ltskos v The Nominal Defendant NSW
|ltskos v The Nominal Defendant
|Medium Neutral Citation:
| NSWDC 244
|24, 25 and 26 May 2021
|Date of Orders:
|17 June 2021
|Date of Decision:
|17 June 2021
|J Smith SC, DCJ
|1. Judgment for the plaintiff in the sum of $585,000.
2. The defendant is to pay 90% of the plaintiffs costs as assessed or agreed.
|NEGLIGENCE – Motor Vehicle Accident – Nominal Defendant – collision with unidentified vehicle – denial of liability – were injuries caused by negligence of another driver – balance of probabilities – contributory negligence
|Motor Accidents Compensation Act 1999
|Briginshaw v Briginshaw (1938) 60 CLR 336
Nguyen v Tran [2018} NSWCA 215
Re Minister for Immigration & Multicultural Affairs; Ex
parle Applicant S2012002  HCA 30; 77 ALJR
|Carlo ltskos (Plaintiff)
The Nominal Defendant (Defendant)
Mr W Fitzsimmons SC (Plaintiff)
Mr K Rewell SC (Defendant)
- The plaintiff claims damages under the Motor Accidents Compensation Act 1999 against the Nominal Defendant for injuries suffered by him in a motor accident that occurred on 18 January 2015. He says that he was riding his motorcycle on a two lane road when he was hit by an oncoming vehicle driving on his side of the road, which caused him to lose control of the motorcycle and suffer injuries to his left hand and right foot.
- The defendant does not dispute that the plaintiff was injured when he came off his motorcycle, but denies that the accident was caused by an oncoming vehicle. Alternatively, it argues that the accident was contributed to by the plaintiff’s own negligence.
- The only eye witness was the plaintiff. Apart from the plaintiffs father-in-law who gave evidence of what the plaintiff told him about the accident, the other witnesses were experts in accident reconstruction and in biomechanics. In those circumstances, the credit of the plaintiff as a witness is a very important issue; however, neither the issue of his credit, nor the other factual issues in the proceedings can be viewed or determined in isolation. President Beazley explained in Nguyen v Tran  NSWCA 215 at  (Emmett AJA and Bellew J agreeing):
- “The fact finding exercise which is required to be undertaken by the tribunal of fact, whether that be judge or jury, is not properly approached in that segmented way. The tribunal of fact, after hearing the witnesses, making assessments as to the credit and reliability of their evidence and examining the documentary evidence, if any, must weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case.”
- Even taking that approach, it is often convenient for trial judges, and other decision-makers who are required to prepare written reasons for their decisions, to express their findings sequentially. For that reason, such a method of expression should not be taken to indicate that the evidence has not been viewed as a whole: see Re Minister for Immigration & Multicultural
Affairs; Ex parte Applicant S20/2002  HCA 30; 77 ALJR 1165 at  (Gleeson CJ).
- That said, it is important to record, at the outset, my impression of the plaintiff as a witness having had the opportunity to closely observe him as he gave evidence. My firm impression was that the plaintiff was an honest witness who made every effort to give accurate evidence without consideration of whether that evidence was favourable to him or not. As will be seen, some of his evidence, such as his speed at the time of the accident and his location on the road, was not favourable to him. I accept that the plaintiff may not have known that some of this evidence was not favourable to him; however, he was consistent in all of his evidence even when challenged and gave his answers honestly.
The lay evidence
- The following aspects of the evidence were uncontested and I accept them. The plaintiff was born in May 1979 and was 35 at the time of the accident. He started riding motorcycles at the age of eight. He was mostly riding trail bikes up to the age of 21 when he obtained his motorcycle licence. The only motor accident the plaintiff had had prior to this accident was when he was 18 and hit by a car when he was riding a motorcycle.
- In the 12 months prior to the accident the plaintiff rode a motorcycle every three days. The motorcycle involved in the accident was a Yamaha KTM 300 EXC (registration no. NMH01) which was a road and trail bike with “knobby” tyres; that is, with tyres that were suitable for the road, but had raised tread designed to be able to handle off-road riding. The plaintiff had ridden motorcycles with this type of tyre for many years.
- On the day of the accident, 18 January 2015, the plaintiff was riding a route he called “the loop” which took him from his home in Glenmore, through Douglas Park, back up to the Appin Motocross Track, through Campbelltown and back home. He had ridden the loop about seven times on the Yamaha and about 10 times on a Honda XR 600, another road trail bike. He had never had any previous problems riding that route. The conditions were clear and
- The plaintiff said that the accident occurred on a downhill part of Douglas Park Road approaching a causeway crossing the Nepean River. The road travels in a north-south direction at this point and he was travelling south, on the left side of the road.1 As he approached a right hand bend in the road, he was travelling at about 50 km/hr, which was the speed he usually rode at on this part of the loop. The evidence establishes that this bend is about 200 to 225 metres north of the causeway.
- After the accident, the plaintiff was off his motorbike and on the road. He regained consciousness and saw that his motorbike was further down the road, “in the guardrail”. He said that he was unable to kick start the motorbike because his right foot was “completely mashed up” and so he clutch started the motorbike, turned around and rode home. His right foot and left wrist hurt all the way home. When he arrived, he called his son who helped him take off his riding gear and he lay on the couch. After about 15 minutes he realised that there was something “really wrong” with him and so called his father-in law (who lived in a house on the same block of land) and was taken to Camden Hospital. The plaintiff was then taken by ambulance to Campbelltown Hospital.
- The ambulance records show that the “staff state pt was involved in an MBA, whereby he was clipped by a car and crashed inti (sic) a guardrail.” The triage note m de at Campbelltown Hospital at 16.37 stated that the plaintiff had been “involved in a MVA while riding bike, clipped by another car.” The clinical notes made at 16.40 recorded that the plaintiff had been “involved in MVA – was riding motor bike and was clipped by car”.
- The plaintiff suffered injuries to his left wrist (a fracture of the left scaphoid) and the right foot (a comminuted fracture of the right navicular bone and second cuneiform)2.
- On 21 January 2015, after discharge from the hospital, the plaintiff made a brief statement to the police about the accident. The notes made by the police officer at the time relevantly state the following:
- “… I was travelling towards Douglas Park towards the bridge crossing. I was on my far left side of the road. I came to a right hand tightcorner bend. A white car came around the comer. All I can remember from there was the front of my motorbike collided with the drivers side of the other vehicle. I blacked out. I woke to laying on the road and my bike was wedged under the guardrail. I felt pain in my left hand and right foot …n
- The plaintiff signed the note.
- The plaintiff also relied on photographs taken of the motorcycle after the accident. The photographs were taken by the plaintiff’s son. They show some scraping to various parts of the right side of the motorbike, damage to the front of the motorbike including a slight deviation in the forks and some damage to the left side of the handlebar, in particular, where the mirror is missing. It was uncontested that this damage was caused by the accident.
- The fo!lowing aspects of the evidence for the plaintiff were in dispute.
- In his evidence in chief the plaintiff said that he was coming to the last right hand bend on Douglas Park Road when a vehicle crossed over to his side and impacted his right side. He said that he was in the middle of his lane. In cross-examination the plaintiff said that he was in the middle of his lane, towards the left and, on that basis, that the vehicle that hit him must have been in his lane.
- The plaintiff was cross-examined on a document prepared by Mr Byrnes, an expert accident investigator qualified by the plaintiff.3 This document was prepared on the basis of the plaintiffs version of events as explained to Mr Byrnes in conference and, in particular, that he was travelling at an estimated speed of 50 to 60 km/hr, his motorbike ended up in the guardrail and he ended up just before that rail. The document shows three coloured areas: red where Mr Byrnes estimated that the “possible area of impact” occurred; yellow where the plaintiff came to rest; and black where the motorbike ended up as can be seen in photograph below.Figure 27: The assumed area of conflicted as described by the Plaintiff during a conference on Friday 16 March 2018, at Paramount Compensation Lawyers, Liverpool Chambers.
The Red thatched area emphasises the possible area of impact
The Yellow thatched overlay emphasises the Plaintiffs at rest position. The Black thatched overlay emphasises the Motorcycle’s at rest position.
- The plaintiffs evidence was that the collision with the car was not in the area marked red but, rather, at the bend in the road.
- The plaintiff’s father-in-law, Mr Cathrada, also gave evidence. He said that the plaintiff called him to ask him to take him to the hospital. When he saw the plaintiff, he was lying on the couch and he asked the plaintiff why he wanted to go to hospital. The plaintiff replied “I was hit by a white car”. In cross examination, Mr Cathrada said that he did not recall any conversation apart from this and that there was no conversation on the way to the hospital. He said that he did not recall anything else that the plaintiff said that week or that year.
- The plaintiff’s expert, Mr Byrnes, attended the site of the accident, took measurements and photographs. On the basis of his examination of the scene, he estimated the critical speed of the right hand curve to be approximately 43.5 km/hr. The critical speed of a curve is the speed where the centrifugal force placed on the tyres created by the speed of the vehicle exceeds the friction supply interface between the road and the tyres. Mr Byrnes estimated that the time taken from the identification of. an immediate hazard to an emergency response was about 1.1 to 1.7 seconds. He also calculated that,.from the moment of perception of the threat from the unknown vehicle, the plaintiff’s motorbike required between 35.6 and 40 metres to come to rest.
- In summary, his conclusions were:
- the collision sequence could have occurred as recounted by the plaintiff;
- (2) once the plaintiff entered the right curve he would not have been afforded enough time or distance to avoid the encroaching unidentified vehicle;
- (3) the damage occasioned to the motorcycle was not consistent with the motorcycle sliding/vaulting on a coarse bitumen surface.
- The defendant’s reconstruction expert, Mr Keramidas, concluded that the accident could not have occurred as alleged by the plaintiff and that the damage to the motorcycle was consistent with a single vehicle accident. There were two important reasons for the first of these conclusions: first, that, given the distance the road barrier was from the right hand bend, the accident could not have occurred at the bend. Secondly, if the motorbike had been hit by an oncoming car, there would have been paint transfer from the car to the motorbike and the motorbike would have collapsed onto its left side, whereas there was neither any paint transfer or left side damage shown in the photographs consistent with those two outcomes.
- Mr Byrnes and Mr Keramidas conferred prior to the trial and prepared a joint report. In the report, both experts said that they agreed that, if an impact occurred in the tight section of the right hand bend, it would most likely involve the motorcycle being deflected off the road to the left well before the guardrail. They also agreed that the impact configuration to involve the motorcycle collapsing was a “side-swipe”. The essential difference between the two experts was that, while Mr Keramidas considered that the involvement of a second vehicle was by no means certain, or even probable on the limited physical evidence available, Mr Byrnes thought that there was no definitive evidence available to refute or confirm the plaintiffs version of events given in conference.
- The experts gave evidence together. While, they agreed that it was possible for the plaintiff to have ridden around the right hand bend at 50 km/hr, they confirmed their opinion that the plaintiff could not have lost control at or before the apex of the right hand bend and for his motorbike to reach the guardrail. In respect of the effect of a collision on the motorbike, Mr Byrnes said that if it was more of a glancing blow, it was unlikely to have resulted in a capsize to the left and Mr Keramidas agreed that a glancing blow would lead to a loss of stability in the motorbike before the motorbike tipped over to its right, provided the front of the motorbike did not come into contact with the car. He qualified that slightly by saying that the motorbike would be thrown to the left by an impact with the handlebar that caused movement even slightly to the right. He said that there could be contact without immediate loss of control so long as the contact was very slight.
- That was an important qualification. Mr Keramidas explained that the motorbike had a hand guard that bent on impact. Mr Byrnes said that they are designed to protect the knuckles of the rider rather than for impact protection, but that if they were struck by a smallish branch the handlebar would not necessarily twist and cause the rider to come off the motorbike. Mr Keramidas said that the hand guard was made from the same material as the guard to the rear of the motorbike on the right side which showed scrapes without any significant deformation, and he noted that the rear guard had popped off the clips which held it in place.
- Both witnesses said that the photographs did not reveal any discernible evidence that could be contributed to a collision with a car; however, both accepted the possibility that there was a paint transfer that had been removed when the motorbike scraped on the road, Mr Keramidas adding that that was very unlikely. On the other hand, both witnesses thought that the height of the handlebars was around 1.1 – 1.2 metres and Mr Byrnes noted that neither had discussed the possibility that they had hit the window of the oncoming car which would have little or no transfer on the motorbike.
- Both parties also qualified experts in biomechanics, Dr Gibson by the plaintiff and Mr Bailey for the defendant, to address the question whether the injuries to ths plaintiff’s right foot were consistent with the accident as described by the plaintiff. Ultimately, these experts agreed that the injuries to the plaintiff’s right foot were consistent with a vertical, that is, upward and downward force and so not consistent with a side-swipe collision. They also agreed that, if the oncoming vehicle struck the right foot. it would also have had to strike other parts on the right side of the plaintiffs body such as the knee and tibia. However, they agreed that this type of compression force was consistent with the right foot striking the road and so did not exclude the possibility of the plaintiff losing control of the motorcycle after an impact.
- Mr Bailey, who analysed the mechanics of the accident in order to assess the biomechanics, could not exclude the possibility that the motorbike was close to upright and that there could have been a glancing blow from the oncoming vehicle resulting in a loss of control of the motorbike and it falling onto its right side.
- The plaintiff must establish on the balance of probabilities that his injuries were caused by the negligence of another driver. That means that the Court must feel an actual persuasion of the occurrence of the facts that warrant a conclusion in favour of the plaintiff. That is, a conclusion on the question of what occurred cannot be reached as a result of a mere mechanical comparison of probabilities independently of any belief in its reality: Briginshaw v Briginshaw (1938) 60 CLR 336, 361-363 (Dixon J). That does not mean that expert evidence of the probability of an event is not to be taken into account; however, improbable events do occur.
- The starting point of the analysis is the undisputed facts established on objective evidence. First, the photographs of the motorcycle revealed a level and locality of damage that was consistent with it sliding a short distance on its right side on a road and then coming to rest under a guardrail. Secondly, the plaintiff suffered injuries consistent with losing control of the motorcycle and falling from it onto the road. Thirdly, the hospital and ambulance records show that the plaintiff was admitted to hospital on 18 January 2015 and told the medical staff that he had been clipped by a car and crashed into a guardrail. I am satisfied on that evidence that the plaintiff was injured in a motorcycle accident on 18 January 2015 and told the medical staff that he had been clipped by a car and crashed.
- Next, there are the unchallenged aspects of the plaintiff’s evidence which I accept. First, the accident occurred while the plaintiff was travelling south on Douglas Park Road on the downhill part leading to the causeway crossing. Secondly, the plaintiff was travelling at around 50 km/hr.
- The first critical point to determine is where on the road the accident occurred. There was little dispute about this. While the plaintiff’s evidence was that it occurred as he entered a tight right hand bend, the photographic evidence shows that there was no guardrail at that point in the road and that the guardrail was after the bend and towards a left hand bend in the road. I am satisfied on the basis of the expert evidence that the accident did not occur as the plaintiff entered the bend. If it had, both he and the motorbike would have gone off the road before the guardrail. Given the ultimate resting place of the motorbike and the speed at which the plaintiff was travelling, I am satisfied that the plaintiff lost control of the motorbike in the area marked red in the photograph prepared by Mr Byrnes.
- Although this conclusion is contrary to the plaintiff’s evidence. it does not lead me to reject the plaintiff as a credible witness. First, as I have said, his manner of giving evidence impressed me as honest. Secondly, although the plaintiff knew the road well, the accident took place at considerable speed (his speed of 50 km/hr and, assuming for present purposes that there was an oncoming vehicle, most likely a similar speed for that car). Thirdly, he lost consciousness and was concussed as a result of the accident. Fourthly, while the plaintiff told the police several days later that the accident occurred when he “came to a right hard tight corner bend” and “a white car came around the corner”, Mr Byrne’s evidence was that the plaintiff told him that the accident occurred in about the red zone. I am satisfied that the plaintiff’s memory was inaccurate rather than false.
- The second, and most critical point, is whether the plaintiff lost control of his motorcycle because it was hit by an oncoming car. The evidence supporting this, as I have found, is the plaintiff told medical staff that same day that he was clipped by a car. The plaintiff said in evidence that he was hit by a white sedan. The plaintiff’s father-in-law said that the plaintiff told him that he had been hit by a white car. I am satisfied that the plaintiff was telling the truth when he told the medical staff that he was clipped by a car. He had been in a serious accident and was in considerable pain. I do not accept that he told the staff this because he knew that he could obtain compensation for hi injuries if they were caused by the negligence of another driver even if he could only identify the other vehicle by its colour and chassis type. It may be well known that you can sue another driver for damages but there is nothing to support
- I also accept the evidence of Mr Cathrada as honest evidence. Apart from the qualification of the colour of the car, it was consistent with what the plaintiff told the medical staff. The fact that Mr Cathrada could not remember anything else said by the plaintiff either on the day or in that year; that is not surprising. It is common to have a clear recollection of events surrounding an unusual and serious event such as a motor vehicle accident. However, given that the plaintiff did not tell the medical staff the colour of the car I am not persuaded that he told Mr Cathrada. It is more likely that Mr Cathrada heard that description later and his memory of the day of the accident was inaccurate.
- There are a number of matters in the evidence that point away from accepting the involvement of a car in the accident. First, the plaintiff was travelling at faster than the critical speed which might suggest that it was speed rather than a car that caused the loss of control. Secondly, there was no evidence in the photographs of the motorbike, such as paint transfer, to support the involvement of a white car. Thirdly, on the evidence of Mr Keramidas, more than the slightest touch of the handlebars by a car would have caused the motorbike to collapse onto its left but there were no marks on the motorbike consistent with that. Fourthly, on the basis that the accident occurred after the corner, there would have been ample time for the plaintiff to see an oncoming car and avoid a collision. Fifthly, and similarly, the oncoming car would have been unlikely to have been on the wrong side of the road in the red zone.
- Even taking into account all of these matters, I am persuaded that the plaintiffs motorcycle was, as he told the medical staff, “clipped” by an oncoming car. Given that the hand guards were flexible that meant that the contact was very slight and yet still caused a loss of control of the motorcycle and an eventual collapse onto its right side and the dislodgment of the plaintiff. That is consistent with the injury to his right foot and the markings on the motorbike. That lack of white paint on the photographs does not undermine this conclusion. First, the handlebars were between 1.1 and 1.2 metres from the ground and it is likely that the plaintiff was at least returning to an upright position after the bend. At that height the handlebars could either have touched the rear view mirror or the side window of the oncoming car without any paint transfer or, if they touched a white part of the car, the paint could have come off as the guard scraped along the road. Finally, the expert evidence was that it was entirely possible for the plaintiff to safely negotiate the bend at 50 km/hr and his ability to do so was underlined by his own evidence that he had done so many times before.
- I accept the plaintiff’s evidence that the oncoming car was on his side of the road and conclude from that that the driver of that car failed to keep a proper lookout, failed to drive in a safe mann r and failed to keep to the left side of the road. The driver failed to exercise reasonable care and was negligent. That negligence caused the plaintiff to lose control of his motorcycle and caused the injuries suffered by him.
- However, as the plaintiff had gone through the bend when he collided with the oncoming car, he was in a position to see the oncoming car and to take evasive action. His failure to take evasive action meant that he failed to keep a proper lookout and so was negligent. His own negligence contributed to his injuries, but, as he was on the correct side of the road and travelling at a safe speed, his contr:bt:tion to the accident was relatively minor, I assess the contribution of the plaintiffs negligence towards his injuries as 10%.
- The parties agreed that the damages suffered by the plaintiff were $650,000. Reduced by 10%, the damages to which the plaintiff is entitled are $585,000.
- For those reasons, there will be a judgment for the plaintiff in the sum of $585,000. The defendant is to pay 90% of the plaintiff’s costs as assessed or agreed.
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