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. Was There a White Vehicle Present ? 13 Mr Nock did not abandon the ground that there was no white vehicle, but he recognised the substantial difficulties confronting it. 14 His Honour's finding that there was a white vehicle present is, in my opinion, impervious to successful appellate attack for the following reasons:- (a) Both Mr Douglas and the respondent said that such a vehicle was present and his Honour accepted that they were honest witnesses, who were not attempting to deceive the Court in saying that there was when, in fact, there was not: RAB p 50. (b) His Honour's view in this regard was reinforced by the potent answer the respondent gave to the direct question that there was no such vehicle and that he had "reconstructed" in effect what had occurred. His Honour set forth the question and answer verbatim: RAB p 52. (c) It was never put to Mr Douglas that there was no such vehicle. (d) There was no defence that Mr Douglas and the respondent had conspired to defraud the Nominal Defendant. (e) Mr Pilley did not recall seeing the vehicle pass him, but that is hardly surprising. He was looking ahead towards the accident and, in any event, the presence of white four wheel drive utilities on country roads is so common as not to call for any particular notice. (f) If, as was inherent in the appellant's stance on this issue at trial, there was a conspiracy between the respondent and Mr Douglas, notwithstanding it was never pleaded, it is difficult to understand why Mr Pilley, who was a friend of the respondent and Mr Douglas, would not also have asserted the existence of the white vehicle. (g) As a matter of probability, the respondent and Mr Douglas would not have left the sealed surface without good reason. To do so was flirting with the most obvious danger. As I have said, they were proceeding at a reasonable speed in the circumstances and there was no evidence that either lost control of his motor cycle before leaving the sealed surface. The only credible reason for doing so was that they were forced to do so to avoid the danger presented by the white vehicle. (h) Mr Pilley was the first person to reach the respondent after the accident, whereupon the respondent said to him:- "That f...ing idiot, that f...ing idiot, nearly hit Chalkie". This was obviously a reference to the driver of the white vehicle, which had passed Mr Douglas' motor cycle. His Honour observed, RAB p 50:- "... it would be difficult to maintain that the white utility was a recent invention on the part of the plaintiff when he made such a forthright statement to Mr Pilley when Mr Pilley arrived." Further, it is totally improbable that the respondent was fabricating a case against the appellant moments after the accident as he lay seriously injured beside the road. (i) His Honour continued:- "I consider it difficult to suggest that there was collusion on the part of Mr Douglas and the plaintiff when the presence of such a vehicle was mentioned to Mr Pilley in the first words by the plaintiff after the accident and apparently before even Mr Douglas arrived at the scene." Was the Driver of the White Vehicle Guilty of Negligence ? 15 Once it was established that there was a white vehicle, the finding that the driver was guilty of negligence could, in my opinion, only be avoided, if his Honour was not satisfied that it was moving from its correct to its incorrect side of the road, over double unbroken white lines, thus forcing the respondent from the sealed surface to avoid a collision. The respondent gave evidence in chief, BAB 17, that when the white vehicle came over the hill it was partly on his side of the road and was coming further towards him. He said, BAB 18, that if he had continued on his path and the white vehicle had continued on its path it would have hit his motor cycle. Accordingly, he rode off "to the lefthand side of the road", which placed him on freshly graded gravel. The respondent said that he believed the driver of the white vehicle was a male and he was positive he was wearing a baseball type cap. He continued that he thought the driver was having difficulty keeping the white vehicle on the correct side of the road and seemed to be struggling with the wheel and that the white vehicle "was skipping and he was trying to get it back to his side of the road". 16 The respondent marked two photographs being, as I understand it, the bottom photograph on p 3 and the top photograph on p 4 of Blue AB Vol 1 to show the position of the white vehicle when he first saw it. He agreed that his marking showed the white vehicle was "just clipping the centre line" and added "coming over the centre line yeah on the centre line". He confirmed that that was the position when he first saw the white vehicle at which time Mr Douglas would have been almost parallel with it. He added that the white vehicle nearly hit Mr Douglas. This would account for his remark to Mr Pilley about its nearly hitting "Chalkie". 17 The essential attack made on the respondent's evidence was that he was unable to identify, with any precision, where the white vehicle was on the roadway and that his evidence, in that regard, was vague and imprecise. In most accidents of this type with fast moving vehicles that will be the situation. It is impossible to be precise as to speeds, positions, distances and times. It is unrealistic to seek to reconstruct what happened on the basis that exactitude is possible or that the views and impressions of those involved, who of necessity are in different positions, will coincide. It was further submitted that if the respondent's evidence was correct the collision would have been inevitable or the respondent would have driven off the road further to the east, by some 70 metres, than he did. This submission depends on elements of precision not possible in such circumstances. 18 Mr Nock placed considerable reliance on par 23 of Exhibit 2: Blue AB 537-538. In that statement the respondent gave a detailed account of what he saw, including that he remembered thinking that the white vehicle would collide with the motor cycle being ridden by Mr Douglas. He saw the white vehicle "skip to the left and the righthand side of the Holden just missed Ron and his bike". He said:- "I then realised the vehicle was heading straight for me and I realised we would collide, the vehicle and I. At the time the vehicle almost collided with Ron almost half of the vehicle was on my side, that is the Mudgee bound side of the carriageway, and in that area there are double unbroken separation lines in the centre of the roadway. From that time on I could not say how much of the vehicle was still on the incorrect side of the carriageway as he passed by me, as I was focussing more on keeping control of my bike, but I can say the driver of the vehicle still appeared to be struggling to control the vehicle as he approached me, and I have not (sic) doubt at all that if I had not taken evasive action the front driver's side of the vehicle would have collided with me and my cycle, on my side of the Mudgee bound side of the double unbroken separation lines." 19 This statement was given on 20 August 1998 in the presence of the respondent's solicitor. 20 It was consistent with what appeared in a motor accident report, Exhibit 1, which commenced at Blue AB 515. At 517 the respondent said that the white vehicle appeared to be coming across the road:- "... in front of us. Ron Douglas just managed to avoid the vehicle and I left the side of the road ..." 21 Mr Nock contrasted this evidence with that of Mr Douglas in Exhibits N and O. Exhibit N, Blue AB 21, was the statement Mr Douglas made to the police on 29 September 1997. In par 3 of that statement there is set out at least portion of a statement Mr Douglas made to Sergeant Marr on 2 August 1997, in which he said:- "At about 4.45 I was riding my bike ... west to Mudgee. Wayne was in the middle, I was in front about fifty yards. As I came to the top of the hill I saw a white ute possibly a 4x4. He was on the right side of the road, but he seemed to be veering to my side. I went in the dirt on the lefthand side of the road and I looked back and saw Wayne and debris flying and then I braked and went back to where Wayne was lying." 22 Mr Douglas was asked what he meant when he said that the white vehicle was on the right side of the road in question 7 and he replied:- "The 4x4 was on the double lines, it seemed to be going fast and it looked like he was going to skip across on to our side of the road. I left the road into the dirt for about 50 metres. I looked in the rear vision mirror and I saw a black object flying through the air. I braked when I got back on to the tar and went around a small corner and turned around and came back. Wayne was lying on the ground. I was expecting to see the 4x4 but it wasn't there only Wayne and Dave were there." 23 Mr Douglas also made a statement to an insurance investigator in which he said that he perused a copy of his police statement to assist his recollection. He set out what occurred prior to the events giving rise to the accident and he confirmed his and the respondent's position on the road. In pars 18 and 19 he said:- "18. I slowed down to about 80 km/h by just taking my hand off the throttle a bit. I did not apply my brakes at any time. Just as I came over the crest and was almost level with the Tongbong Road I recall seeing a white utility travelling east towards me. When I first saw it the utility was about 10 metres away and in its correct lane. I would say that its driver's side was about one metre north of the centre line. It seemed to be travelling really fast, faster than the speed limit for the area. How much faster I could not say. 19. When I first saw the utility it was already skipping across its lane from my right to my left, in a southerly direction. It was moving closer to the centre line. By skipping I mean it was like the driver was taking the corner too fast. You get that effect where the vehicle almost bounces across the road as it takes the corner with the tyres struggling to hold on to the bitumen surface." 24 In par 20 he continued:- "20. It all happened very quickly and I saw the utility quickly move one metre from my right to left so that its driver's side wheels were actually on the centre line. I then just concentrated on what I was going to do and where I was headed. I felt like the ute was going to come across the centre line into my lane and hit me so I tried to avoid a collision and moved to my left. At no time did I actually see the ute cross the centre line or any portion come over its incorrect side of the road into my lane." 25 Mr Douglas was called in the respondent's case and, before he gave oral evidence, Exhibits N and O were tendered in that case without objection. He was asked, in chief, no questions about the accident. In cross-examination he was asked about some matters in those statements, but not about what he said in relation to the position of the white vehicle. 26 It was Mr Nock's submission that the learned trial Judge "must accept in reaching any conclusion as to the position of a white vehicle" what Mr Douglas said, but that his Honour did not consider that evidence at all, notwithstanding its importance in finding that the white vehicle crossed the centre line. Mr Nock submitted that Mr Douglas failed to corroborate the respondent's version of events. 27 In my opinion it is not correct to say that Mr Douglas' evidence did not corroborate that of the respondent. In Exhibit N, the passage I have quoted made it clear that the white vehicle seemed to be veering towards Mr Douglas' side. In Exhibit O he said that it was "skipping across its lane from my right to my left ...". Mr Douglas also confirmed that the white vehicle moved from his right to his left. 28 It is incorrect, as was submitted, to say that his Honour did not consider the evidence of Mr Douglas. He referred to that evidence in the context as to whether there was a white vehicle present and, RAB 50, to Mr Douglas' statement that the acts of the driver of the vehicle caused him to leave the bitumen portion of the road and:- "He said that the vehicle was veering or appeared to be veering to his side. He said it appeared to him to be going fast and it looked like he was going to skip across on to his side of the roadway." His Honour made an express finding: RAB 51:- "... that when Mr Douglas came over the crest of the rise the white utility was on its side of the road for vehicles travelling east but close to, if not on the double unbroken centre lines, and travelling at a fast speed and veering to the right. At the speed at which the utility was travelling I consider that the white utility would have continued on its path towards the right of the roadway and towards the centre of the roadway on the bend or curve, which so far as the driver of the utility was concerned, was a lefthand bend." 29 The point his Honour was making, in dealing with this evidence, was that he accepted the evidence of Mr Douglas that led him to the conclusion, which in my opinion was clearly open, that once the white utility passed Mr Douglas it would continue on to its incorrect side of the road thereby causing the difficulties to the respondent, which it did. 30 In my opinion, the evidence, as his Honour pointed out, was that everything happened "very quickly" and as I have said it is somewhat unrealistic, although perhaps forensically understandable, to try to recreate with accuracy the developing dynamic situation by reference to distances, speeds, observations from different positions and times in respect of an event which happened within seconds. The simple facts of this aspect of the matter, which satisfy me that his Honour's findings are not vitiated by error, are that he accepted the evidence of Mr Douglas that the white utility was moving from its left to its right, (which would be consistent with it making a lefthand turn at speed), and the evidence of the respondent that by the time it was approaching his motor cycle that movement was continuing and took it over the centre line on the roadway. I find nothing inherently improbable with that position once those facts were established. They were established to his Honour's satisfaction on the basis of evidence from witnesses whom he believed. They were not, in my opinion, inconsistent with prior statements and were well open to his Honour. 31 The next attack Mr Nock made on his Honour's reasoning related to the position of tyre marks showing where the respondent's motor cycle left the bitumen surface. At BAB 22, the respondent was shown Exhibit C, which was a photograph, and marked where he thought he left the bitumen surface. This was to the east of the Tongbong Road eastern boundary. The respondent denied that he left the bitumen surface adjacent to that boundary and/or at a point near where Mr Douglas did. 32 The appellant's submission was that the evidence as to where the respondent's motor cycle left the roadway was critical to its position in relation to the position of the white utility, because if it had left the sealed surface at that point either the white vehicle would not have been on its wrong side of the road, or, if it was, it would have collided with the respondent's motor cycle. I have referred to the problems of trying to recreate precisely how events occurred. Suffice to say that there was ample evidence that the movement across the road indicated a situation of danger to both Mr Douglas and the respondent, which caused them to veer off it. Mr Nock suggested that Mr Douglas did so because, independently of the white vehicle, he lost control of his motor cycle. This was not put to Mr Douglas and should be rejected. The complaint was that his Honour failed to consider this evidence at all, save at RAB 51. 33 His Honour had referred to the evidence of Mr Douglas that he was a little back (east) from Tongbong Road when he saw the white utility was about 10 to 15 metres away from him. He referred to Mr Douglas' evidence that it was just before the Tongbong Road intersection that he rode his motor cycle off the bitumen and on to the gravel shoulder. He noted Mr Douglas' denial that he might have seen the motor vehicle prior to the 10 to 15 metres which he nominated, and continued:- "The evidence of Mr Douglas as to the tyre marks he observed and going to the windrow is, I consider, of little assistance in determining the precise location where the plaintiff's cycle left the bitumen portion of the roadway. However, the evidence of Mr Pilley and Sergeant Marr is corroborative of the evidence of Mr Douglas that he rode his cycle off the bitumen on to the gravel just before the Tongbong Road intersection." 34 The appellant's complaint is that the mark on Exhibit C is short, (east), of the Tongbong Road boundary, leading to the consequences to which I have referred. 35 The appellant called Sergeant Marr and Mr Pilley. 36 Sergeant Marr arrived at the scene of the accident. The respondent was still there and Sergeant Marr, in company with Mr Douglas, walked east along the southern shoulder of the Lue Road from where the respondent was lying. Mr Douglas pointed out to Sergeant Marr tyre marks. 37 He was referred to a sketch in his notebook in which he recorded a statement of Mr Douglas: Blue AB 20, which was essentially consistent with other evidence Mr Douglas gave about the white utility being on the correct side of the road but moving towards the incorrect side of the road. The notebook contains a diagram showing, at its eastern extremity Tongbong Road. He said that the figures 6 and 9, which referred to inches, were the distance "between the two tyre tracks that left the roadway". There were two lines going past and to the west of Tongbong Road and he said that the one closest to the Lue Road stopped some twelve metres from a windrow caused by graders, and the other, more to the south, finished approximately thirty metres from the windrow. He said there were two tracks on the windrow, and that the wavy line was the one created by the respondent's motor cycle because, in his opinion, it was consistent with a motor cycle being on its side and spinning and moving about on the gravel verge. 38 Sergeant Marr's attention was drawn to the fact that both wheel tracks appeared to commence at the eastern side of Tongbong Road. It appears that the wheel track, which he asserted was created by the respondent's motor cycle, started further to the east than those created by Mr Douglas' motor cycle, and he said that he did not actually measure how far to the east of Tongbong Road the tyre marks commenced, but that by reference to a large strainer post, which he supposed to be two to two and a half metres from the actual Tongbong Road intersection, that was the position. 39 Sergeant Marr was not cross-examined about these observations. 40 Mr Pilley was also called by the appellant. He had made statements on 29 September 1997 and 3 April 1998. They were respectively Exhibits Q1 and Q2. In par 20 of Exhibit Q2, Blue AB 59, Mr Pilley said that he saw some tyre marks, which appeared to be fresh and to have been made by the respondent's and Mr Douglas' motor cycles. He identified those made by the latter and said that that tyre mark left the roadway just to the western side of Tongbong Road. In par 21 he said the second tyre mark left the roadway "just before the first tyre mark (east)". He continued:- "It was almost level with the western side of Tongbong Road and appeared to have been caused by Wayne's bike." 41 In Exhibit Q1 he made no reference to tyre marks. Mr Pilley was not cross-examined. 42 Mr Nock also relied on the evidence of the respondent. At BAB 95 he was shown Exhibit C and asked to confirm that he had marked where he said he left the roadway to which he replied:- "A. As far I can tell that's correct." 43 Subsequently, on the same page, his Honour asked the respondent whether the red stroke indicated the direction of travel and was "very close to where the plaintiff left the bitumen" to which, it appears, the answer, perhaps by Mr Bartley, was:- "That would be right." 44 Mr Nock then asked the respondent whether the stroke showed the direction in which his motor cycle was travelling and he said:- "A. I believe so, yes, very close." 45 He was cross-examined as to the distance he thought the mark on Exhibit C was from Tongbong Road and he said he had no idea. As the cross-examination continued it appeared that the point sought to be made was that the respondent had 70 to 80 metres from the position marked on Exhibit C "to travel up the shoulder" and that that "gave him plenty of time to bring the bike back on to the roadway", with which latter proposition he disagreed vigorously: BAB 99. The respondent also said he had no idea where Mr Douglas left the roadway. 46 Mr Nock submitted that as a matter of fairness his Honour had to consider the effect of the evidence of the tyre tracks upon the respondent's factual evidence and upon whether he should be believed in the light of the appellant's attack upon his having reconstructed the accident. 47 In my opinion the learned trial Judge did not overlook this evidence. He considered that it afforded little assistance in determining the "precise location" where the respondent's motor cycle left the bitumen. There was no need for his Honour to find the "precise location". He was satisfied, and found, that the white utility was moving from its correct to its incorrect side of the road and travelling at a fast speed, such that, in his opinion, it would have continued on its path towards the right or incorrect side of the roadway. After further considering the evidence, his Honour was satisfied, and in my opinion there was ample evidence for him to be so satisfied, that when the respondent first saw the white utility, it was on or just over the white centre double lines and appeared to be moving further to the right. He accepted, RAB 53, that the respondent "felt threatened and, not unreasonably, drove his cycle off the bitumen on to the gravel". 48 Mr Nock relied on the report of Rodney Vaughan & Associates Pty Limited, a company being a consultant in vehicle engineering and traffic safety. That report, which was prepared by Mr Vaughan, is, obviously enough, based on a number of factual assumptions in addition to the observations made by him. Apart from dealing with matters, which one might think were strictly within the province of the report, it seeks to argue matters essentially for the trial Judge. 49 Mr Vaughan opined that the respondent misjudged the curve and crest combination and thus left the sealed pavement after the curve. He noted there was tyre mark evidence of numerous vehicles having done so as they completed the curve. This theory, on the facts of this case, cannot be substantiated. 50 Mr Vaughan, in his oral evidence in chief, expressed the view that on the various assumptions he was asked to make there would not have been a chance of avoiding a collision, if otherwise there was going to be one. 51 However, the point was not necessarily that there was going to be a collision, but rather than the actions of the driver of the white utility led the respondent to the view that there may well be a collision if the respondent did not take evasive action. It would have been foolhardy in the extreme for him, in those circumstances, not to have taken some such action and it was the necessity to do so, which caused him to veer off the roadway and to fall from his motor cycle. 52 His Honour considered the "objective analysis", for which the appellant contended, commencing at RAB 43. He noted its starting point was the respondent's estimate that he was approximately 70 metres from the white utility when he first saw it. He turned to Mr Vaughan's evidence as to reaction time, which he said, at the most, on the part of the respondent would have been one and a half seconds, and that if the respondent's motor cycle was travelling at about 80 kilometres per hour and the white utility was travelling at say 100 kilometres per hour, the accident would have happened by the time the plaintiff had reacted. At RAB 48 his Honour repeated this submission and, having dealt with the question as to whether the white utility was there at all, turned to the question of negligence. The accident did not occur, but that does not mean that the analysis put forward by Mr Vaughan must be accepted. It merely means that in the circumstances which obtained, notwithstanding that the white utility was on the wrong side of the road, the evasive action taken by the respondent was sufficient to prevent the collision. The submission that his Honour did not properly analyse the evidence and give reasons as to why the respondent's version was accepted is simply not correct. 53 Finally it was submitted that his Honour had the statements the respondent made to his solicitor, Sergeant Marr and the insurance investigator, which were Exhibits 2 and 3. I have referred to these and, for the reasons I have given, I do not consider that there was any need for his Honour to refer back to them because I do not consider, on a proper construction, that there was the inconsistency for which the appellant contents. Contributory Negligence . 54 His Honour accepted the respondent's evidence to the effect that he was concentrating on the actions of Mr Douglas and that when Mr Douglas "stood the cycle up straight" his attention was totally focussed on him "and may well have caused him not to see the white vehicle before he did". However, this line of reasoning, if I may say so with respect, tends to beg the question. Assuming that the respondent had seen the white utility earlier he may have been under the impression that it was on its correct side of the road; he may have been under the impression that it was moving from its correct side of the road to its incorrect side of the road; or he may have been under the impression that there was then no danger. The only circumstance in which the respondent could have been guilty of contributory negligence was not realising at some earlier point of time that the white utility was going to cross to the wrong side of the road. The onus was on the appellant to prove that and also to prove that had the respondent appreciated that that may happen he could have done something, other than veer off the road on to the uncertain and unstable shoulder. In my opinion, there was no basis on which the appellant established contributory negligence, the onus being on him, and I consider that this was a circumstance in which the respondent was forced to respond to a situation in the agony of the moment. The Failure to Have a View . 55 There was discussion as to whether there should be a view, which Mr Nock sought, at BAB 158-159. His Honour said at p 158 that he did not think that would be of much assistance in all the circumstances of the case. At p 159 Mr Nock is recorded as saying:- "Yes that's right your Honour, yes but your Honour, I understand what your Honour's said, the defendant would suggest that a view may be helpful." 56 He concluded by saying that he had made the application "and I've said it's a matter for your Honour": (my emphasis). His Honour said he would re-consider whether he would have a view and, at BAB 170 said he had thought about the matter and that he did not propose to have one. 57 In the light of the way the matter was put and the cases were formulated I do not consider that it can be asserted that his Honour erred in his discretion not to have a view: R v Delon (1992) 29 NSWLR 29. 58 In any event, whilst the application for a view was made, his Honour was not requested to give reasons for not holding one. He did say in passing that "any view would only be as to the assistance of the Court and not as evidence": BAB170P. This was incorrect: Evidence Act 1995 s 54. However, the conclusion at which his Honour arrived has not been shown to be wrong, since the appellant failed to demonstrate how a view would have further assisted in the resolution of the case. Damages . 59 His Honour allowed the respondent $49,110 for loss of earnings from a motor cycle business. His Honour found, which was not in issue, that the respondent was in partnership with others and had commenced a business known as Classic Motor Cycle Tours, which was unusual in that the respondent and his partners took tourists to vineyards and other tourist interest spots in the Mudgee area. He found that as a result of the injuries the respondent was unable to continue the business and his partners ceased to do so. He continued:- "However, on the evidence before the Court there is no doubt that the business was operating and the parties were advertising for customers and, on the evidence, had the accident not occurred, the plaintiff would have continued in the operation of that business." 60 The respondent's claim was $200 per week for past loss of profits and $350 per week for future loss of profits. His Honour accepted the appellant's submission that the respondent could not sustain a claim of that nature, and added that on the evidence:- "... I would consider that the plaintiff may have been able to have profit of $120 per week and I allow the plaintiff such a sum for past for 148 weeks which equals $17,760." 61 The evidence before his Honour was that the partnership charge out rate was $60 per hour; that the work had to fit in with that done at the coal mines where the respondent performed his normal work; and that there was a hope that overtime would be reduced in the coal mines. The respondent was asked how he planned for the business to fit in with the work in the coal mines to which he replied, BAB 61:- "A. Well hopefully we wouldn't have had to do the overtime so we could have just concentrated a bit more on that you know. It was still, it was just the thing that we were bloody just getting going you know like it was going to pay for our bikes, we knew that for a fact, we had worked that out and ..." 62 There is no doubt the business had started. The partnership income tax return for the financial year ended 30 June 1997 showed a total business income of $1,198 and total expenses of $15,256. Even if one took from those expenses depreciation expenses of $8,200 the expenses amounted to $7,056, which created a loss of $5,858. 63 The respondent agreed, obviously enough, that the business would have to improve markedly before it become profitable. He also said, when confronted with the loss situation:- "We were setting up a business": BAB 130. 64 In my opinion there was no evidence on the basis of which his Honour could have concluded that the respondent would have made a profit of $120 per week, which, on the way in which the income tax returns were structured, would have required the business to have been making a profit of $240 per week. Accordingly, I consider that his Honour was in error in awarding the sum for past loss of $17,760. 65 So far as the future was concerned, his Honour, correctly in my respectful opinion, thought it necessary to consider the chance "that the plaintiff would continue to make a profit from the enterprise". That would have been a relevant consideration if in act any profit was being made from the enterprise which, on the evidence, it was not. His Honour then took into account vicissitudes which could affect that profit and decided that the profit figure of $120 per week for fourteen years should be applied. As I am of the view that there was no evidence to support that figure, the amount his Honour allowed for the future cannot be supported. In the result the total of $49,510 has not been proved by the respondent. Loss of Capacity as Shearer from the Age of 60 to 65 Years . 66 In relation to the loss of capacity as a shearer his Honour considered that only a cushion should be allowed. He referred to evidence of the respondent's interest in shearing, but ranged this evidence against the medical evidence of his degenerative changes in the neck. He considered that whether the plaintiff would have been able to carry out this activity between the ages of 60 and 65 was very debatable. Nonetheless he allowed $20,000 for any loss of capacity as a shearer and $1,000 for loss of superannuation benefits. 67 The respondent's evidence was that he thought that if he retired he could still go out and shear 100 sheep a day, as his uncle had done. However, the problem so far as this quantification of damage was concerned was that there was no evidence as to the earnings of a shearer between the ages of 60 and 65 nor of the availability of work for a person of that age in that industry. In my respectful opinion the respondent did not establish his entitlement to these damages. Loss of Future Earning Capacity . 68 None-the-less, the respondent's work ethic was such that I am satisfied he would have worked from 60 to 65 years. In my opinion his loss of earning capacity to 60 years was adequately accommodated, and, for the further period I would allow a buffer figure of $10,000. Thus the verdict is reduced by $70,510 to $1,404,207 to which $10,000 is added to provide a verdict of $1,414,207. Costs . 69 The principal issues raised in this appeal are concerned with questions of liability on all of which the respondent has failed. The respondent has had a very modest success on the question of damages. The time taken in arguing the damages' issues was very small in comparison with the time taken in arguing the appeal. Notwithstanding that the appellant had that measure of success on the appeal, I consider that the respondent's success was such that the proper order for costs, in the exercise of the Court's discretion, is that the appellant pay the respondent's costs both of the hearing and of the appeal. Orders Proposed . 70 The orders I propose are :- (a) Appeal allowed. (b) Set aside the verdict for the respondent in the sum of $1,474,717. (c) In lieu of the sum of $1,474,717 verdict for the respondent in the sum of $1,414,207. (d) The appellant to pay the respondent's costs of the proceedings at first instance and on appeal. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.