The Nominal Defendant v Williams [2001] NSWCA 154

New South Wales Court of Appeal

CITATION : The Nominal Defendant v Williams [2001] NSWCA 154 revised - 4/06/2001 FILE NUMBER(S) : CA 40491/00 HEARING DATE(S) : 18 May 2001 JUDGMENT DATE : 29 May 2001

PARTIES : The Nominal Defendant v Wayne James Williams JUDGMENT OF : Heydon JA at 1; Ipp AJA at 2; Rolfe AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 2/99 FILE NUMBER(S) : LOWER COURT His Honour Judge Puckeridge JUDICIAL OFFICER :

COUNSEL : Appellant - D.G. Nock SC / G.M. Gregg Respondent - A.J. Bartley SC / S.J. Longhurst SOLICITORS : Appellant - Ferguson Holz Respondent - Flynn Conn & Associates CATCHWORDS : Liability - motor cycle and unidentified vehicle - whether there was another vehicle and whether it was the cause of the accident - whether there should have been a view of the accident site. LEGISLATION CITED : Evidence Act 1995 CASES CITED: R v Delon (1992) 29 NSWLR 29 DECISION : Appeal allowed - see par 70.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40491/00 DC 2/99

HEYDON JA IPP AJA ROLFE AJA

Tuesday, 29 May 2001

THE NOMINAL DEFENDANT v WILLIAMS JUDGMENT

1 HEYDON JA: I agree with Rolfe AJA. 2 IPP AJA: I agree with Rolfe AJA. 3 ROLFE AJA: Introduction .

The plaintiff/respondent, Mr Wayne James Williams, for whom Mr A.J. Bartley of Senior Counsel and Mr S.J. Longhurst of Counsel appeared, was born on 28 May 1953 at Mudgee in Central Western New South Wales. He attended school there and obtained his School Certificate. Thereafter, he obtained employment in shearing sheds, becoming a shearer when he was about twenty years of age. He also engaged in farm, retailing and earthmoving work until 1998, when he commenced employment at the Ulan Open Cut Coal Mine as a plant operator. In 1993, because of a down sizing at that mine, he moved to one at Wallerawang, after which he returned to the Ulan Coal Mine several weeks before Sunday, 2 August 1997. Prior to this he had started a tourist type motor cycle business to which I shall refer in more detail later. I have set forth his work history in sufficient detail to show that he was an industrious person. During all these periods his home was in Mudgee, although it was necessary for him to be away from it, from time to time, in pursuing his occupations. He is married and has two children. 4 The respondent was a keen and experienced motor cycle rider, who owned a Harley Davidson, and, on 2 August 1997, he and two friends, Mr Ronald Douglas, whose nickname is "Chalkie", and Mr David Pilley, each of whom also owned Harley Davidsons, decided to go for a ride from Mudgee to Rylstone and then back to Mudgee. This was uneventful until they were returning to Mudgee along a sealed road known as the Lue Road. It allowed for one trafficable lane in each direction and, at the relevant point, it ran basically in an east/west direction and the lanes were divided by double unbroken white lines. The shoulders of the road were gravel. 5 The respondent was not as familiar with this road approaching Mudgee, as he was when travelling on it from Mudgee to Lue. Shortly before an accident, to which I shall refer in more detail shortly, occurred in which the respondent suffered severe personal injuries, he and his two friends were proceeding in a westerly direction along the road towards Mudgee. Mr Douglas, who was apparently familiar with the road travelling in that direction, was in the lead tracking on a line where the offside wheels of a motor vehicle proceeding on the correct side in that direction would have been. The respondent was between one and two cricket pitch lengths, as he put it, or about 40 yards, as others put it, behind and travelling on a line where the nearside wheels of such a motor vehicle would have been. There were some two to three feet of sealed road between the wheels of his motor cycle and the edge of the sealed surface. Mr Pilley was about 300 to 400 metres behind the respondent. 6 Lue Road, at this point, ran uphill in its westerly direction for about 400 metres towards a sign for the Tongbong Road, at which point the Lue Road for those travelling west curved somewhat to the right. The motor cycles were travelling at between 80 to 90 kilometres per hour in an area where the speed limit was 100 kilometres per hour. There was no suggestion that they were travelling at an excessive speed in the circumstances or being ridden other than in a responsible manner. 7 The respondent alleged that as Mr Douglas approached the curve he leaned his motor cycle to the right to take the righthand turn and then straightened it up. Very soon thereafter he observed a white Holden four wheel drive utility come over the hill travelling in an easterly direction and that as it did so it moved across the road from its correct to its incorrect side of the road, such that if the respondent had continued on the sealed surface there would have been a collision. To avoid this he veered off the sealed portion on to the gravel shoulder over which he travelled for some distance before losing control when his motor cycle hit some form of embankment or other impediment. The result was that the motor cycle toppled over in consequence of which the respondent suffered very serious personal injuries. 8 The alleged white utility apparently proceeded on its way and neither it nor its driver has ever been identified. 9 The extent and severity of the respondent's injuries, the treatment he has and will have to receive in the future and his present and continuing disabilities are set out in detail in the learned trial Judge's reasons and, as they were not in issue on the appeal, require no repetition. Suffice to say that the parties agreed that there should be included for non-economic loss in any award of damages 85% of a most serious case, ie $232,000. Out-of-pocket and future medication expenses were agreed at $14,938 and $36,619 respectively. The parties also agreed that the respondent, who was aged forty-four years at the date of the accident and forty-six years at the date of trial, would never again be able to engage in gainful employment. The figure for future loss of earning capacity was calculated basically on his having continued to work as a miner until he was sixty years of age, that being the age at which he would have been obliged to retire as a miner. 10 The respondent brought proceedings against the appellant/defendant, the Nominal Defendant, for whom Mr D. Nock of Senior Counsel and Mr G.M. Gregg of Counsel appeared. They were heard in the District Court by his Honour Judge Puckeridge QC, who delivered judgment for the respondent on 2 June 2000 in which he awarded him $1,474,717. This amount included the figures to which I have referred and the usual components of damage for loss consequent upon the effect of the injuries suffered. They are set out in his Honour's reasons: RAB 67, but it is unnecessary to repeat them as the only figures which were the subject of challenge were the awards of $49,510 for loss of earnings from the motor cycle business and $21,000 for "future loss of incapacity as a shearer". The appellant submitted that no award for either of these heads of damage should have been made. The respondent submitted that some amount, additional to his loss of earning capacity as a miner, should have been awarded for such loss, particularly between the age of obligatory retirement and 65 years when, in all probability, he would have retired. 11 At trial, the appellant conceded that the identity of the white vehicle could not be ascertained after due inquiry and search, but submitted that on an objective view of the evidence the Court would not be satisfied:- (a) that there was a white vehicle present; or (b) if there was, that its driver was guilty of negligence, which caused the respondent to leave the sealed surface and thus led to the accident (my emphasis); and (c) the respondent, on the second hypothesis, was guilty of contributory negligence. 12 The trial Judge rejected each of these submissions.