Zilio v Lane - [2009] NSWDC 226

CITATION: Zilio v Lane [2009] NSWDC 226

HEARING DATE(S): 18-22 and 25 February 2008; 28 March 2008; 20 June 2008; 2-6 February 2009; 17 April 2009; 1 and 22 May 2009, 23 July 2009

JUDGMENT DATE:
28 July 2009

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Judgment for the defendant.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to restore.
(4) Exhibits retained for 28 days.

CATCHWORDS: TORT - motor vehicle accident - personal injury - liability - contributory negligence - judgment for defendant - alternative finding of 100% contributory negligence

LEGISLATION CITED: Civil Liability Act 2002 (NSW), ss 5S and 5R
Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), ss 38 and 135
Motor Accidents Compensation Act 1999 (NSW), s 138

CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Goodsell v Murphy [2002] NSWCA 216
Harrison v Melhem & Anor (No 1) [2006] NSWSC 1258
Harrison v Melhem & Anor (No 2) [2006] NSWSC 1293
Harrison v Melhem [2008] NSWCA 67
Jones v Bradley [2003] NSWCA 81
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Knight v GIO (NSW) (New South Wales Court of Appeal, Kirby P, Priestley and Cole JJA, 13 April 1995, unreported)
MacKenzie v Nominal Defendant (2005) 43 MVR 315
Nominal Defendant v Lane [2004] NSWCA 405
Ragen v The Nominal Defendant (No 3) [2007] NSWDC 86
Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199
Vale v Eggins [2006] NSWCA 348
Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25
Yates v Jones (New South Wales Court of Appeal, 7 December 1989, unreported)
Yip v Zreika [2001] NSWCA 446

PARTIES: Plaintiff: Ricky Zilio
Defendant: Heather Lane

FILE NUMBER(S): 1220 of 2005

COUNSEL: Plaintiff: Mr D Campbell SC / Mr T Meakes
Defendant: Mr D Wilson

SOLICITORS: Plaintiff: Beston Macken McManis
Defendant: Sparke Helmore Lawyers

Judgment

The plaintiff’s claim for damages

[1] The plaintiff by way of Statement of Claim filed on 7 April 2005 brings proceedings for damages arising out of circumstances in which the plaintiff suffered very serious injuries on 19 July 2003 while riding his motorcycle along X Street, Blacktown, and collided with a nearby parked vehicle. [The name of this street and certain other personal details have been anonymised for privacy reasons.] The defendant, according to the Statement of Claim, “reversed her vehicle into the path of the plaintiff’s motorcycle, as a result of which the plaintiff swerved to avoid the 4 wheel drive vehicle and collided with a nearby parked vehicle” (paragraph 2 Statement of Claim).

[2] The plaintiff suffered the following serious injuries:

[3] The plaintiff suffered the following extensive disabilities:

(a) Paraplegia below the waist;
(b) Profound paralysis of both lower limbs;
(c) Urinary incontinence;
(d) Incontinence of faeces;
(e) Susceptibility to trophic skin problems;
(f) Requirement to use suppositories for bowel evacuation;
(g) Occasional requirement to evacuate bowels manually;
(h) Inability to stand;
(i) Inability to walk;
(j) Irregular blood pressure;
(k) Spasticity below the waist;
(l) Absence of voluntary motor power in the lower limbs;
(m) Weakness of the postural musculature;
(n) Difficulty in using a manual wheelchair;
(o) Requirement for assistance with transfers;
(p) Inability to control body temperature;
(q) Inability to cope with heat;
(r) Grossly impaired balance;
(s) Increased reflexes in lower limbs;
(t) Susceptibility to respiratory tract infections;
(u) Susceptibility to urinary tract infections;
(v) Requirement to undergo continuing physiotherapy;
(w) Need to wear splints to prevent spasticity and deformity;
(x) Anxiety;
(y) Depression;
(z) Poor body control;
(aa) Wasting of both legs;
(bb) Inability to control body position;
(cc) Neurogenic bladder;
(dd) Neurogenic bowel;
(ee) Inability to control the bladder necessitating regular catheterisation;
(ff) Inability to control the bowel necessitating a regular daily regime to void bowels;
(gg) Inability to transverse stairs or stepped or rough or uneven ground;
(hh) Surgical scarring;
(ii) Total dependence on a wheelchair;
(jj) Grossly impaired motor function;
(kk) Grossly impaired sensory function;
(ll) Severely defective motor skills;
(mm) Poor self esteem;
(nn) Loss of confidence;
(oo) Fatigue;
(pp) Requirement for constant supervision;
(qq) Requirement for assistance in all aspects of daily living;
(rr) Inability to engage in any form of employment;
(ss) Severe restriction in recreational, domestic, social and sporting activities;
(tt) Loss of mobility;
(uu) Lack of agility;
(vv) Frustration;
(ww) Difficulty in maintaining or controlling posture;
(xx) Effective destruction of sexual function;
(yy) Inadequacy of movement in ankle joints;
(zz) Inability to stand. The plaintiff requires a standing frame for this purpose;
(aaa) The plaintiff is at risk of developing osteoporosis;
(bbb) Muscle contractures and spasms;
(ccc) Delayed educational development;
(ddd) Dysauthonomia (dysreflexia);
(eee) Recurrent urinary tract infections which on occasions have required the admission to hospital;
(fff) The plaintiff is unable to shower and wash himself properly and requires assistance with this;
(ggg) The plaintiff is unable to dress himself properly and requires assistance with this;
(hhh) The plaintiff is unable to toilet himself properly and requires assistance with this;
(iii) Problems with dry skin;
(jjj) Progressive scoliosis. The plaintiff is required to wear a back brace in an attempt to control this;
(kkk) Skin irritation due to the back brace causing some rubbing;
(lll) Dysphonia;
(mmm) Diminished respiratory effort;
(nnn) An ingrown toenail resulting in left big toe infection and ulceration. This necessitated hospitalisation and appropriate treatment;
(ooo) Nightmares;
(ppp) Memory difficulties relating to the retention of more complex verbal information;
(qqq) Reduced reading and phonetic abilities, necessitation remedial teaching;
(rrr) Need for counseling;
(sss) Scoliosis necessitating eventual surgical correction;
(ttt) Susceptibility to bone fractures due to development of osteoporosis;
(uuu) Post traumatic stress disorder;
(vvv) Loss of self esteem and dignity;
(www) Deterioration in family and social relations.

Procedural and witnesses problems

[4] The trial of these proceedings has suffered a number of very unfortunate and mostly unforeseeable delays.

[5] When the matter came before me on 1 May 2007, plaintiff advised that the sole witness (Mr Hein) was out of the jurisdiction and unavailable to give evidence for an unspecified period of time. In addition, the plaintiff’s counsel complained about a late expert report from Professor Starmer, which the plaintiff had difficulty meeting. I vacated the trial date and made directions for the plaintiff’s solicitor to file an affidavit setting out proposals for the taking of evidence of Mr Hein including arrangements to return him to Australia. The matter came before Johnstone DCJ who stood the matter over on the basis that the court required “a better affidavit”. The matter was then referred to the List Judge and given a second hearing date on 18 February 2008. It was noted that the evidence of Mr Hein may be given by videolink and that the plaintiff would meet all those costs.

[6] When the matter came before me for hearing on 18 February 2008, Mr Hein was now available, and gave evidence. However, there was a second witness, Mrs Lane (the defendant’s mother), who was the passenger in the motor vehicle, and who was to be called by the defendant. Most unfortunately, after the trial had been running for a week, Mrs Lane received some sudden medical news that she required immediate surgery. This time, the application was for an adjournment, and it was made by the defendant, as to start the trial a third time would have been unthinkable. I adjourned the matter part heard on 25 February 2008 and put the matter in the Inactive List, noting that apart from some additional evidence from carers, the plaintiff closed its case as at that stage.

[7] Mrs Lane’s extremely serious illness, which involved extensive post-operative treatment, meant that she remained unable over the following year. Although I invited the parties to list the matter at any time for the taking of her evidence, I was informed this was simply not possible until early 2009. I set the matter down for hearing on 2 February 2009. By that stage Mrs Lane’s health had improved to the extent of being able to give evidence, although she was not well enough to come to court, and her evidence was taken in her home.

[8] The matter resumed hearing on Tuesday 3 February 2009 and Mrs Lane’s evidence was taken at her home on 4 February. Hearing of the matter was completed on 6 February and, in view of the long delay, the parties proposed to provide written submissions and the matter was stood over to 17 April. On 17 April there was no appearance by the plaintiff and the plaintiff had failed to comply with the timetable. In addition, the plaintiff and defendant had entered into an agreement that they would only exchange submissions on liability. This meant that instead of having the submissions of all parties on all issues, I only had the defendant’s submissions on liability. I accordingly made a peremptory order for the plaintiff to serve submissions in 14 days.

[9] On 1 May 2009, the last day for filing these submissions, Mr Campbell SC advised that there were problems in compliance with the orders and asked for an extension. I extended time for the written submissions, again noting that this order was peremptory in nature, and stood the matter over to 22 May.

[10] On 22 May I made the further unwelcome discovery that counsel for the plaintiff, Mr Wilson, was in hospital and undergoing a surgical procedure of a very serious nature. I made further directions for the defendant’s submissions on quantum to be filed and served in 28 days and stood the matter over for argument to 23 July. This would not have been necessary if the plaintiffs had kept to the timetable, and if the parties had not come to an agreement to deal with liability separately. As trial judge, I must be mindful of the dictates of s 56 Civil Procedure Act 2005 (NSW). However, I must also be flexible and not permit the dictates of case management take precedence over the issues of the case.

[11] I have now received the submissions of all the parties and heard oral argument on 23 July 2009. I granted leave to the defendant to address me further on quantum issues and in reply by 24 July 2009.

[12] While these delays are regrettable, it would be inappropriate of me to apportion blame to any individual or one litigant over the other. I do not record them for the purpose of apportioning blame, but simply to explain the delay in hearing the litigation. While courts regard delay with concern, courts must be flexible as well as fair. Unavailability of witnesses, serious illness and other unexpected developments can happen in the best prepared of court proceedings. This case has simply been particularly unfortunate.

[13] I have indicated to the parties that because of the drawn out nature of these proceedings, I will be particularly cautious about what is sometimes referred to as “demeanour” evidence.

[14] I also record this procedural history to explain why I have handed down my decision as quickly as possible rather than revise and refine the language and presentation. To do so would be to add further delay to these proceedings, as this court does not have administrative and support facilities, and writing and typing judgments must be carried out by the judge outside court hours. The parties, and for that matter even the witnesses, need this matter to reach resolution without further delay, even if the result is a degree of informality in presentation and language.

The Plaintiff

[15] Mr Zilio, who was born on 25 October 1973, is now 35 years of age. His parents separated when he was about five or six and he continued to live with his mother but he began to get into trouble at an early age and had little education. He cannot write a letter and has trouble reading a newspaper (T-37). Mr Anthony (Exhibit A – 18 October 2006) assessed his full scale IQ at 65, with a particular deficit for word knowledge and a memory functioning below average, but the degree to which this was a mild intellectual handicap as asserted by Mr Anthony and the degree to which this contributed to by the plaintiff’s long history of drug difficulties and other social problems is unclear.

[16] What is clear is that as a result of the plaintiff’s limited intellectual abilities and a dependence upon drugs and heroin (while he has been successfully on the methadone program for some years) and the absence of any work history apart from occasional gyprock labouring of a menial kind, his life prior to the accident consisted of living on a disability pension and taking drugs. He did not file tax returns, simply working from time to time to supplement the disability support pension he was receiving. He claimed he had not taken heroin at all since he had been on the methadone program (T-40) and had used cannabis only very occasionally and also asserted he had only taken a Valium every so often for “just a bit of stress, no sleep” (T-41) but the medical history tends to speak to the contrary.

[17] The plaintiff has never held a motor vehicle licence. He had become interested in motorcycles when he was a young boy and used to go riding with his brother on the weekend doing cross-country motorcycle riding. He started driving a car from the age of 17 but almost immediately had “troubles with licences” (T-43) and thereafter rode a motorcycle without a licence.

[18] The motorcycle the plaintiff was riding on the day of the accident was a 900 cc Honda motorcycle which was unregistered and uninsured. He had in fact built the bike himself. He bought one which had been “smashed” (T-43) and “ended up building it” (T-43). He said he did not have to do any braking work on the motorcycle as the brakes were “all good on them and all that” (T-43) although he had to change the brake pads. He said he rode the bike only “very occasionally” although given his fondness for motorcycles and his need to get around a part of Sydney that has very little public transport, this seems unlikely.

[19] Prior to the accident the plaintiff had been in a relationship with a Susan Agius who lived at 52 X Street. Prior to the accident, he said that he had known her for about 2½ years (T-44). She was a fellow patient at the methadone clinic. The plaintiff claimed to have seen her there only “occasionally” and said the relationship had ended a long time before the accident.

The plaintiff’s account of the accident

[20] On the day in question, the plaintiff woke up and went to get his medication in the usual way from the methadone clinic. The methadone clinic was approximately 5 minutes away. He recalled that he went there during the morning and having taken his medication he returned to his father’s boarding house and then went to visit his brother Marco, who lived in Bedford Road off Sunnyholt Road. He drove his motorcycle to all of these places. He was there for about three or four hours but said he did not take any drugs while he was at either place.

[21] Although the plaintiff said he walked from his father’s place to his brother’s place (T-52) he rode from his brother’s place to Ms Agius’ place (T-52) and it was never explained to me how he managed to obtain his motorcycle to ride to Ms Agius’ place without returning to his father’s place. The most likely explanation is that he was riding his motorcycle but, by reason of being unlicensed was reluctant to say so.

[22] He left his brother’s premises at about 2.00 pm to 2.30 pm although he corrected this to 2.00 pm (T-510) and went to Susan Agius’ home at 52 X Street Blacktown. He said that he went to her front door and described what happened as follows:

“Q. What happened when you went to her front door?
A. I ended up handing her some money and then I left because I wasn’t getting on with her.”

[23] He was at Ms Agius’ home for less than four or five minutes; he was “there and gone” (T-54).

[24] He was asked:

“Q. Could you tell us in your own words what happened from that point.
A. I left her house, I was coming over the crest of the hill. As I got over the crest of the hill, I seen a car on the other side of the road blocking the road off. I've come to her, I went to put the brakes on, leaned it, went to go over to the side and just seen a parked car there and just collided with it, and just ended up down the road.” (T-55)

[25] He was then asked:

“Q. Are you able to say how long it seemed from when you first saw this car until you hit the parked car?
A. It's all come to a quick thing, like.” (T-56)

[26] The plaintiff said he was not in any particular hurry to return to his father’s place, he was simply returning there because that was where he lived (T-58).

[27] The plaintiff particularly noted that the motorcycle he was riding made a loud noise because it had a hole in the exhaust and sounded “very loud” and “like a Harley” (T-58). He said that this was a sound similar to “a police or an ambulance siren” (T-59). On the subject of his speed he said, “I wasn’t really speeding. I would have been doing under 60, because I was in third gear, and from the – from 52 X Street to 13 that’s not much of a speed that you can do unless you want to give it [sic] to it.” (T-59-60). He went on to explain “I was in third gear, so I couldn't have been going quicker because it would have been just revving the bike out, and on a short distance from 52 X Street to 13, it's a very short distance. So by then, as I've approached to [sic] the hill, that's when I just seen the car on the other side. I just tried to avoid it.” (T-60). To try and take control of the bike he “pulled the brake on, and I did knock it down a gear, and that's when I just went to lean it to go around her and seen a parked car, and just end up colliding with that” (T-60).

[28] The plaintiff in cross-examination made a number of damaging admissions.

[29] I should commence my analysis of this evidence by noting that I have given appropriate weight to the submission made on behalf of the plaintiff that in many respects, Mr Zilio’s evidence needs to be viewed with caution. This is in part because of his low intellect (plaintiff’s written submissions, paragraph 2), in part because of his physical difficulties in enduring cross-examination in the witness box (submissions, p. 6) and finally, in my view, his difficulties in dealing with any complex or stressful situation as a result of the legacy of many years of chronic drug abuse. In particular, I accept that he had difficulty understanding a number of simple English words (such as “stationary”) and a problem answering questions because of the stressful and relatively unfamiliar circumstances of courtrooms.

[30] Having noted these matters, I will now go on to note the concessions Mr Zilio made in his evidence.

[31] Mr Zilio’s evidence in cross-examination commenced with the assertion that he had seen vehicles reverse out of a driveway in front of him before but “not in that extent where it’s blocked me off the road” (T-88). However even in examination-in-chief when he said he first saw the vehicle in front of him he said “It just come as a shock. Like no-one was in front of me. Like, I just - I just jammed the brakes on and just hoped to avoid it… I just freaked out and just hoped for the best, yes.” (T-83)

[32] How different is this from what he said in cross-examination? At T-88-90, Mr Zilio says:

“A. I did come over the crest of the hill and seen the car and that’s when I just come to a bit of a shock because –

…

“Q. And you mentioned yesterday, at page 56, line 18, "That the vehicle was across the road. It was sitting there." Do you remember saying that?
A. Yes.

Q. Did you mean by that, that when you first saw the vehicle, the vehicle was sitting stationary on the roadway?
A. Yes, it was sitting.

Q. When you say, "it was across the road," do you mean to say that it was at some sort of angle to the road or was it facing down in your lane?
A. I couldn't tell you it was on an angle but it was across the road on an angle where it was blocking my side of the road and a bit of the other side too.

Q. Do you mean to say that the vehicle was stationary in your lane, effectively, if there is a lane? There aren't any marked lanes on this roadway, are there?
A. Yeah.

Q. If we just adopted an imaginary lane heading north and one heading south, do you mean to say the vehicle was stationary in your lane?
A. All I say it was in my lane, yes. It was in my lane.
Q. And, as you said to her Honour yesterday, "it was sitting there." Is that right?
A. That's what I meant. It was in my lane. At first it just sat there - when I come over the hill I seen [sic] it. That's what I mean.” (T-88-90 ).

[33] He went on to repeat that he said “[w]hen I come over the hill, I seen it sitting there.” I asked him whether he meant it was sitting in the driveway or sitting in the road. He said “[n]o, it was across the road because I come over the hill, it was just like that” and he held up his hands in a T shape to show that he was coming down and the vehicle was sitting in his path. I asked “[s]o where is he saying the car was just sitting?” And the witness replied “[w]hen I come over the hill, it was sort of like a T or like that and I was coming over like that. So, more or less, the road is like that and the car was sitting like that.” I then asked:

“Q. So the car was stationary in the middle of the road?
A. Yes.
Q. It wasn't moving in the middle of the road?
A. No. I didn't see it moving. I just seen it as I was coming over. It was just the same it was when I went to move it, like avoid it.” (T-90).

[34] The plaintiff in written submissions asserts (at paragraph 16) that in the course of his evidence Mr Zilio “experienced some difficulty in comprehending what was meant by the word ‘stationary’ when questions were asked of him as to whether the vehicle was blocking his path was moving”. It was submitted given his IQ, literacy and word difficulties and the circumstances in which he was asked this question this is unsurprising.

[35] He did ask (at T-92) “what’s ‘stationary’, by the way?” Mr Wilson told him “[s]tationary means not moving” to which the plaintiff replied “Yeah, that's right, okay.” Mr Wilson then asked:

“Q. So, from the time you first saw it to the time you collided with the vehicle on the other side of the road, was that vehicle not moving?
A. That’s right.” (T-92)

[36] However, Mr Zilio not only said the car was not moving in examination-in-chief but repeated it in cross-examination. His answers on both occasions were identical. He also gave the same answers to me when I asked him once again. Mr Zilio’s evidence on this issue really is quite definite. When he saw the vehicle, it was not moving. Whether that is accurate or not is another issue, but he clearly understood what “stationary” meant, as his answers above demonstrate, and he clearly intended to convey that impression.

[37] I shall deal further below with a different account the plaintiff appears to have given to Ms Agius in hospital (T-659 lines 28-40 and 45ff) and the account of the observations of Mr Hein, a neighbour who was in his garden at the time of the accident.

[38] The plaintiff also admitted that he had seen the defendant’s vehicle from the moment he came over the crest. He drew a diagram (at T-96). Although the plaintiff was not good with distances, he was able to agree that from the top of the hill down to his friend Ms Agius’ place was about four Olympic swimming pools in length (T-97) and that he would have been able to see the defendant’s vehicle stationary in front of him “a bit under two [swimming pool lengths away]” (T-97-98). This means he had a clear view of the vehicle from a little bit under 100 metres away on his own evidence.

[39] The plaintiff was also asked about the speed of his motorcycle and reminded of his evidence that he said he thought he was going between 50 and 60 kilometres per hour. He repeated he was sure that he had been travelling at under 60 kilometres per hour (T-90). It was put to him that he told the ambulance officers “I was driving in excess of 100 kilometres an hour” (T-101) which he denied. He said there was “no way” that he was travelling at such speed (T-101). He said (T-110) “I was doing over 60 and I know I was”. He also denied that he also told Dr Gupta that he had been riding at 100 kilometres an hour (T-113). As well as a social worker at the hospital (T-115).

[40] The plaintiff also made some admissions about his state of mind. He was asked (T-123):

“Q. Was there any urgency about visiting Ms Agius that required you to engage in the illegal activity of driving whilst unlicensed?
A. Because I had a lot of drama.

Q. What was that drama?
A. Just this drama, she wanted the money.

Q. $40?
A. Yes.
Q. What, so it was worth your breaking the law, was it, over $40 to deliver that sum of money to Ms Agius?
A. No, it was just a scene she was putting at me brother's house where she shouldn't have been over at me brother's house.”

[41] It would appear that Ms Agius came to the plaintiff’s brother’s house prior to his accident asking for the money. I note that the motorcycle was parked there (T-123) which confirms that the plaintiff must have ridden there from his father’s place. The plaintiff said that Ms Agius “made a big scene which the whole street heard” (T-125) and it was for this reason that he had to go to his father’s place to borrow the money to pay her.

[42] All of this paints a picture of a plaintiff in a very bad temper who has visited Ms Agius for the purpose of giving her the money and immediately leaving. This is not an issue upon which the plaintiff’s problems in understanding and expressing himself should have impinged. There is thus evidence that the plaintiff was in an upset state, angry and otherwise in a bad temper in the moments immediately preceding the accident, which is relevant to the degree of attention he gave in terms of keeping a proper lookout for other vehicles on the road.

[43] The plaintiff was also cross-examined about credit issues, such as his criminal record and his drug use. I shall deal with this in more detail later in the judgment. While these were substantial and serious matters, I have been careful not to let them distract me from the real issue in this case, which is the question of whether the plaintiff was injured as a result of the defendant’s negligence.

[44] Before considering the evidence of the witnesses and the experts, it is necessary for me to analyse the above evidence from the plaintiff’s point of view so as to determine what are the factual issues which are in dispute.

Facts that are not in dispute

[45] I shall start by setting out the factual issues which by reason of the evidence of the witnesses and/or concessions by the expert witnesses are not in dispute:

1. Date, place and time of accident

[46] The accident occurred on 19 July 2003 at about 3.00 pm in X Street, Blacktown, a suburban street with low density residential premises, a width of 8.9 metres and a speed limit of 50 kilometres.

2. Distance travelled by the plaintiff, when he first saw the defendant’s car, and the fact that he was over the speed limit

[47] The distance travelled by the plaintiff from Ms Agius’ home to the point of impact was approximately 300 metres, consisting of 180 metres to the crest of the hill and 120 metres from the crest of the hill to the point of impact. The plaintiff saw the defendant’s vehicle at the crest of the hill, approximately 120 metres south of the point of impact. Notwithstanding his clear evidence that the vehicle was stationary, this is contested on behalf of the plaintiff and other evidence has been led that the vehicle was still moving at the time.

[48] There is a slight crest to the street which I have observed by attending the scene of the accident on a view. There is expert evidence as to whether or not that crest would muffle any sound and block the plaintiff’s view but on any version of the facts the plaintiff had an unrestricted view of the defendant’s vehicle from the crest of the hill to the point of impact which was approximately 120 metres.

3. The vehicles involved

[49] The plaintiff was driving an unregistered and uninsured 900 cc Honda which he had put together and built up himself. There is no evidence that this vehicle was faulty, although the plaintiff said that there was a hole in the muffler and that the sound of the vehicle would have been very loud, comparable to a Harley motorcycle.

[50] The plaintiff was at all relevant times travelling at a speed in excess of the sign posted speed limit of 50 kilometres per hour. How much over the speed limit he was is an issue that is in dispute. What is not in dispute is that he saw the defendant’s vehicle approximately 120 metres away.

[51] The defendant’s were driving a Ssangyong Musso (“the four-wheel drive”) which was 1.9 metres wide. The defendant, who had lived at 13 X Street all of her life, had backed out of the premises having first looked to the right and left and was in the roadway at an angle at the time of the accident. Whether the vehicle was moving or not is contested by the plaintiff.

[52] The parked car which was struck by the plaintiff’s vehicle was a 1994 Holden Commodore sedan. Mrs York, who lived next door to the defendant, had left this car parked and unattended in the street. There is no suggestion that this vehicle was parked other than a completely safe manner. There are, however, disputed facts about whether the impact of the crash moved the vehicle sideways.

4. The plaintiff’s course along the road prior to the accident, and where he and the motorcycle ended up

[53] The plaintiff having observed the defendant’s vehicle approximately 120 metres away (whether it was still reversing or stationary as the case may be) put on its brakes and sought to complete an overtaking manoeuvre. The plaintiff crossed onto the incorrect side of the roadway and collided with the 1994 Holden Commodore sedan which was parked outside number 9 X Street.

[54] As I have indicated, there was some late evidence, which is the subject of challenge, that the parked car was moved sideways by the force of the collision. Whether this is the case or not, the vehicle was damaged by the collision.

[55] The plaintiff was thrown from the motorcycle and came to rest on the grass verge of the western side of X Street outside the front of number 14 X Street and the motorcycle came to rest against the gutter on the western side of X Street adjacent to a small tree outside number 14 X Street.

[56] There was no physical contact at any time between the defendant’s four-wheel drive, the plaintiff and his motorcycle.

[57] I shall now draw together the evidence given by the plaintiff, Mr Hein and the plaintiff’s expert to endeavour to see the facts in dispute from the plaintiff’s point of view.

Facts in Dispute

[58] The following facts are in dispute:

(a) The position of the four-wheel drive on the road and whether it was stationary or still moving. As will be seen from an analysis of the evidence below, the defendant and Mrs Lane said it was parallel to the kerb. The plaintiff said it was at a right angle. There is also conflicting evidence about whether or not the vehicle was stationary.

(b) Whether the defendant should have been able to hear the plaintiff’s motorcycle before she reversed, and her speed of reversal and time spent stationary (if any).

(c) The speed of the motorcycle. The estimates given during the trial range from in excess of 50 kilometres (later conceded to be in excess of 60 kilometres) and 100 kilometres (the upper end of the defendant’s estimate).

(d) Whether the plaintiff was under the influence of drugs of any kind, at the time of accident and his general state of mind and alertness.
(e) The adequacy of the police investigation of the accident.

[59] I shall next consider the evidence of the witnesses to the accident.

The evidence of the witnesses to the accident

[60] In his notebook, Constable Beverley noted the names of four persons who claimed to be witnesses: Mr Hein, Mrs Lane, Mrs Gadaleta and Ms Agius.

[61] The accounts given by the witnesses have been exhaustively analysed by the experts and by counsel in their submissions. Counsel for the plaintiff urges me to view with caution the evidence of the parties’ experts (who achieved in these proceedings a degree of agreement on a number of issues) and asked me to prefer the evidence of the witnesses, and especially Mr Hein.

[62] The trouble with witness accounts is that witnesses to motor vehicle accidents are invariably ordinary people who, without any warning, see distressing and sometimes frightening accidents and injuries, sometimes involving people they know well. Mr Schnerring, the plaintiff’s expert witness, comments on this at paragraph 8.5 of his report (Exhibit A p. 21):

“…[Witness] statements are about their perception of events filtered through their expectations and their personal beliefs about what had actually occurred. Furthermore, witnesses are almost certainly not expecting unusual or rare events, such as a crash, to unfold before them, so they are probably only partly attentive to the events leading to the crash, or to the crash itself. As well, crashes occur rapidly and witnesses are not in a position to actually see all of what happened. This is evidenced by the need for high speed cameras to record what actually does happen in crash testing. If it were otherwise, such high speed cameras would not be required for a scientific analysis of what actually happens in a crash.”

[63] I shall deal with each of the persons who were asserted to be, or claimed to be witnesses.

Mrs Gadaleta

[64] Mrs Gadaleta, who lived at 48 X Street, made statements to the police and gave evidence in the Local Court about the circumstances of the accident. This material was given to the experts and used in their report.

[65] However, neither the plaintiff nor the defendant wished to call Mrs Gadaleta. Substantial portions of Mr Schnerring’s first report (including parts at pp. 10-11, 14, 16, 22, 24 and 27 of Exhibit A) were not read and have been crossed through. Counsel for the plaintiff forgot to ask me to cross through other parts (for example Mr Schnerring’s reply to the comments about Mrs Gadaleta’s sketch at p 61) but I have assumed they are similarly not read, as are the portions of Mr Keramidas’ report dealing with these issues.

[66] At T-365 – 367 the problems concerning Mrs Gadaleta’s evidence (her name is misspelled as Gatalata) are referred to. The plaintiff did not wish to call her, and did not rely upon those passages of the expert report that referred to her. The defendant did not rely upon her. The problem seems to have been that there were inconsistencies in her evidence that made it unreliable in the eyes of both parties.

[67] One of the problems with this is that Mrs Gadaleta’s information to the police included her opinion about speed. This in turn appears to have gone into the COPS report, which refers to “witnesses” giving information about the role of speed in the crash. Mrs Gadaleta is, for reasons I have explained in more detail below, almost certainly one of these eyewitnesses who referred to the speed of the plaintiff’s motorcycle.

Ms Agius

[68] Ms Agius lived at number 44 X Street and was the person who the plaintiff had been visiting immediately prior to his accident. She was called by the defendant to give evidence as to the plaintiff’s state of mind and drug use on the day.

[69] As set out in more detail below, Ms Agius was a less than impressive witness, with considerable animus towards the plaintiff. She did, however, give some evidence that the plaintiff sought to rely on, namely that she heard the roar of the plaintiff’s bike and the crash:

[70] However, this is contrary to the evidence of Mr Hein, who was called to give evidence about his observations of the crash. Mr Hein’s statement to the investigator (Exhibit C) and to the police (Exhibit D) both refer to Mr Hein being asked by the plaintiff to contact “his girlfriend who lives at unit 2 - 44 X Street” (Exhibit C) and Mr Hein added in his police statement that while he was telling her, “it appeared that somebody was telling her over the phone”.

[71] The most likely explanation is that Ms Agius therefore knew about the accident because Mr Hein told her, not because she was able to hear the crash. This suggests she went to the scene of the accident some minutes after the event, and as a result of Mr Hein’s visit and/or the telephone call Ms Agius received.

[72] The plaintiff relied on Ms Agius’ ability to hear the crash as evidence that the defendant ought to have been able to hear the plaintiff’s motorcycle.

[73] However, I accept the evidence of Mr Hein that Ms Agius learned of the crash when someone telephoned her at the time Mr Hein visited her, or alternatively when Mr Hein told her about the accident.

[74] I find that Ms Agius did go to the crash scene a few minutes later, and according to Constable Beverley’s notes, she spoke to him.

[75] Ms Agius expressed opinions about the plaintiff’s speed. She told the court the plaintiff had “gunned it” and driven away from her place in a bad temper, so she is likely to be another person who expressed a lay opinion to the police about the plaintiff’s speed, which may also explain the COPS report entry.

[76] Ms Agius’ evidence about the events of the day in question is completely at odds with the facts, including the time of day of the accident. I have rejected her evidence on most issues, and I also propose to reject her evidence that she heard the plaintiff’s bike skid as she claims. Consequently I do not regard her as an eyewitness. This includes her assertions about the speed at which the plaintiff rode his motorcycle.

[77] This brings me to a consideration of the two persons who were called as “eyewitnesses” to the accident.

Mr Hein

[78] The plaintiff called Mr Hein and the defendant called Mrs Lane, the mother of the defendant, who was a passenger in the vehicle. The evidence of both has limitations. The use of the word “eyewitnesses” in the case of Mr Hein and Mrs. Lane is something of an overstatement in the case of Mrs Lane, as all she effectively knew about the accident was that she heard a whooshing sound. Mr Hein saw more, but was struggling to tell the story many years after the event.

[79] Mr Hein is a commercial pilot. He lives at 14 X Street, Blacktown. This is across the road from the defendant’s house. On the day in question he was in his front yard cleaning his car.

[80] Mr Hein gave evidence in these proceedings five years after the accident. He was however an honest witness, who did his best to help the Court, not only in these proceedings but in the Local Court proceedings, by stating his evidence as clearly as he could. His evidence is central to the case and is necessary to set it out in detail.

[81] Mr Hein made a statement to the investigator (Exhibit C) as set out in Schedule A to this judgment.

[82] Mr Hein made a statement to the police (Exhibit D) as set out in Schedule B to this judgment.

[83] Mr Hein gave evidence in the Local Court as follows:

“…

Q. No let’s concentrate on the second time you saw it just before the accident happened, at the time the accident happened. So where was the bike during that second instance where you saw and heard it, where was it when you first saw it on the second occasion? How far from the crest of the hill, or was on the crest of the hill?
A. He was coming up there, the first time I saw it that’s when he tried to avoid the car.

Q. You’ve heard it, you’ve looked up and then you’ve seen him avoiding the car?
A. Yeah correct.

Q. So in essence what you’re saying is, how far from where you were standing, how far back to the car that he was avoiding?
A. Very close.

Q. Very close –
A. Close to the car, he was very close to the car, avoiding it yeah. Because the car has already backed out and it was stationary, so he was coming towards the car and that’s when I first saw it – avoid the car.

Q. When he passed that motor vehicle was the motor vehicle moving or still stationary?
A. Stationary.

…

Q. And when you first noticed the cycle on this day that’s when it was travelling in a southerly direction it was the noise that attracted your attention?
A. Yes that’s right.

Q. Not the way in which the cycle was being ridden, that is speed or manner of riding the cycle?
A. That’s right that’s why I couldn’t tell the exact speed.

Q. And the second time you saw it as it came over the hill towards where this reversing car was again it was the noise that first attracted your attention?
A. Yes.

Q. And then you saw apparently a motorcycle trying to avoid what was an obstacle in front of it on the road? Namely this car that was in the process of reversing out of the driveway?
A. This car as already reversed and it was already stationary.

Q. This was all happening in a very short space of time though wasn’t it?
A. That’s correct.

Q. The car didn’t reverse and just sit there did it?
A. It was already reversed and about to –

Q. About to move off?
A. That’s right.

Q. It had just completed the arc of turning across the road and straightening up?
A. Completed yeah.
Q. All of these events took place in front of you in a very short space of time?
A. That’s right.”

[84] Mr Hein’s evidence in cross-examination was as follows:

“Q. Mr Hein, you said that, as you walked towards the front of your driveway from the carport, you could not recall what you saw with respect to your neighbour's car. Is that correct?
A. Correct.

Q. As you walked from the front of your carport towards the front of your driveway, did you make any observations with respect to the noise that attracted your attention?
A. I heard the noise, noise of a bike, and it wasn't - what I don't recall is I wasn't really looking at the car. Like, when I got to the - I assumed the car was reversing at the time, but I only noticed when I got to the front, when I got to the driveway, and then only I realised the car is stationary by then, which I assume it was reversing. So by the time I got there, the car is stationary and then the bike was coming towards the car. So that's what I recall, and I assume the car was, you know, reversing when I first got out of my car, but I wasn't really paying attention that the car was moving out of her driveway.

Q. When you say that the car was stationary and you saw the bike, where was the bike in relation to the car?
A. It was coming towards the car from behind.

Q. Are you able to say how far from the car the bike was when you first saw it?
A. I assume about 10 metres behind.

Q. When you first saw the bike in this position, about 10 metres from the car, what if anything did you see and/or the bicycle operator do?
A. Try and avoid the car from hitting it.

Q. When you say "try and avoid", what did you see that led you to that belief?
A. He swerve off to the right.

Q. When he had swerved to the right, did you see any change in how the bike was in relation to the roadway?
A. I don't understand your question.

Q. When you first saw the bike, was it upright or at an angle?
A. Angle.

Q. What was the angle it was at?
A. It was about 30 degrees.

Q. 30 degrees which way?
A. To the right.

Q. So that's leaning towards the other side of the road to that which you were on?
A. Correct.
Q. Then what, if anything, did you see about the alignment of the bike?
A. Then tried to swerve off the other side again because of the parked car on the other side.” (T-283 line 30 – T-284 line 31)

[85] Mr Hein’s version of events in these proceedings was:

“A. I heard the noise, noise of a bike, and it wasn't - what I don't recall is I wasn't really looking at the car. Like, when I got to the - I assumed the car was reversing at the time, but I only noticed when I got to the front, when I got to the driveway, and then only I realised the car is stationary by then, which I assume it was reversing. So by the time I got there, the car is stationary and then the bike was coming towards the car. So that's what I recall, and I assume the car was, you know, reversing when I first got out of my car, but I wasn't really paying attention that the car was moving out of her driveway.

Q. When you say that the car was stationary and you saw the bike, where was the bike in relation to the car?
A. It was coming towards the car from behind.

Q. Are you able to say how far from the car the bike was when you first saw it?
A. I assume about 10 metres behind.

Q. When you first saw the bike in this position, about 10 metres from the car, what if anything did you see and/or the bicycle operator do?
A. Try and avoid the car from hitting it.

Q. When you say "try and avoid", what did you see that led you to that belief?
A. He swerve [sic] off to the right.

Q. When he had swerved to the right, did you see any change in how the bike was in relation to the roadway?
A. I don't understand your question.

Q. When you first saw the bike, was it upright or at an angle?
A. Angle.

Q. What was the angle it was at?
A. It was about 30 degrees.
Q. 30 degrees which way?
A. To the right.” (T-283-284)

[86] Mr Hein described how having seen the accident he drove up the road to the plaintiff’s “lady friend’s house” to inform her (T-285). He then returned to the scene of the accident and told the police officer what he had seen. He thought the police officer had taken a statement that day; in fact he signed a statement on 28 October 2004, but he told the investigator on 2 October (three weeks beforehand) that the police had merely “jotted down notes”. It does appear, however, that the police officer did interview him on the day.

[87] At T-287 Mr Hein repeated that the defendant’s motor vehicle was stationary, but said he could not recall any more.

[88] As a result of this evidence an application was made to cross-examine the witness pursuant to s 38 Evidence Act 1995 (NSW) although it was not proceeded with. However, an application to refresh memory under s 32 was made and granted. On the application, Mr Wilson tendered the transcript of evidence given by Mr Hein on 8 December 2004 including the cross-examination of Mr Hein by Mr Campbell. This meant that I had the benefit of reading cross-examination of Mr Hein by Mr Campbell at the Local Court proceedings. In addition, that cross-examination occurred at a time when Mr Hein had the events in his memory closer to the time of the incident in question.

[89] The first issue is whether Mr Hein in fact heard the plaintiff’s bike before he saw the defendant start to reverse her car out of the driveway or whether, as he said in court in these proceedings, he “wasn’t really looking at the car” and he assumed the car was reversing.

[90] The problem with the investigator’s statement prepared for the witness is that while it states in paragraph 8 that as he heard the motorcycle travelling towards him, the defendant began to reverse her four-wheel drive out of the driveway and onto X Street and stopping in the north bound land with the front of her vehicle, he went on to say in paragraph 11 that he could not recall where he first saw the motorcycle in relation to when the four-wheel drive reversed out of the driveway. He could only remember seeing the motorcycle rider attempting to avoid a collision with the four-wheel drive.

[91] Reading paragraph 8 of the Statement of 22 October 2003 (which is Exhibit 12) as enlarged by his Local Court evidence (Exhibit 11) it would appear that even in this statement his assertion that Ms Lane began to reverse her four-wheel drive out of the driveway must end in her “stopping in the north bound lane with the front of her vehicle”. In other words, even in his police statement, the vehicle was already stationary prior to impact and the likely result is that he first saw it when it was completing the reverse turn or when it was stationary. Common sense would dictate that if Mr Hein was looking 100 metres down the road to see what kind of bike this was, he would not have been looking at the defendant reversing out of her driveway on the opposite side of the street.

[92] Mr Hein had his statement read to him at T-300-301. He also had the benefit of rereading the transcript of the Local Court proceedings on 8 December 2004 (T-305-306).

[93] However, Mr Hein (at T-310) refused to agree to the claim that the vehicle was stationary and remained stationary at all times that it was under his consideration. He agreed however that his recollection of events when he gave evidence before the Magistrate in December 2004 and also when he made his statement would clearly have been better (T-311).

[94] The difficulty with statements, especially where these have been prepared by a third person, is that they take on a flat two-dimensional approach to the evidence. Evidence in cross-examination from other proceedings, where the witness has the chance to respond in his own words rather than adopt the language chosen for him by another, and to respond specific questions, paints a much clearer picture. The same was the case with Mr Hein’s evidence in both these proceedings and in the Local Court. While his recollection had dimmed, he was able, by using these contemporaneous reports, to repeat his best recollection of the evidence.

[95] What Mr Hein agreed he had done was to embark upon a process of reasoning by assumption in that having seen the vehicle in the middle of the road he has made an assumption. He explained at T-313:

“A. As I walked out, the car has been - in my - it was backing out, but then when I actually noticed - because I was more paying attention on the bike than I showed to the car, but when I saw that when I first saw the car, that's when I actually noticed and pay attention of the whole scene. Then I saw the whole scene, which is the car was stationary and that the bike was coming up towards the car, so I assume as I was backing out - as I was walking towards the driveway –

Q. Can I just interrupt you.
A. Yes.

Q. What you're embarking upon now is a process of reasoning by assumption, aren't you?
A. Yes.

Q. You don't have any recollection of this fact. I think you've already told her Honour, of course, that you made an assumption the vehicle must have backed out, didn't you?
A. That's what I - made the statement previously, when Mr Campbell asked me.

Q. Yes, but the first time you noticed the vehicle was when it was stationary on the roadway. Isn't that the case?
A. Yes.
Q. The assumption you referred to is made because of (a) where the car was on the road and (b) the fact that you knew it was your neighbour's car.
A. Yes.” (T-313 lines 26-57) (italics added).

[96] A comparison with what Mr Hein said in the Local Court shows that he was giving the same evidence on that occasion. He said (at T-24 of the Local Court proceedings, Exhibit 11):

“A. Because the case has already back out and it was stationary so he was coming towards the car and that is when I first saw it – avoid the car.
Q. When he passed that motor vehicle was the motor vehicle moving or still stationary?
A. Stationary”

[97] In cross-examination by Mr Campbell in the Local Court, it was put to him that the car was in the process of reversing out of the driveway and Mr Hein replied (T-26 of Local Court proceedings):

“A. The car was already reversed and it was already stationary.”

[98] He was asked:

“Q. The car did not reverse and just sit there did it?”

[99] To which he replied:

“It was already reversed and about to –

Q. About to move off?
A. That’s right.
Q. It had just completed the arc of turning across the road and straightened up?
A. Completed, yeah” (T-26 of Local Court proceedings)

[100] The plaintiff relies upon extracts from the plaintiff’s statement to police and in particular paragraphs 5 to 11 of his statement of 2 October 2003 and paragraph 4 of his statement of 8 October 2004.

[101] Mr Hein in fact gave an explanation of this apparent inconsistency at T-316. He thought he was saying “the same thing”. He said that it was “a specific time that who asked me, what they asked me” which, given the fact that I suspect that English was not Mr Hein’s native language, I interpret as being his attempt to explain that he was answering questions for the purpose of preparing this statement.

[102] The defendant refers in written submissions (at paragraph 2(u), 4.7) to Mr Hein saying that the four-wheel drive had been stationary for at least four seconds. The plaintiff in written submissions does not deal with this evidence. What the plaintiff urges upon me is that I should accept what is set out in these written statements. The plaintiff’s submissions fail to refer to any of the evidence given by Mr Hein on oath in either the Local Court or in these proceedings.

[103] In conclusion, in addition to the plaintiff having told me on oath at the four-wheel drive was stationary and not moving (T-56, 89, 90 and 92), Mr Hein has also stated in his evidence, both here and in the Local Court, that the defendant’s vehicle was stationary (T-280. 283, 308, 310, 313, 316, 332, 333, 336)..

[104] The most important issue on which Mr Hein gave evidence was, however, his claim that he was able to hear the bike before the defendant’s car began to back out of the driveway.

[105] The same passages of transcript which set out when and where Mr Hein observed the defendant’s vehicle are relevant to this question. Did Mr Hein, who was looking towards the crest to see the motorcycle coming, see the car reversing on the opposite side of the road before or after the bike became visible at the crest?

[106] Mr Hein said in his Local Court evidence said “the first time I saw [the bike], that’s when he tried to avoid the car” and agreed with a statement that the bike wasn’t in his view “until the very last moment” which he put at “four or five seconds” (Exhibit 11, p. 25). He agreed with the statement “You’ve heard it, you’ve looked up and then you’ve seen him avoiding the car” (p. 24), which Mr Hein described in his next answer as “stationary” at the time.

[107] This is the most likely explanation of what Mr Hein saw. He looked up because he heard the bike, but he immediately saw the accident with the defendant’s stationary vehicle. He said in court in these proceedings that when he saw the bike it was about 10 metres away (T-284) and when he said in cross-examination that this was when he noticed “the whole scene” in that prior to this “I wasn’t paying attention of [sic] what the car was doing” (T-310). He repeats this at T-315 in very similar words. That is why he agreed at T-315 that the first time he observed the vehicle it was stationary.

[108] Evidence from a witness in his own words, and on oath, in court proceedings, is likely to be of greater assistance than a statement in an investigator’s words which is signed by him, even where that testimony is later in time. I am satisfied, from my analysis of the evidence of Mr Hein, that he looked up from cleaning his car, saw the motorcycle coming towards the defendant’s already stationary vehicle and saw the accident.

[109] Mr Hein’s evidence is silent on a surprising factor, namely speed. While other lay witnesses with considerably less knowledge were keen to tell the police the plaintiff’s speed, Mr Hein, a trainee pilot with an interest in motorcycles sufficient to be looking out for the plaintiff’s motorcycle, said to the investigator the police had not asked him (paragraph 19) and did not volunteer an estimated speed to the investigator. In fact his evidence on this issue in the Local Court was:

“Q. For how long have you been a driver?
A. About eight years.

…

Q. What other sorts of vehicles have you driven, have you driven anything else or just cars?
A. Actually, I drive a car, not a bike, just a car and I’m a cadet pilot, so I fly a plane as well.
Q. Do you feel comfortable in assessing the speed of the motorcycle when you saw it or not?
A. No.” (Exhibit 11, p. 25)

[110] Mr Hein’s evidence in these proceedings was “I cannot judge the speed” from the sound of the motorcycle (T-341) and, when asked for the speed when he saw it, said “I can’t recall” (T-341).

[111] This inability to estimate the speed of the plaintiff’s motorcycle suggests Mr Hein had a view of a motorcycle only immediately prior to the impact. He is too honest a witness to hold back on such an issue if he was able to give an opinion.

[112] Mr Hein’s evidence in these proceedings was another gloss on three prior occasions. Each of the plaintiff and defendant ask me to accept some part of his evidence and to reject some other part; for example, on the issue of whether the vehicle was stationary, the first and third of these were relied on by the defendant and the second by the plaintiff (T-296).

[113] I find that although Mr Hein heard the sound of the bike first, and looked up from what he was doing as a result, by the time he saw the bike it was attempting to pass the defendant’s stationary vehicle. This is consistent with expert evidence that the motorcycle sound would, because of the road crest, only have been audible when the motorcycle was between 130 – 150 metres away. The crest at which the rider could be seen was only 120 metres away.

[114] This brings me to a consideration of the expert evidence as to the mechanics of the evidence. I shall first deal with the plaintiff’s submission that the expert evidence should be treated with caution or disregarded entirely because the inadequacy of the police investigation means that the information relied upon by the experts is fatally flawed.

A preliminary matter – the inadequacy of the police investigation

[115] The plaintiff in written and oral submissions mounted a sustained attack on the inadequacy of the police investigation, asserting it made the reports of both experts valueless because crucial elements, such as the speed of the plaintiff’s motorcycle, could not be estimated.

[116] Both experts could, and did, estimate the speed of the plaintiff’s motorcycle. Both experts expressed a range of views about the circumstances in which the evidence could be analysed in order to determine the mechanics of the collision. Ultimately both experts agreed on many aspects of the dynamics of the case.

[117] The elements identified by the plaintiff’s counsel in submissions as inadequate included:

(a) failure to measure the skid mark: counsel for the plaintiff submitted that this meant it was impossible to determine the plaintiff’s speed.

In fact the police officer did pace out and measure the skid mark but not on the day of the accident (Keramidis, p. 8, Schnerring, p. 10). It was about 15 metres, with the mark commencing about 4 metres from the eastern kerb alignment at the south end, and finished about 1.5 metres from the eastern kerb at the northern end (Keramidis, p. 8).

(b) No recording or measurements of the physical evidence were made on the day of the accident (Schnerring, p. 10).

Senior Constable Beverley, who was called to give evidence, prepared a COPS statement which included references to interviews with witnesses, although in an unfortunately general way. He recorded the names of the witnesses as Mr Hein, Ms Agius, Mrs Lane and Mrs Gadaleta. This was correct. This is not a case where a witness was overlooked or not interviewed, albeit informally.

He later took a statement from the defendant and the witness Mrs Gadaleta, and put a sketch of the scene in his notebook.

(c) No recording was made of the spot where the plaintiff landed, or of other detritus on the road.

Mr Schnerring complains that the material provided for review was not precise with regard to the rest position of the motorcycle or rider, in that this information is contained in Mrs Gadaleta’s diagram (p. 12). Rider throw is important because the speed of the motorcycle at impact can be estimated if the distance the rider was thrown is known. Mrs Gadaleta’s diagram shows the plaintiff in a particular position.

The police did, however, take a series of photographs. These included a photograph showing the parked car had “sideways” (Schnerring at 15), something the defendant relied upon belatedly when calling its owner, Mrs York, whose photographs supported this.

The police investigation of the crash did not result in the collection of debris or detritus, but the expert witnesses did not refer to how this would have altered their findings or results.

(d) There was delay in interviewing Mr Hein and other witnesses.

Mrs Gadaleta and Mrs Lane were interviewed on 13 August 2003, a month after the accident (Keramidis, p. 4). Mr Hein was not interviewed until October, but he still had a clear recollection of events. The police officer did not take a statement from Ms Agius, which is an indication of what he thought of her as a witness, which I find entirely reasonable.
Constable Beverley gave evidence in these proceedings. He was an honest witness who gave evidence in a straightforward fashion. There is nothing arising from his evidence to suggest that his conduct at the accident site was such that vital evidence was lost or witnesses unnoticed.

[118] Notwithstanding the above, the two experts came to a degree of unanimity on a number of issues:

(a) The plaintiff would have had an adequate view of the defendant’s vehicle in front of him reversing out (Schnerring p. 63) and was in a position to stop before reaching it (Schnerring p. 25).

(b) The motorcycle was probably out of sight when the defendant started reversing

(c) It was common ground that the speed of the motorcycle was 80 kph (Schnerring, p. 65). There was dispute as to whether the motorcycle had slowed to this speed (Schnerring p. 64) and there was also a dispute about whether the plaintiff could have been travelling at closer to 100 kph following the discovery of Mrs York’s photographs after the experts prepared their initial reports.

(d) The first scenario proposed by Mr Schnerring of rider inattention explaining the skid mark was substantially agreed. However, Mr Schnerring was of the view that the reason for the skid mark was that the defendant’s vehicle did not go straight ahead as the plaintiff expected but veered right, surprising the plaintiff (Schnerring p. 63). This meant that Mr Schnerring did not accept the evidence of the defendant, Mrs Lane or Mr Hein that the defendant’s vehicle was not stationary. However, this was not because of deficiencies in the police investigation.
(e) It was common ground between the parties that the police photographs were helpful. In fact the police photographs corroborated Mrs York’s claim that her car had been pushed sideways, and this was of assistance.

[119] While there were deficiencies in the police investigation, such as the failure to check for debris on the road and to measure rider throw, this is not a case where essential steps were left out, or witnesses not identified and interviewed.

[120] This brings me to the giving of reasons for excluding the COPS report as probative on the issue of speed. The report has been admitted on a restricted basis only, namely as material relied upon by the experts.

[121] My reasons for doing so are as follows. The COPS report refers to the police speaking to “a number of witnesses” and that it appeared speed was a contributing factor as “witnesses believe” he was travelling at a speed well over the prevailing speed limit and “some witnesses” stated he was travelling at least 100 kph.”

[122] The witnesses that Constable Beverley interviewed included Mr Hein (who at all relevant times has been reluctant to express a view as to speed), Mrs Lane (who heard a “whoosh”), the defendant (who saw nothing), Mrs Gadaleta and Ms Agius. By a process of elimination of the named witnesses, I identify these last two persons as the “witnesses” who made this statement as Ms Agius said as much again in the witness box and I am aware, from having struck out by agreement the content of Ms Gadaleta’s statement, that she made a similar claim. It is possible he may also have heard the plaintiff say as much when he spoke to the ambulance officer.

[123] The parties both asked me to strike out Mrs Gadaleta’s evidence. Having done so, if she was the chief source of this information, as appears likely, this must be struck out as well.

[124] In addition, the references to “witnesses” and “some witnesses” is evidence of the kind that s 135 Evidence Act 1995 (NSW) was designed to circumvent. Unless the identity of those witnesses is known, and can be tested, such evidence is misleading and confusing.

The Evidence of the Defendant and her Mother

[125] Ms Lane was living at 13 X Street at the time of the plaintiff’s accident. She said (at T-736) that she had reversed her car out of the driveway until it was parallel on the other side of the road, where it was positioned half a meter from the gutter (T-737). She said that she reversed at a slow speed of about 5 kph although she later said that it could have been at 10 kph (T-737). She reversed in one complete uninterrupted movement. While she was looking down at the gear stick and getting ready to change into “drive”, there was “a rush come past and a loud screech and a crash, a bang” (T-738). She looked up and saw a bike in the gutter and further down the plaintiff was lying in the grass.

[126] The defendant said that she was sitting in the car for about 4 or 5 seconds although there was no hesitation in what she was doing (T-770). She had not commenced to change gears before hearing the screech sound. She was certain that she had not heard any sound from the motorcycle at any time before (T-745).

[127] The plaintiff submits (written submissions p. 49) that “no reliable assessment of how long it had been since concluding her reverse” can be made.

[128] The plaintiff sought to challenge the defendant’s claim that she was only half a meter from the gutter and submits that her explanation that she drove forward so as to clear a driveway she was obstructing is implausible. It is submitted that “it would not make sense” for her to move forward before rushing in to telephone an ambulance. It was submitted that she knew her vehicle was in fact obstructing the road and that this was the reason that she moved it.

[129] There is, surprisingly, no evidence from Mr Hein to this effect.

[130] The defendant accepted that if she had heard a sound before she started to reverse her car then she, as a prudent motorist, would have been required to wait until the sound either passed or she was able to satisfy herself as to what was going on before reversing (T-779). The plaintiff’s written submissions treat this as some kind of concession.

[131] If there was one factor which emerged from the defendant’s evidence, it was that she was a painstakingly cautious driver. If anything, she was over-cautious. Her mother, Mrs Lane, who also gave evidence, confirmed the defendant looking left, right and left again, backing out slowly and stopping and otherwise acting as a highly cautious driver.

[132] While I have been careful to give very little weight to issues of demeanour in the witness box, both the plaintiff and her mother presented as witnesses who were not only doing their best to tell the truth, but were the kind of persons who would be cautious to the point of timidity on the road. Mrs Lane in particular was someone with fairly pedantic views about driving. For example, she refused to have music on in the car and was very sure about the obligation to look left, right and left again.

[133] When Mrs Lane gave evidence she did so under the disability of being very seriously ill. She was however an impressive witness in terms of being someone who regarded it as important to tell the court the truth. She did not make any concessions in cross-examination and she was insistent that what she heard was a whoosh and a bang.

[134] This description of the whoosh and the bang, given by both the defendant and her mother, in circumstances where they could not see the plaintiff, is corroborative of there being parked parallel to the kerb with their backs to the direction from which the plaintiff was coming. Had they been parked at an angle, or even travelling at an angle, they would have been likely to see the plaintiff.

[135] The plaintiff drew a diagram of the four-wheel drive blocking the road so that he was forced to take emergency evasive action (Exhibit 3). That was not the evidence of Mr Hein, who said that the motorcycle approached the rear of the four-wheel drive, which suggests that it was facing north and parallel to the kerb. The street is 8.9 meters wide and the four-wheel drive is 1.9 meters wide.

[136] Either the defendant was moving her vehicle into position, in which case the car would still be moving, or she had finished her reverse and was stationary and about to leave. A parallel position is where a motorist intending to travel north would stop on the roadway, as both Mr Schnerring and Mr Keramidas agreed.

[137] Accordingly, I am satisfied that when the plaintiff came over the crest of the hill the vehicle before him was stationary and parallel to the kerb while the defendant was preparing to change gears.

[138] I now turn to a consideration of the evidence of the expert witnesses.

The plaintiff’s expert - Mr Schnerring

[139] The crucial question is whether the defendant would have heard the plaintiff’s motorcycle before she started to reverse. Counsel for the defendant helpfully has prepared a table on this issue, which is set out below.

[140] However, there is a preliminary issue. If the defendant was already starting to reversing her car as the plaintiff’s motorcycle could first be heard, what should she have done? Mr Schnerring made an important statement in cross-examination:

“… if she's already out [on the road] when he comes over the crest and she's parallel to the kerb well –

Q. What's she to do?
A. Well, I agree.

Q. There's no negligence or no imprudence on her part at all, is there?

CAMPBELL: Well, your Honour, I object to this line of questioning. It's a matter for your Honour, not for this witness.

HER HONOUR: No, that's the sort of thing that experts are supposed to - there's no ultimate issue problem. I mean he can express an opinion.

Q. So do you agree that in that case there's no negligence?
A. If the vehicle's completed its reverse manoeuvre, it's sitting there parallel to the kerb as if it was a vehicle parked on the side of the road, I'd have to say what's the problem?

WILSON

Q. Well, you would have to say that the motorist did nothing wrong wouldn't you?
A. Well, if she's pulled out and parallel to the kerb and she's just sitting there well then she's completed the reverse manoeuvre.

Q. And she’s legally entitled, so there’s nothing illegal or irresponsible about that, is there?
A. No.

Q. In fact, if she had already started the reverse manoeuvre when she heard the sound, you would agree wouldn’t you, that a prudent motorist would continue reversing in that position, rather than creating an obstruction on the roadway?
A. Well, it would be preferable to get out the - out of there as fast as you can, so the - it’s a matter of exactly where she is when she hear - when she’s in a position to hear it.

HER HONOUR

Q. Well, no, it will--
A. So if she’s a little way out, I’d stop; if she’s - if she - if you’re halfway through it, well, why stop and block the road? You keep - you keep reversing to get parallel to the kerb and out of the way of whatever’s coming.

WILSON

Q. Well, if she heard it at 150 metres as you say she may have, then he would’ve been out of her sight.
A. Yes.

HER HONOUR

Q. So she’s looked from left to right and she hasn’t seen him and she’s started the reverse, and she’s part way out of the garage when she first hears the sound.

CAMPBELL: On his side of the road.

HER HONOUR

Q. So what do you say she should’ve done?
A. Well, she’s - well, where is she in the - she’s still in the driveway.

Q. No, she’s come out of the driveway.
A. So she’s--

Q. Her car is no longer parallel with the kerb, she’s in the process of pulling out when she first hears the--
A. So she’s - she’s - she’s into the roadway reversing backwards when she hears--

Q. She’s in the process of it; whether she is ten or 20 or even 50% in, she’s in the process of reversing when she hits - what do you say she should’ve done?
A. Well - well, at that point, she’s already in motion and the best thing to do would be to get across the other side of the road and close - get close and parallel to the kerb, so you’re not actually stopping in the middle of the road to block it.

WILSON

Q. So is this a correct analysis of your opinion that you have no criticism at all of the motorist’s behaviour, unless she was stationary in her driveway when she heard the motorcycle approaching?
A. Well, it depends on - well, on that scenario, yes.

Q. So once she’s embarked upon the journey, she’s fine, there’s nothing wrong with what she does, she should complete the reversing manoeuvre. And if it’s already completed--
A. Well--

Q. --when she hears the motorcycle approaching, the safest thing to do is to stay put. Do you agree with that?
A. Sorry, you repeat that again?
Q. If she’s already completed the reversing manoeuvre when she first hears the motorcyclist, the safest thing for her to do is to remain stationary.
A. Yes.”(T- 503 line 23 – 505 line 20)

[141] He went on to say (at T-506), “once she gets her back out into the road, well then she should keep going”. He confirmed that once the rear of her vehicle passes the outer side of the parked Commodore the safest thing is “probably keep going” (T-506).

[142] In other words, even if the defendant’s vehicle had not been stationary on the road, but had been in the process of reversing out when the sound of the plaintiff’s vehicle first became audible at 150 metres away, the safest thing would have been to keep going.

[143] According to this analysis, the only way that the defendant can be found to have been negligent is if, while she was stationary and waiting to back out of the driveway, she hears (but does not see) the sound of the plaintiff’s motorcycle from more than 150 metres away (to use the plaintiff’s experts estimate as to how far away the noise would first be audible), the defendant should not have commenced her reversing procedure out of the driveway.

[144] The difficulty with this scenario is, that the unchallenged evidence is, that the four-wheel drive was stationary for a period of time at which Mr Hein said was about four seconds and which the defendant and Mrs Lane (although challenged on this issue) said was up to six seconds.

[145] Even if the defendant had not been the cautious and conservative driver that I find her likely to be, there must have been a brief period during which the vehicle was at rest. Given that the vehicle was travelling backwards at a slow speed immediately prior to that, it is impossible, if one accepts that the plaintiff’s motorcycle was travelling at a speed faster than 60 kph (as was obviously the case), the defendant could not have performed the manoeuvre and become stationary during the time between which the plaintiff was 130 – 150 metres away and travelling at a speed in excess of 80 kph.

[146] The defendant has provided a very helpful table of speeds and distances which demonstrate that, if the defendant was travelling at a speed of over 80 kph, the likelihood is that by the time the plaintiff’s motorcycle’s noise was audible to the defendant, she had already completed, or was just about to complete the turn, and her vehicle was either at rest or gliding to a rest, by which time it was simply too late for her to take any steps for her to avoid the defendant.

[147] The text of the table is as follows:

Speed/distance

130 metres
(earliest point at which Keramidas said motorcycle available to be heard)

150 metres
(per Schnerring)

80 kph
i.e. 22.22 m/s

5.85 seconds

6.75 seconds

90 kph
i.e. 25 m/s

5.2 seconds

6 seconds

100 kph
i.e. 27.78 m/s

4.68 seconds

5.39 seconds

[148] The plaintiff’s submissions are firstly, that the defendant reversed at a speed greater than 5 kph, namely 10 kph. However, as the defendant’s table shows, this would make little difference in that by deducting 4 to 6 seconds from any of the figures on the table, the defendant’s motor vehicle still had to be at least half way through the reverse manoeuvre.

[149] The defendant secondly submits that the evidence of Mr Hein, “clearly places Zilio on the roadway, and visibly so, whilst the defendant was reversing” (written submissions, paragraph 66.2), when in fact Mr Hein has said to the contrary.

[150] However, even if the defendant was still completing the manoeuvre, if she had commenced the manoeuvre before she heard Mr Zilio’s motorcycle, there was really nothing more that she could do, for the reasons explained by Mr Schnerring.

[151] This brings me to the question of the position of the defendant’s vehicle.

The position of the defendant’s vehicle

[152] The plaintiff in his evidence claimed the four-wheel drive was blocking the road and he was forced to take emergency evasive action. He drew a diagram (Exhibit 3) showing the four-wheel drive at right angles to the kerb.

[153] Both Mr Schnerring and Mr Keramidas agreed that a vehicle reversing out of 13 X Street and intending to travel north would be likely to stop on the roadway in a parallel position. The defendant and Mrs Lane both said that the four-wheel drive was parallel to the kerb. Mr Hein’s description of the motorcycle was that it approached the rear of the four-wheel drive, which is consistent with the vehicle facing north in a parallel position. He did not paint a picture of the four-wheel drive as being across the road. The skid mark of the plaintiff is shown as being at a, “bizarre location” (T-482 and 483) in terms of a rider avoiding a vehicle both on the road that is in front of him, according to Mr Schnerring.

[154] Both experts rejected the plaintiff’s description and diagram of the defendant’s vehicle’s location as unlikely. The 4WD vehicle was in their view parallel to the kerb.

[155] If the defendant’s vehicle was parallel to the kerb and stationary, what was it about the vehicle that led to the accident? One of the answers is that, the plaintiff was travelling at high speed and it is to the issue of the plaintiff’s speed that I shall now turn.

The plaintiff’s speed

[156] Ms Doyle was one of two ambulance officers who attended at the scene of the accident. She completed a case sheet upon her return to the vehicle after taking the plaintiff to Westmead Hospital (T-609-610). That case sheet, which is Exhibit 15, says as follows:

“Call to motor vehicle accident. On arrival male patient laying [sic] on the grass way.

[239] This practical and commonsense approach to assessment of future economic loss was taken by Rolfe DCJ in Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199. The plaintiff in those proceedings had a work history of 22 years, during only two of which (at [8]) were years in which he had worked. This is actually more than the plaintiff can demonstrate that he has done in these proceedings.

[240] At [76]-[77], Rolfe DCJ explained how he considered it was best to arrive at a figure for the plaintiff’s prospects of working full-time:

“76 The Court is required to approach the matter in accordance with the provisions of s 126 of the Motor Accidents Compensation Act 1999. Having regard to the matters I have set out, but allowing for the fact that the plaintiff has not been in gaol for 17 years, he has not had heroin for at least five years and assuming a retirement age of 65 years, I assess the plaintiff’s prospects of working full time during his remaining 22 years of working life as no more than 15%. I have therefore assumed the plaintiff would work in total for about 3½ years during this time.
77 It is common knowledge that average weekly earnings for males at the present time are about $1,200 per week gross or $880 per week net. I do not think it likely that the plaintiff would earn this much if employed at the present time. I consider an appropriate figure would be $600 net per week. Approaching the matter on the basis of the assumptions set out above, namely that the plaintiff would only have worked for 3½ years out of the next 22 years, I arrive at a round figure of $67,000 ($600 x 703.8 x 3.5 22). From this, 15% should be deducted for the usual vicissitudes. This results in a figure which I award for future economic loss in the amount of $57,000 (round figures).”

[241] In Ragen v The Nominal Defendant (No 3) [2007] NSWDC 86, Johnstone DCJ considered the future economic loss appropriate for a plaintiff who was aged 40 at the time of accident and who had been in continuous employment since leaving school, largely in the publishing industry, but had some drug addiction problems. The approach taken by Johnstone DCJ was as follows (at [114]-[119]):

“114. I find that the fragility of Mr Ragen’s mental state, and his predisposition to psychiatric illness, were such that the probability of future episodes of incapacity was very high, and that he would from time to time have lost wages on a regular basis. That pattern began to emerge as early as 2001. I also take into account his drug addiction and all his other problems including the capsulitis in the shoulder, the low back problems and the major disability in his knees. . In addition to a high probability of significant periods off work, I also consider it probable that he would not have consistently worked the same high levels of overtime to age 65.

115. The evidence is that his pre-injury earnings consisted of a large component of overtime. It would not be appropriate, therefore, to give full weight to the continuing comparable figure of $873.00 per week continuously through to age 65. There were, in addition, periods of unemployment before the accident, one of which was extended.

116. I come to s 126(2) of the Motor Accidents Compensation Act 1999 which I am required by a line of authority, culminating in Nominal Defendant v Lane [2004] NSWCA 405, to apply in a particular way.

117. For all the reasons set out above, I am satisfied that the following assumptions about Mr Ragen’s future earning capacity accord with his most likely future circumstances, but for his injury: he would have worked till the age of 65 in the same or similar employment, at a similar level of base wage. I am not, however, satisfied that Mr Ragen would have continued to perform the same level of overtime, or that periodically he would not have gone off work and lost significant wages for various reasons including his other disabilities, his drug addiction and due to illness from episodic psychiatric reactions: s 126(1) of the Motor Accidents Compensation Act 1999.

118. The amount of the award of damages for future economic loss that would have been sustained by Mr Ragen would in the ordinary course be adjusted by reference to an 85% possibility that the events concerned might have occurred but for his injury. However, having regard to the additional factors, specific to Mr Ragen, referred to above, I find that the amount of the award should be adjusted by reference only to a 75% possibility: 126(2).
119. I therefore adjust the amount of the award of damages for future economic loss from $545,625.00 down to $409,219.00. To this I add future loss of occupational superannuation at the rate of $102.00 per week, for the same period, similarly adjusted under s 126(2). The calculation is $47,812.00. Accordingly, I find future economic loss in a total amount of $457,031.00.”

[242] This case is of assistance because it shows the approach taken by the court where a plaintiff has a long history of continuous employment as well as a drug addiction problem. In other words, this is when revised vicissitudes percentages should be applied. A similar approach was taken by the Court of Appeal (i.e. a 25% discount) in Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 at [60].

[243] The need for judges to embark upon an explicit consideration of the characteristics of the plaintiff’s workforce history was dwelled upon at some length by the Court of Appeal in Jones v Bradley [2003] NSWCA 81 at [193]ff. The Court of Appeal explained (at [193]-[195]):

“193 Accordingly, in making any assessment of the Respondent’s loss, it was necessary for the Trial Judge explicitly to consider the characteristics of the Respondent in the workforce. Implicit in the Trial Judge’s finding is an assumption that the Respondent would have remained in employment without any break from the time of the accident until retirement. The facts of the Respondent’s employment history cannot in any way be used to support such an assumption. The Respondent left high school in 1985 without obtaining any qualifications. In 1985-1986 the Respondent worked for three months as a shop assistant. In 1986 the Respondent ceased paid employment to have her first child. Since that time the Respondent has never been employed outside of the home. In the early 1990s the Respondent was in custody for 3.25 years. She had developed drug addictions. In the time since the Respondent’s release from Jail in October 1995, until the accident the Respondent had been seeking employment, but had not been successful in that search. Accordingly, based on the past history of the Respondent there is no evidence which can be used to support the claim that the Respondent would have been able to secure steady and permanent employment.

194 The second difficulty with the assessment by the Trial Judge is that he accepted that she would be able to earn in excess of the average wage of female shop assistants on a permanent basis. Such a finding did not include consideration of the fact that the Respondent only has 3 months experience in such a position (although it is unskilled) and that that work experience was in 1985 and 1986. Additionally, if money handling is involved in such positions, trust by the employer is required. The fact that the Respondent has a history of criminal activities would unfortunately significantly reduce her opportunities of obtaining such employment. Further at the time of the accident the Respondent was on the methadone programme. These various factors indicate that the Respondent would have great difficulty in competing successfully in the employment market.
195 In Yip v Zreika [2001] NSWCA 446, the Court of Appeal reassessed damages for economic loss awarded to an individual who had a relatively poor employment record. In that case the Trial Judge had assessed economic loss on the basis that the Plaintiff would be employed for 42 years without break. The court considered that such an assessment was fanciful as there was little evidence to support the conclusion that the Plaintiff would have settled down and obtained secure employment. The majority of Mason P and Young CJ in Equity allowed a third of that period on the basis of the Plaintiff’s sporadic work history. This analysis is apposite to this case. The Respondent’s work history indicates that she would have had difficulty in obtaining employment at the rate of pay allowed by the Trial Judge and for the period of time allowed by the Trial Judge. Accordingly, this ground of appeal must be allowed; its consequence remains to be considered.”

[244] The Court of Appeal took a similar view in Goodsell v Murphy [2002] NSWCA 216. The plaintiff in those proceedings had a tragic history which included starting to use heroin five to six weeks after the accidental drowning of one of her children and considerable health problems including an ectopic pregnancy. This case has long been the landmark concerning the correct approach to the interrelation between drug abuse and employability (see in particular [35]ff). As Mason P noted (at [38]), “the critical issue is the [plaintiff’s] pre-accident condition and capacity to earn income”. The plaintiff in those proceedings was unemployed and had not worked for many years and was in receipt of social security benefits. Her only evidence of paid employment (see [42]) was a brief history of driving motor vehicles for an unspecified period. The court noted the plaintiff’s twenty-year unemployment history and the submissions of counsel that “[t]here was no rational basis upon which the Trial Judge could find that a miracle had occurred and, but for the accident, she would have embarked upon a steady earning career until 60 years of age” (at [48]). The award for economic loss was set aside (at [60] and [62]).

[245] There are a number of earlier decisions, along similar lines, of the Court of Appeal concerning damages and drug addiction (e.g. Yates v Jones (New South Wales Court of Appeal, 7 December 1989, unreported); Knight v GIO (NSW) (New South Wales Court of Appeal, Kirby P, Priestley and Cole JJA, 13 April 1995, unreported)).

[246] Having set out these principles I now turn to a detailed consideration of the issues relevant to the plaintiff’s past and future economic loss.

Past and Future Economic Loss

[247] It is submitted that the plaintiff “worked intermittently” as a gyprocker. Uninjured, he would have earned not less than $100 per week, say $5,200 per year, which multiplied by 810 would be $81,000. Accordingly a buffer of $75,000 is sought. The defendant submits that given the plaintiff’s “well entrenched lifestyle which did not include work” this “might be considered excessive”.

[248] I have set out the case law on this topic in some detail. It supports the approach taken by the plaintiff. The sum sought, which is framed as a buffer, is appropriate, having regards to the sums awarded to plaintiffs in similar circumstances in the above cases. It must be remembered that the plaintiff was only 29 at the time of the accident and it is conceivable, although unlikely, that he might have worked some time in the future.

Past and Future out of Pocket Expenses

[249] Past out of pocket expenses are mathematically agreed at $88,380.00

[250] Future out of pocket expenses of $250 per week (x 950.4 amounting to $237,600) are submitted to be excessive. The plaintiff clearly requires ongoing treatment and the regime proposed by Dr Adler is largely agreed to by Professor Yeo.

[251] I shall deal with each of these in turn:

(a) Occupational therapy $4,300 – Professor Yeo agrees this is necessary so it should be allowed.
(b) GP review 6 times per year at $50 – Professor Yeo agrees so this should be allowed.
(c) Orthopaedic review 6 times per year at $50 – this is not challenged.
(d) Rehabilitations/spinal specialist review twice a year for $210 – Professor Yeo agrees, so this should be allowed.
(e) Urological review once every two years at $210 – Professor Yeo says once a year, so I would follow his suggestion and allow $210 per year. This is a common problem for persons with this kind of injury.
(f) Psychological review 10 sessions every 2 years at $220 per session – this is not challenged and in my view is very moderate.
(g) Sex therapist 20 sessions at $150 – this is not challenged.
(h) Podiatrist once a month at $60 per session – Professor Yeo says once every two months but I consider this is important. In particular I do not accept Dr Zeman’s suggestions that the plaintiff can look after himself in this regard.
(i) Hospitalisation for UTI infections every 2 years 4 days at $450 per day : Professor Yeo suggested 1 week every three years, which is much the same.
(j) IVP/urological testing every 5 years at $350 – I think this is insufficient. This is a major ongoing treatment problem for the plaintiff and I think he should have an ultrasound, review and investigation every two years as suggested by both Professor Yeo and Dr Zeman. If the parties can agree on the costing for this, as well as medication (see below) a total for the future care can be arrived at.
(k) Ankle surgery $6,710 – Professor Yeo does not recommend this. In my view, it is more likely than not, and should be allowed.
(l) Hamstring release surgery $4,600 – this is not challenged although it is noted it will be necessary in the next two years.
(m) Spinal outreach team review annually at $1,200 – this is not challenged.
(n) Physiotherapy – one-off review for $1,440 and 20 per annum if symptomatic at $50 per session. The usefulness of physiotherapy for this kind of injury is open to debate, as Dr Zeman and Professor Yeo both note. I prefer Professor Yeo’s estimate of 3 per annum which is $180.
(o) Occupational therapy – 5 assessments at $1,200 per assessment. Professor Yeo suggests once a year, Dr Zeman says it is not required and Mr Beaver says 2 hours per fortnight over three months (42 hours x 40 per month). I consider the scheme proposed by the plaintiff’s medical experts for a series of assessments throughout life to be a sensible approach.
(p) Orthotist – annual review of $120 – this is not challenged.
(q) Medication – coloxyl ($240 per annum) and ditropan ($227 per annum) – Professor Yeo agreed and Dr Farnsworth also suggested Viagra. I also query whether the plaintiff will require any allowance for painkillers or other prescription drugs in relation to his ongoing psychological problems; this is of course a considerable risk
(r) Equipment – one pair of shoes per annum at $800 (not challenged) and one ankle foot splint per annum at $600, new calliper every two years at $1,420, wheelchair cushion at $280 annually and wheelchair replacement every 5 years $1,650 – Professor Yeo agrees and these are reasonable figures.

Future Travel Expenses and Home Modification

[252] As to the estimate of future travel expenses from Travelaw, I do not see why it is necessary to provide for travelling expenses as per the travel law estimate. I would allow $30,000.

[253] The defendant relies upon the report of Mr Hesse and submits a reasonable allowance is $50,000. The plaintiff seeks $100,000.

[254] In practical terms, if the plaintiff is living in rented accommodation and likely to move, he may need to carry out modifications more than once. I prefer the estimate of $100,000 for this reason.

Past and Future Home Care

[255] While I note the defendant’s submissions, I cannot regard the wise and compassionate assessment of these issues by Professor Yeo as anything other than exemplary. Professor Yeo’s estimate of 20 hours per week since his discharge from Moorong to trial of $20 per hour would be 20 x 20 x 277 weeks = $110,800 and this sum should be increased to allow for the additional weeks up to judgment, since there have been considerable delays not of the plaintiff’s making.

[256] I note the defendant’s submission that the plaintiff has been having persons on pensions living in as his carers and that he should have no allowance for this reason. Given the plaintiff’s financial situation, I cannot see that he had any other alternative. He clearly needs home care. This is a situation commonly found by the courts, and submissions of this kind are generally disregarded.

[257] As to future home care, Professor Yeo allows:

(a) 14 hours x $40 per hour x multiplier of 950.4: $532,224

The defendant submits, and I accept, that the hourly rate of $40 is excessive. The correct rate should be $30.

(b) 7 hours additional care deferred 15 years 7 x $40 x 950.4 x .481: $128,000

The defendant submits, and I accept, that the correct multiplier is 865.9 and that the hourly rate should be $30. This would make a total of $87,500.

(c) Nursing care for the last 10 years of 10 x $55 x 950.4 x .157: $82,067.

The hourly rate is very high. I prefer the defendant’s rate of $35 and accept the estimate of $26,157 which defers this to 35 years. While I appreciate the plaintiff will decline in later years and his life expectancy is affected, the likelihood that he will be bedridden and requiring nursing care in his mid-40s is not supported by the medical evidence.

(d) Disabled taxi 6 hours a week at $45 per hour $256,608.-

This does not appear in Professor Yeo’s report; he says the plaintiff is able to drive. The defendant submits no allowance should be made.

The plaintiff has a long history of never being licenced and has been dealt with by the criminal courts for driving without a licence and whilst disqualified. If he does drive, he will need to have a modified car. In practical terms, this is likely to happen in the future as well, given his history.
This is a very difficult issue to determine on the fairly scanty material before me. The most sensible approach would be to allow a “cushion” figure of $50,000 for the plaintiff to catch taxis and drive modified cars when he is legally able to do so.

Conclusions on quantum

[258] The plaintiff’s estimates on quantum generally are sensible and moderate. In my view some additional items should be included in future medical care such as medication and urological issues. If the parties can agree on costings for these items, they can agree on the quantum in the event of this being of assistance to any appellate court which is disposed to consider my findings on quantum.

Orders

(1) Judgment for the defendant.

(2) Plaintiff pay defendant’s costs.

(3) Liberty to restore.

(4) Exhibits retained for 28 days.

I certify the preceding 258 paragraphs and 4 orders

(along with Schedules A and B following) to be a true

copy of her Honour Judge J C Gibson’s reasons for

decision delivered on 28 July 2009

………………………………………………..

Vincent Mok

Associate to her Honour Judge J C Gibson

District Court of New South Wales

Schedule A – Exhibit C

STATEMENT OF PHYO HEIN

Address: 14 X Street, Blacktown, NSW 2148
Telephone: [deleted]
Date of Birth: [deleted]
Date of Accident: 1 [sic] July 2003

1. My name is Phyo Hein. I currently reside with my parents at 14 X Street, Blacktown NSW.

2. I am currently employed as a Mail Sorter with Australia Post, and generally work the night shift, as such I prefer to be contacted after 11:00am.

3. On 1 [sic] July 2003, at 2:00 or 3:00pm, I was out the front washing my car on the driveway. The weather was fine and the road surface dry.

4. Approximately 15 minutes prior to the accident, I was inside my car vacuuming, when I heard a motorcycle travelling along X Street in a Southerly direction. The motorcycle sounded very loud, I was later informed by the riders [sic] brother that the motorcycle had a hole in the muffler.

5. Approximately 15 minutes later, I heard the motorcycle travelling back down X Street in a Northern direction towards Y Street. At that time, I was sitting in my car and I stepped out as I was interested in seeing what kind of a bike it was.

6. I am unable to estimate what speed the motorcycle was travelling.

7. My neighbour Mrs Lane resides across the road at 13 X Street. Mrs Lane drives a blue 4 wheel drive registration number: [deleted].

8. As I heard the motorcycle travelling towards me, Mrs Lane began to reverse her 4WD vehicle out of her driveway and out onto X Street, and stopping in the North bound lane with the front of her vehicle facing down X Street towards Y Street.

9. There was a blue Commodore registration number: [deleted], parked on the road out the front of Number 11 X Street.

10. I then witnessed the motorcycle rider brake heavily and attempt to veer around the stationary blue 4WD.

11. I can’t recall where I first saw the motorcycle in relation to when the 4WD reversed out of her driveway. It all happened so quickly, I only remember seeing the motorcycle rider attempt to avoid a collision with the 4WD.

12. The motorcycle began to skid and the rear of the bike drifted out to the right, the motorcycle skidded about 10 metres before colliding into the corner of the commodore and the rider was propelled over the handle bars, the rider landed on the bitumen road heavily and then tumbled over and over, the riders [sic] helmet flew off as he tumbled. The rider came to rest on the grass nature strip in front of number 12.

13. The rider layed [sic] motionless and screamed in pain. I cant [sic] recall what Mrs Lane did with her 4WD.

14. Everyone came out of their homes to investigate and the lady from No:12 rang for an ambulance.

15. The motorcycle rider I now know as Ricky Zilio asked me to contact his girlfriend who resides at unit 2 – 44 X Street, which I did.

16. When I returned, there were many people assisting Ricky until the ambulance arrived. Ricky continued to scream in pain and yell out “my back hurts”.

17. The ambulance transported Ricky to Westmead Hospital.

18. At the time of the accident, the owner of the Commodore was not home and returned home that evening.

19. The motorcycle was pulled to the side of the road and remained in that position until Ricky’s brother collected it that evening. Ricky’s brother asked me what happened and I told him what I saw. The Police also arrived around the same time. I also told the Police what I witnessed, the Police Officer did not ask me to estimate the speed the motorcycle rider was travelling. The Police Officer did not take a formal statement and merely jotted down notes.

20. I have not been contacted by any other investigators to date.

Signed by Mr Hein – Dated 02/10/03

Schedule B – Exhibit D

In the matter of:

Police - v - ZILIO [sic]

Place:

Blacktown Police Station

Date:

28 October, 2004

Name: Phyo Hein

STATES:

1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true.

2. I have not told any lies in this statement.

3. I am 26 years of age.

4. On the afternoon of the 20th [sic] of July, 2003, I was washing my car in the driveway of my house at 14 X Street, Blacktown, when I heard the sound of a motorcycle coming down the street and I looked up to see what sort of bike it was, when I saw the car reversing from the house across the street. I then saw the motorcycle heading towards the car reversing and he tried to overtake the car on the right and the bike lost control and swerved form side-to-side and hit the parked car on the other side of the road. The car was parked across the road from my place, but towards Y Street. The motorcycle hit the front of that car and the rider was thrown onto the roadway and then tumbled onto the grass, just down from my house. I heard the rider screaming out in pain and my neighbour came out at the same time and I asked her to call an ambulance. I didn’t want to touch him, as I didn’t know what was wrong with him.

5. A number of people had come over to help and asked him where he was from. He said that he had come from a friends [sic] place and he wanted somebody to tell her what had happened. I then driver [sic] my car down to a unit in X Street, near the school, and told her what had happened. As I was telling her, it appeared that somebody was telling her over the phone. I then drove back to my house and waited with all the other people for the Ambulance [sic] & police [sic]. As the ambulance was putting the rider into the back of the ambulance, I assisted them with that and I heard the rider saying that his back was hurting.

Witness: [signature] Signature: Phyo Hein

******

CITATION:	Zilio v Lane [2009] NSWDC 226
HEARING DATE(S):	18-22 and 25 February 2008; 28 March 2008; 20 June 2008; 2-6 February 2009; 17 April 2009; 1 and 22 May 2009, 23 July 2009
JUDGMENT DATE:	28 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Judgment for the defendant. (2) Plaintiff pay defendant’s costs. (3) Liberty to restore. (4) Exhibits retained for 28 days.
CATCHWORDS:	TORT - motor vehicle accident - personal injury - liability - contributory negligence - judgment for defendant - alternative finding of 100% contributory negligence
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), ss 5S and 5R Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), ss 38 and 135 Motor Accidents Compensation Act 1999 (NSW), s 138
CASES CITED:	Angel v Hawkesbury City Council [2008] NSWCA 130 Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 Goodsell v Murphy [2002] NSWCA 216 Harrison v Melhem & Anor (No 1) [2006] NSWSC 1258 Harrison v Melhem & Anor (No 2) [2006] NSWSC 1293 Harrison v Melhem [2008] NSWCA 67 Jones v Bradley [2003] NSWCA 81 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Knight v GIO (NSW) (New South Wales Court of Appeal, Kirby P, Priestley and Cole JJA, 13 April 1995, unreported) MacKenzie v Nominal Defendant (2005) 43 MVR 315 Nominal Defendant v Lane [2004] NSWCA 405 Ragen v The Nominal Defendant (No 3) [2007] NSWDC 86 Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199 Vale v Eggins [2006] NSWCA 348 Wynbergen v Hoyts Corp Pty Ltd (1997) 149 ALR 25 Yates v Jones (New South Wales Court of Appeal, 7 December 1989, unreported) Yip v Zreika [2001] NSWCA 446
PARTIES:	Plaintiff: Ricky Zilio Defendant: Heather Lane
FILE NUMBER(S):	1220 of 2005
COUNSEL:	Plaintiff: Mr D Campbell SC / Mr T Meakes Defendant: Mr D Wilson
SOLICITORS:	Plaintiff: Beston Macken McManis Defendant: Sparke Helmore Lawyers

Speed/distance	130 metres (earliest point at which Keramidas said motorcycle available to be heard)	150 metres (per Schnerring)
80 kph i.e. 22.22 m/s	5.85 seconds	6.75 seconds
90 kph i.e. 25 m/s	5.2 seconds	6 seconds
100 kph i.e. 27.78 m/s	4.68 seconds	5.39 seconds