of counsel as to whether or not the solicitor would be called upon to give evidence in this case. Ultimately, it was established that he would not be required to give any evidence.

13 The solicitor is now acting for an unrelated client in an entirely different case. The criticism was made in a case heard about two years ago. I should add that until reminded by counsel, I did not recall the name of the solicitor and I had forgotten the criticism.

14 Following the refusal of the application, counsel for the plaintiff asked me to give reasons for that decision. I informed the parties that those reasons would be set forth in the ultimate judgment. After the reserving of that judgment, I was informed by counsel that reasons were no longer required.

15 I shall now mention certain material that emerged during the evidence in chief given by the plaintiff and certain of the documentation tendered during his case in chief. It demonstrates his presentation of the case.

16 The plaintiff was born on 9 April 1953 (he is now 50 years of age). He left school in 1968. He did not qualify with the School Certificate.

17 Prior to his employment with the third defendant, he had had a variety of jobs and for a time had conducted his own backhoe business. He commenced employment with Comet in 1986. Subsequently, he started driving trucks (all sorts of trucks, including trailers). He was a relief or back-up driver. He said that he really loved the job.

18 In the early 1980’s, he had a back injury driving a backhoe. He had surgery (a laminectomy). He did not have any problems until he started with Comet and used to do unloading of trucks (which he said was very hard). His back pain came back around 1994 and he had some treatment from a chiropractor (which, in the main, kept the problem under control). If he hurt his back at work, he just took holidays for awhile. In 1997, he had gallstones removed.

19 He also gave the following evidence:-

“Q. do you recall prior to 1998 ever having problems with memory or recall?
A. No, not really.

Q. You understand that there is some suggestion you might have had some problems with memory recall prior to 1998?
A. Yes.

Q. Have you any memory of complaining about that at any time?
A. I cannot say, I am not sure, that is all I can say.

Q. In any event, apart from occasional problems with your back, you were engaged full time driving as a relief driver with Comet, and that subsequently became TNT, as we know?
A. Yes.

Q. And you drove all manner of trucks, as I understand
your evidence, including some trailers interstate?
A. Yes.”

20 I shall now turn to the version of the accident given by the plaintiff. He thought he saw an 80kph sign. He did not think that he saw any other speed limiting signs. He was comfortable with his speed as he went into the roundabout. His vehicle may have been over a bit on the other lane. He saw lights in his side mirror. He thought that they were approaching “very quick” on his right side. He would say that he would have killed the occupants of that vehicle, if he had continued on his course. He said that he swung away from the car and then “swung back the other way, on the brakes and everything”. He did this to try and straighten up the vehicle. He felt the load shift on the trailer and the trailer started to topple. That was his last recollection prior to the accident.

21 He had no idea of his speed of travel whilst in the roundabout. The load was sealed and he was unfamiliar with its contents.

22 After the accident, his first recollection was of speaking to a lady when he was not in the truck but on the side of the road. He remembers seeing the police and the ambulance. The police asked him a few questions. He was not exactly sure what he said. He was taken to the Police Station and then to the Airport. He flew back to Sydney and was met by his wife or girlfriend at the time at Sydney Airport. He saw his general practitioner (Dr Lim) and was referred to Sutherland Hospital for X-rays and CT scans.

23 Dr Lim referred him to Dr Selwyn Smith. He was first seen on 5 February 1998. He had been experiencing inter alia anger and anxiety. He was diagnosed as having an Adjustment Disorder admixed with Anxious and Depressed Mood. He continues to consult Dr Smith (every month). I shall later refer to the latter’s most recent reports. He has had counselling and supervised depression therapy. He takes Zoloft and Ativan.

24 He participated in a Return to Work Plan conducted by Re-Start Consultancy Pty Ltd with his employer (Exhibit P). His case manager was a psychologist (Fran O’Connor). It commenced on 23 February 1998. Over a period of approximately eight weeks, he achieved a resumption of driving duties performing deliveries utilising small 1 tonne trucks through to prime movers and semi-trailers.

25 Save for some back problems, (a bit of trouble sitting) he said that he was physically capable of handling the driving. The notes (Exhibit K) and the report of Dr Lim (Exhibit 9A) show that the plaintiff did not see Dr Lim between 14 February 1998 and 11 August 1998. The report shows that Dr Lim was of the opinion that he had suffered soft tissue injury only and that the plaintiff’s physical injuries had healed (but for back pain) by the end of February 1998. Dr Lim noted that he did not want to go back to work and that he felt that he couldn’t cope with driving. The plaintiff’s present view is that he is not capable of driving a truck.

26 He said that he had a few mental problems. Sometimes, he was forgetting which gear he was in. He was sent for a driving assessment at a driving school and he was told that he had failed the test. He said that he was then sent home and that he was not sure what happened after that. “That was it”. His employment was terminated by letter dated 16 September 1999 (on the basis that he was unlikely to return to normal duties). He has been paid worker’s compensation since the termination.

27 He gave other evidence concerning his post-accident condition. He said that after the accident he used to get nervous and angry. He felt different in the head. He used to lose track of time a bit and forget things. His speech was a bit slurred (but it is not too bad now). He used to get a lot of pain in his left leg. He had pain in the back, neck and both shoulders. He had physiotherapy for these problems.

28 He married his present wife in 1999. She conducts a hairdressing salon at Bankstown. He spends most of his time there doing inter alia cleaning. He also has a caretaker job at a block of flats which involves him doing some gardening. He did a successful work trial in a nursery. He has not applied for any other jobs.

29 The cross-examination of the plaintiff and the tender of other material saw the emergence of a different picture (both as to the circumstances of the accident and the plaintiff’s condition). I shall now turn to certain of this material.

30 There was an abundance of documentation which purported to record versions of the accident given by him. Certain of them were recorded shortly after the accident (including those to be found in Exhibit J, the notes and report of Dr Lim and Exhibits 1A and 7B). The documentation throws up inconsistent or different versions and versions which were in conflict with the plaintiff’s evidence in chief.

31 In certain of this material (including the earlier documentation), the unidentified vehicle is presented as having “overtaken” or “went in front of him” or cut off the plaintiff’s vehicle or forced it off the road and causing the plaintiff to brake hard and go into a skid and/or of swerving to avoid impact.

32 In a report from Dr Maxwell (Exhibit 5A) dated 17 February 1998, he was recorded as giving a history of rolling a semi-trailer at Armidale while coming around a roundabout.

33 In a report from Dr Dave (Exhibit marked M) dated 18 May 2000, he was recorded as giving the following history:-.

“… He was involved in a major semi-trailer accident in February 1998 when he was trying to avoid an oncoming semi-trailer (the opposing driver had apparently fallen asleep). He had to take his truck over a cliff about 6 metres and he suffered injuries to his back, head, neck and shoulder and left knee.”

A similar history appears in another report from him dated 6 July 1999 (Exhibit 6B).

34 In a report from Dr Morse dated 14 December 2002, (Exhibit M) he is recorded as giving the following history:-

“On the above date Mr Yeats was driving a truck when he was involved in a collision. He is unsure of exactly what he remembers. He was dazed and he fell unconscious for a period, his head went through the window. He was assisted by somebody. He apparently went to a hospital in the area in northern N.S.W. where the accident occurred and he flew in a plane back to Sydney. He said he can’t recall what happened in the few days after the accident. He didn’t feel too good. Had a head injury and an injury to his left leg. Had two operations on the left knee.
He continued to have on-going physical symptoms and disability.
He was vague, hesitant and uncertain as to his state up till now. He said that he tried to go back to work, did non driving duties, had driving tests and found he wasn’t suitable to drive. He currently doesn’t drive a car.”

35 Before proceeding further, I should add that in considering this material I have taken into account that there can be inaccuracy in the recording process.

36 The evidence of the plaintiff is that he did not see the 25kph advisory sign in his approach to the roundabout. He also said that if he had seen advisory signs (including “Tilting Lorry” sign) they would have made no difference to his driving on that occasion. He was unable to provide any description of the alleged unidentified vehicle. He saw the lights only. Otherwise, he did not see the vehicle, but conceded that it had to have passed him.

37 He was not really sure exactly what his speed was on approach to the roundabout. He thought it was a speed appropriate to negotiate the roundabout (30kph or somewhere like that). He moved into the second lane to lessen the turn as much as possible. He was getting the right hand side of his vehicle as close as was reasonably safe to the traffic island in the roundabout.

38 He was not wearing a seat belt. Indeed, he was accustomed to not wearing one. His truck was fitted with a seat belt. Although it occupied some time, this matter ultimately faded away as an issue.

39 The parties have tendered a prolific volume of documentation (including many expert and other reports).

40 Included in this material are a number of reports from traffic experts. Often, such reports can be of very little assistance. The problem being that such reports may be founded on assumptions of fact which were not established by the evidence.

41 The plaintiff relied on reports from Jamieson Foley. These reports did not proceed on any assumption as to the plaintiff’s speed of travel. A thrust of the report is that as the roundabout was constructed on a “green fields” site, the opportunity was not taken to provide it with super elevation (that is, the outside of the roundabout is higher than the inside). It is then said:-

“It is considered that had the roundabout been supplied with super elevation rather than the urban preference of cross fall, the crash possibly, if not probably, would not have occurred.”

The effect of providing super elevation was said to be to increase the critical or rollover speed for semi-trailers.

42 The defendants relied on competing reports from David R Axup (Exhibit L) and O I Sannikov (Exhibit 4B).

43 I should now mention what the cross-examination and other documentation threw up concerning various of the problems which the plaintiff attributes to the accident.

44 The material relating to his treatment reveals that prior to 9 December 1997 he had a longstanding back complaint. He was then recorded as being very concerned that he may re-injure his back when he recommenced work. His condition has been described as a recurrent low back sprain which had been troubling him for about 4 to 5 years. There were a number of work incidents and he had seen a chiropractor and had received physiotherapy. He was receiving treatment for it shortly prior to the accident and had seen his specialist (Dr Maxwell) on 9 December 1997. It was then thought that an intensive exercise programme and a weight reduction diet would reduce his pain. On 17 February 1998, with regard to his back pain it was felt that he was fit to return to work. It does not appear that he has been seen by Dr Maxwell since 16 January 1998. Ultimately, it was put in submissions that the accident did not bring about any significant change to his back problems.

45 The material reveals that following the accident there was little complaint made concerning his left leg (see inter alia the ambulance report, hospital notes and the material provided by Dr Lim). He gave Dr Smith a history of inter alia bruising to his legs. There was a complaint concerning his right lower limb. It seems that he may have had a couple of other accidents (Transcript p 132). He did not receive treatment in relation to his left knee until during 1999. He was referred to Dr Dave (and was first seen on 5 July 1999). He then gave a history “of recurrent swelling and effusions in the knee with episodes of pain and locking of the medial aspect of his knee joint.” He underwent an arthroscopic examination and was found to have a medial meniscal tear. He then underwent a medial menisectomy.

46 The plaintiff said that he didn’t recall being angry and short tempered before the accident. The material also evidences that complaints of such nature as well as other complaints said to arise from the accident (such as difficulty with sleeping, neck and shoulder problems) were also in being before the accident.

47 His memory problems were presented as being of significance in relation to the termination of his employment. He gave evidence of episodes of forgetfulness which had improved. The medical material (Exhibit K) reveals that he was complaining of memory problems prior to the accident (in 1996 and 1997) and that his general practitioner had sought to have him see a specialist for the purpose of dealing with these and other problems.

48 Apart from what was said by the plaintiff during his evidence in chief, there is little evidence of a loss of consciousness. The plaintiff said that he had no recollection of impact between his head and the vehicle. He did have two lacerations to his head (one to his left parietal scalp and one to his left temporal scalp). There were MR scans. These showed what have been described as non-specific changes. There is issue between experts as to whether these could be seen as being post-traumatic. Dr Wolfenden said that if there was any period of unconsciousness, it would have been very brief and not such as would ordinarily precede serious brain damage. It seems that he was spoken to by police, ambulance and RTA officers at the scene of the accident. The ambulance report (Exhibit H) records a score of 15 on the Glasgow Coma Scale.

49 The plaintiff relies on the reports from Dr Smith and Geoffrey Fox. The defendants rely on reports from Drs Spira, Wolfenden and Roldan. This material throws up conflicting views.

50 Although Dr Smith did see his problems in terms of brain damage, the plaintiff’s case was not presented on that basis. Dr Smith ultimately came to the view that the plaintiff had demonstrated diagnostic criteria for a post-concussional disorder. Dr Smith was not given a history of the plaintiff’s pre-accident memory and temper problems. He considered that there had been improvement in regard to outbursts of “irritability and aggressivity”. He observed that the plaintiff demonstrated memory impairments. He also repeatedly expressed the opinion that the plaintiff was unfit or not able to drive a motor vehicle.

51 Dr Spira noted that there was no retrograde amnesia and no significant post-traumatic amnesia. He also noted that the external evidence of head trauma consisted of no more than a minor scalp laceration which did not require suturing. He agreed that the plaintiff’s apparent cognitive dysfunction in behavioural disturbances were psychogenic sequelae to the accident.

52 Dr Roldan directed trenchant criticism towards the material provided on behalf of Mr Fox. He saw a presentation that implied a level of cognitive disability that appeared to be inconsistent with the extent of any injury that he may have suffered in the accident. He was concerned with the possibility that the presentation in psychometric test performance had been artificially distorted by attempts to feign or exaggerate cognitive disability. He was also concerned with the possibility that the presentation and test performance may reflect pre-accident difficulties with memory and emotional functioning.

53 In June 1999, the plaintiff made an application for licence renewal (Exhibit 8A). In that document he stated that he did not have any physical, medical or mental disability that affected his driving. He has retained his licence and the evidence is that he continues to drive a car.

54 This is a matter in which credibility is a matter of great importance. The case for the plaintiff is largely dependent on his evidence as to the accident and other matters.

55 I have closely observed the demeanour of all witnesses during the giving of evidence. In assessing credibility, I have had regard both to demeanour and evidence.

56 The plaintiff was an unimpressive witness. He gave the impression of being evasive. He exhibited a tendency during cross-examination to avoid being responsive to questions. Lack of recollection was used to deflect many questions. A much used saying was “I’m not sure” or the like. This was often said where a responsive answer could have been expected. Sometimes, questions were simply not answered and the question had to be repeated. Often, a barely audible or an inaudible answer was given. Even his own counsel, experienced difficulty in hearing certain of the plaintiff’s evidence.

57 By way of contrast, when he felt the need to deal with a question by pressing what he wanted to say about his case lengthy outbursts were given. Indeed, during cross-examination from counsel for the first defendant there were instances of what might be described as voluble and angry tirades expressed in a loud voice.

58 He was not candid about his pre-accident condition. Indeed, it seems to me that he endeavoured to present a misleading picture both of it and the effect of the accident.

59 I have come to the view that largely, in the absence of independent corroboration, I do not accept the evidence of the plaintiff (inter alia I do not accept his version of the accident).

60 There is also the question of the reliability of his memory. Although the extent and cause of the problem may be in dispute and somewhat unclear, he does have some difficulty with memory. In my view, his lack of recollection was not as bad as presented and his professed recollection is unreliable. I should add that I am not satisfied that the accident caused any significant change to his pre-accident memory impairments.

61 I do not regard him as a truthful or reliable witness. Conflicting or inconsistent assertions abound in the material. I shall return to the consideration of his evidence in relation to the accident in due course.

62 The plaintiff also called his current wife and his sister-in-law.

63 The plaintiff met his current wife in January 1999 and they married in April 1999. She is Chinese. She came to Australia in 1997. There is a child of the marriage. His wife has a child from an earlier relationship.

64 Whilst she speaks English, it was apparent that she had some difficulty in understanding questions put to her by counsel.

65 She gave evidence of inter alia his memory and anger. She also gave evidence of his driving of the car.

66 She gave the impression of doing her best to assist the presentation of her husband’s case. In my view, her evidence in certain respects needs to be treated with caution. In any event, her evidence was restricted to what was observed by her since January 1999.

67 The sister-in-law gave what is described as before and after evidence. She claimed to have seen the plaintiff at least once a month over the years. Despite her claims, she seemed to be remarkably vague or ignorant in respect of a variety of matters affecting the plaintiff (including his pre-accident problems) during a period of which she described him as being outgoing and more communicative. She gave evidence that was clearly incorrect. I do not regard her as a reliable witness.

68 The first defendant called John Downs. He is now a solicitor. On behalf of the first defendant, he had conducted an interview with the plaintiff and his solicitor. Mr Downs asked a number of questions of the plaintiff. He made notes of the interview in a notebook. From those notes, he prepared a statement. There is no evidence that the statement was adopted by the plaintiff. A tender of it was objected to and rejected.

69 Mr Downs gave evidence that his notes had been destroyed about 2 years ago. He gave evidence of his recollections of a question and answer that took place during the interview. The effect of the answer was that the plaintiff had said that he was travelling at a speed of 40 to 50 kph in his approach to the roundabout.

70 He was cross-examined at some length. He had refreshed his recollection from the statement prior to the giving of his evidence. It appears that he had but a limited independent recollection of the interview.

71 The first defendant called Senior Constable Hinds. He was the investigating officer who attended the scene of the accident. He interviewed the plaintiff.

72 Unfortunately, his notebook suffered damage in a washing machine. He has limited independent recollection of the interview with the plaintiff. He remembers a part of it. He remembers the plaintiff saying that there was a light in his rear view mirror but he did not recall which rear view mirror. This is a matter which is not mentioned in Exhibit J.

73 He prepared Exhibit J (including the narrative contained therein). It shows the plaintiff’s vehicle travelling at a speed of 40 kph. It also contains what may be an erroneous reference to the unknown vehicle overtaking on the “nearside”. Senior Constable Hinds said that it was his practice to record what he was told to be the speed at the time of the accident. He had a recollection of the position of the vehicle following the accident. He measured the position. He described the rear of the vehicle as being 10 metres to the south of the intersection with the front of the vehicle being further south. It was on its side and off the road on a slant in a ditch.

74 The narrative seems to be a shorthand compilation of the information gleaned from his investigation of the accident.

75 One reading of the narrative may see it as directly attributing the rolling over to the shifting of the load.

76 The second defendant called Mr Vickery. He is a Road Traffic Safety Manager with the second defendant. He has been in its employment for about 27½ years. He made an inspection of the roundabout on the day following the accident. A document prepared by him subsequent to that inspection is Exhibit D.

77 He had not seen and was not aware of any super elevated roundabout in the area that he looks after. He did not accede to the suggestion that super elevation would improve safety on such a roundabout. He thought that it would be unsafe unless it was in very special circumstances.

78 Mr Vickery has expertise and experience in the areas of road traffic safety. He was an impressive witness. He gave his evidence in a careful and measured fashion. I accept his evidence and prefer it to competing views expressed by other experts.

79 Although the plaintiff gave evidence of slamming on the brakes, there appears to be no evidence of skidding. There is no evidence to suggest that his vehicle made contact with the kerb. It appears that his vehicle proceeded through and out of the roundabout (at its southern exit) and rolled over outside the roundabout (ending up on its side). It was extensively damaged and was treated as a write-off.

80 He did not see the advisory sign. His evidence is that such signs would not have affected his approach. His evidence is that he was alert as he approached the roundabout. Textured strips would not have made any difference. The roundabout was extremely well lit. His versions make no complaint about the roundabout itself. There is evidence which suggests that he may have approached the roundabout at a speed of 40 – 50kph and that he may have been travelling at 40kph at the time of the accident. He may have been driving at a speed which did not enable him to continue only in the left lane during the roundabout.

81 During submissions, some brief agitation was given to the question of whether in so straddling the two lanes he was in breach of the relevant regulations.

82 Whilst it might be thought to be a breach, the matter was not fully argued and it was really left up in the air. Accordingly, for present purposes I put it aside.

83 In my view, his version of the accident was implausible and l am not satisfied that any other vehicle was involved in the accident.

84 There is a lack of independent corroboration and his recollection is unreliable. His version was in conflict with or inconsistent with various other versions of the accident (including earlier versions which were given when it could be expected that the details of the accident would be fresher in his mind). There are versions which appear in the material which make no reference to the involvement of another vehicle.

85 I am not satisfied that this accident was caused by any failure to make modifications in and about the roundabout (be it by way of design, signage, strips or otherwise).

86 I am not satisfied that either the first or the second defendant has been in breach of any duty of care that caused damage to the plaintiff. In my view, the most likely explanation for the accident is that the plaintiff was both inattentive and travelling at a speed that was too fast in the circumstances. He should have seen the advisory sign and taken it into account. It seems to me to be likely that because he did not do so and thereby reduce his speed, he came to lose control of his vehicle and it rolled over.

87 In my view, he has failed to discharge the onus of proof (on the balance of probabilities) on the questions of liability.

88 The findings that have been made make it is not necessary to deal with questions of contributory negligence. However, for the assistance of the parties, I may add that it seems to me that the circumstances of this case would justify a finding of contributory negligence against the plaintiff. In reaching that view, I have had regard to inter alia the inattention and excessive speed.

89 The claim for damages asserts personal injury concerning inter alia memory loss, headaches, psychological problems, neck, back and left knee injury.

90 The claim for damages against the first defendant is to be assessed according to the regime prescribed by the Motor Accidents Act 1988. The claim for damages against the second defendant is said by the plaintiff to be assessed under the common law regime. The second defendant has advanced a contrary view. In this case, that question need not be pursued.

91 Against the first defendant, the components for damage claimed are for past and future out-of-pocket expenses, non-economic loss, past and future economic loss, Fox and Wood component and loss of superannuation contributions.

92 Against the second defendant, the components for damage claimed are for past and future out-of-pocket expenses, general damages, interest on general damages, past and future economic loss, Fox and Wood component, interest on past economic loss, loss of superannuation contributions and interest on past loss of superannuation.

93 For the purposes of the assessment of damages, some common ground was reached. It was agreed that out-of-pocket expenses were in the sum of $93,605.17. It was agreed that the Fox v Wood component was $14,671.02.

94 There was a marked contrast between the competing views taken by the plaintiff on the one hand and the defendants on the other. The plaintiff’s case was that he had suffered very severe injuries and that his claim was a substantial one. The defendants took the view that the accident had not brought about any significant change in his condition.

95 I am not satisfied that he suffered severe injuries. Save for any psychological problems that can be related to the accident, I am not satisfied that the accident brought about any significant change to his condition.

96 I have earlier expressed the view that the plaintiff should fail on questions of liability. The emphasis at trial has been directed to matters other than questions of quantification. Because of the view taken in respect of the liability issues, it is now unnecessary to proceed to an assessment of damages.

97 The first and second defendants are to have judgment on the claims made against them by the plaintiff. The plaintiff is to pay the costs of the first and second defendants. The Exhibits may be returned.

98 In the circumstances, it is unnecessary to determine the Cross-Claims between the first and second defendants. I shall defer further dealing with them until I further hear from the defendants.

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Last Modified: 07/01/2003