New South Wales Court of Appeal CITATION : (1) Pope v Pantarotto (2) Pope v Pantarotto & Anor (3) The Nominal Defendant v Pantarotto & Anor [2001] NSWCA 378 revised - 5/11/2001 FILE NUMBER(S) : CA (1) 40177/00; (2) CA 40178/00; (3) CA 40385/00 HEARING DATE(S) : 16 July 2001 JUDGMENT DATE : 5 November 2001 Mark Stephen Pope (Appellant) v Mark Pantarotto (Respondent) PARTIES : Mark Stephen Pope (Appellant) v Mark Pantarotto (1 Respondent), the Nominal Defendant (2 Respondent) The Nominal Defendant (Appellant) v Mark Pantarotto (1 Respondent), Mark Stephen Pope (2 Respondent) JUDGMENT OF : Priestley JA at 1; Powell JA at 9; Giles JA at 50 LOWER COURT JURISDICTION : District Court LOWER COURT (1) DC 502/99 (Lismore); FILE NUMBER(S) : (2) (3) DC 94 (Lismore) formerly DC 7005/98 (Sydney) LOWER COURT Mahoney DCJ JUDICIAL OFFICER : R J Burbidge QC/D M Wilson (Mark Stephen Pope) COUNSEL : L King SC (The Nominal Defendant) H Halligan (Mark Pantarotto's Third Party Insurer) M J Joseph SC/R I Goodridge (Mark Pantarotto) Geoff Williams & Associates (Coolangatta) by their Town Agents, Verzace & Co (Mark Stephen Pope) SOLICITORS : Ferguson Holz (The Nominal Defendant) McMahons Lawyers (Brisbane) (Mark Pantarotto's Third Party Insurer) Firths (Mark Pantarotto) CATCHWORDS : NEGLIGENCE - motor vehicle accident - collision between two trail bikes travelling in opposite directions on fire trail in State Forest in Northern New South Wales - one trail bike (Pope) unregistered and uninsured - competing versions as to events leading to collision LEGISLATION CITED : Motor Accident Act 1988 CASES CITED: N/a DECISION : See para 49 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40177/00 CA 40178/00 CA 40385/00 PRIESTLEY JA POWELL JA GILES JA 5 November 2001 Mark Stephen Pope v Mark Pantarotto Mark Stephen Pope v Mark Pantarotto & Anor The Nominal Defendant v Mark Pantarotto & Anor Judgment 1 Priestley JA: The full details of these appeals are set out in the reasons of Powell JA, which I have had the benefit of reading in draft, and with which I generally agree. 2 What appeared to me to be the chief argument for Mr Pope was that it was by a flawed method of deduction that the trial judge had come to the conclusion that Mr Pope's account of the way in which the accident happened was unreliable. This flawed method was said to have been as follows. Mr Pope's account of the accident was that it had happened when the right handlebar of his bike and the right handlebar of Mr Pantarotto's bike had collided forcing his front wheel to turn to the right and almost instantaneously strike the foot peg of Mr Pantorotto's bike. There was evidence before the trial judge of a test that had been made with bikes identical to those in the accident which showed that if the handlebars of the bikes had collided as asserted by Mr Pope, then his front wheel must have struck Mr Pantorotto's bike at least nine inches further towards the rear of the bike than the foot peg. The trial judge accepted the validity of the test which was one of the matters which led him to conclude that the accident had not happened in the way claimed by Mr Pope and was more likely to have happened in the way Mr Pantorotto described it. 3 For Mr Pope it was submitted that there were two flaws in the trial judge's reasoning. The first was that Mr Pope's case did not depend on accepting each detail of his account of the accident. The second was that the evidence derived from the testing of the two bikes was unreliable because the test itself was incapable of producing reliable results. 4 I do not think that the first alleged flaw was made good. This is because I do not think the trial judge was taking the position that his non-acceptance of any single part of Mr Pope's evidence required him to regard it all as unacceptable. Rather, I think the trial judge was focussing on Mr Pope's evidence that the handlebars of the two bikes came into collision as he described, and this seems to me to have been a central part of his case. His own evidence and that of his witnesses was all directed to supporting this particular allegation. In my opinion the trial judge was entitled to test the reliability of the allegation in the way that he did, and his adverse factual conclusion was, in my opinion both properly open to him, and one with which this court has no basis for interfering. 5 A possibly more arguable question seems to me to be whether the contention made for Mr Pope in regard to the second flaw is a sound one. That is, was the test the evidence of which was accepted by the trial judge of sufficient weight to entitle him to accept it and then base his reasoning on it? In the circumstances of the case, I see no reason why the trial judge should not have accepted the evidence. The evidence was of the physical demonstration of what happened when the handlebars of two bikes which were accepted at the trial as being identical for relevant purposes were brought into contact as alleged by Mr Pope. The test does not seem to me to have been a particularly persuasive one, but evidence of it was before the trial judge and no expert or other evidence to the contrary was brought. This left counsel for Mr Pope in the appeal in the position where he had to make assertions of what he said were elementary physics from the bar table to support his contention that it was quite possible for the handlebars to have come together as asserted by Mr Pope and for the front wheel of Mr Pope's bike to have struck the foot peg of the other bike as he claimed. I do not think it is open to this court to accept the assertions of counsel in regard to the physics and mechanics of the matter in order to reach the conclusion that counsel desires. Some evidence, preferably expert, was needed to controvert the evidence flowing from the test made by Mr Pantorotto. 6 I therefore think that the principal argument for Mr Pope in the appeal does not succeed. 7 A further argument was put that the trial judge did not sufficiently explain his reasons for reaching the conclusion that he did. I have already set out what seems to me to have been the thread of the trial judge's thought. It seems to me clear enough that he thought it preferable to take as his starting point a factual question that could be answered by reference to a comparatively objective matter which did not depend upon accepting or rejecting eyewitness accounts of an event that happened suddenly and in a very brief space of time. Whether this method of reasoning was acceptable depended upon whether the evidence of the demonstration was properly available for him to act upon. As already indicated I think that it was. The explanation of his reasoning method, as distinct from the method itself, was in my view sufficient to enable any reader to understand what method was being used. Indeed, counsel for Mr Pope did not have any difficulty in explaining to this court what that method was in order to make his submissions in criticism of it. 8 I agree that the orders proposed by Powell JA should be made. 9 Powell JA: Each of these appeals is brought from a judgment delivered by Mahoney DCJ on 25 February 2000 when dealing with competing actions which had been brought by the Appellant in the first matter ("Mr Pope") and the Respondent in the first matter ("Mr Pantarotto"), seeking to recover damages for injuries sustained by them in a collision between two trail bikes, one ridden by Mr Pope and the other ridden by Mr Pantarotto, on a fire trail, apparently known as The Tooloom Plantation Road in a State Forest in far North New South Wales. In the action which had been brought by Mr Pope he sought to recover damages from Mr Pantarotto, but in the action brought by Mr Pantarotto he sought to recover damages from the Nominal Defendant pursuant to the provisions of s 27 of the Motor Accident Act 1988 ("the Act"), as the trail bike ridden by Mr Pope was neither registered nor insured in New South Wales. By reason of the latter fact, the Nominal Defendant, in the action brought by Mr Pantarotto, in reliance upon the provisions of s 31 of the Act, raised a cross-claim joining Mr Pope, who was the owner of the trail bike which he had been riding, as cross-defendant seeking to recover from him contribution towards, or indemnity against, any verdict which might be recovered by Mr Pantarotto against it in the action. 10 In the action which had been brought by Mr Pope, Mahoney DCJ found a verdict for Mr Pantarotto and ordered that Mr Pope pay Mr Pantarotto's costs of the action. In the action which had been brought by Mr Pantarotto, Mahoney DCJ found a verdict for Mr Pantarotto in the sum of $186,883, and ordered the Nominal Defendant pay Mr Pantarotto's costs of the action; on the cross-claim Mahoney DCJ found a verdict for the Nominal Defendant and ordered Mr Pope pay the Nominal Defendant's costs of the cross-claim (RAB 46) – the form of judgment entered pursuant to the orders made by his Honour (RAB 66) is in error as it provides that "(the) Plaintiff to pay Nominal Defendant's costs of cross-action". 11 In the appeal brought by him in respect of the action which he had brought against Mr Pantarotto, Mr Pope seeks to have the verdict found by Mahoney DCJ set aside and, in lieu thereof, a verdict found for him, the action to be remitted to the District Court for a new trial on the question of damages, and to have Mr Pantarotto ordered to pay his (Mr Pope's) costs of the proceedings and of the appeal. In the appeal brought by him in respect of the action which had been brought by Mr Pantarotto, Mr Pope seeks to have the verdict found by Mahoney DCJ in favour of Mr Pantarotto set aside, and in lieu thereof a verdict entered for the Nominal Defendant, and to have the cross-claim be dismissed and an order that "the Respondents" pay his (Mr Pope's) costs of the action, the cross-claim and of the appeal. In the appeal brought by it – which appeal was clearly a defensive appeal against the possibility that Mr Pope's appeal in the proceedings which he had brought against Mr Pantarotto might succeed – the Nominal Defendant sought orders that the verdict found by Mahoney DCJ in favour of Mr Pantarotto be set aside and, in lieu thereof, a verdict found for the Nominal Defendant, and an order that Mr Pantarotto pay the Nominal Defendant's costs of the proceedings in cross-claim and of the appeal and indemnify the Nominal Defendant in respect of any costs ordered to be paid to Mr Pope as a result of the dismissal of the cross-claim. 12 The collision between the trail bikes ridden by Mr Pope and Mr Pantarotto occurred on 8 June 1997, a fact which although, by reason of the provisions of s 79A of the Act relevant to the amount of damages which could have been recovered by Mr Pope if successful in the action brought by him, is not relevant to the issues which were debated on the hearing of the appeal. 13 8 June 1997 was the Sunday of the Queen's Birthday weekend. In the early morning of that day Mr Pope, who was then just 37 years of age, and who had been riding trail bikes from the age of 8 years, having loaded his trail bike onto his utility, drove from his home at Bonogin, a suburb of the Gold Coast, to join his friends, Brook Wyatt and Stewart Graham, who had earlier gone to camp at a property known as "Brooklyn" at Tooloom in this State, where Mr Wyatt and Mr Graham had camped overnight. 14 After he arrived at "Brooklyn", Mr Pope unloaded his trail bike and had a cup of tea with Mr Wyatt and Mr Graham and then the three of them, apparently accompanied by a Mr Tony Mattingly, who appears as if he, too, had camped on "Brooklyn" overnight, set out to ride through "Brooklyn" and into the State Forest – the ride through "Brooklyn" appears as if it occupied less than half an hour (BAB 6), and, after they had reached the forest, they appeared to have spent something of the order of two hours following a commonly used set of tracks through the forest until the accident occurred at about 11.20 am. 15 Mr Pantarotto who, at the time of the accident was not quite 30 years of age, appears also to have been an experienced trail bike rider. The evidence does not disclose when, or how, Mr Pantarotto travelled from his home, which is in a suburb of Brisbane, to the State Forest, nor does the evidence reveal anything of the course taken by Mr Pantarotto and his friends, Mark Harlow and two others – identified only as Lee and Gary – with whom he was riding until shortly before the collision between Mr Pope and Mr Pantarotto. 16 The fire trail at, and in the vicinity of, the site of the collision was approximately four metres (approximately 13 feet) wide, and, although it appears to have been suggested that it was wide enough to permit two four wheel drive vehicles being driven in opposite directions to pass provided each of the drivers was extremely cautious, the various photographs (Exs F, G and 1/Pan, BAB 243-245), which were tendered on the hearing before Mahoney DCJ, indicate that it was effectively a one lane track through the bush with a pair of wheel ruts, one on each side of the approximate centre of the track – the wheel rut on the eastern side of the track in the vicinity of the site of the collision appears to be somewhat deeper than that on the western side. 17 Prior to the collision, the group of riders of which Mr Pope was one, was riding in a Southerly direction with Mr Pope in the lead, Mr Wyatt about 15 metres behind him, Mr Graham some 50 to 60 metres behind Mr Wyatt, and Mr Mattingly at some distance behind Mr Graham. For their part, the group of which Mr Pantarotto was one, were riding in a Northerly direction, with Mr Pantarotto in the lead, Mr Harlow behind him and the other two members of the group behind Mr Harlow. 18 In a statement (Ex A/Pan BAB 289-290) given by him to the police on 22 February 1998 Mr Pope said (inter alia): 3. About 11.20 am on Sunday the 08/06/97, I was trail riding on my bike with some mates of mine, I was heading in a southerly direction coming away from the Tooloom-Legume Road, about 50 km/h maybe, we were going a bit quicker earlier but I thought I heard something and we slowed it down, I was travelling in a groove on the left side of the roadway, when I saw the other rider coming straight for me in the same groove, so I veered to the left a little bit, as far as I could. 4. He started veering to his left, it looked like we were going to miss, then his bike came straight back at me, I thought he must have skidded the back wheel away from me which pointed the front wheel at me, the handlebars just touched, which turned my front wheel into his foot peg, his right hand foot peg I think, because I was on the left side of him and when the handlebars touched it forced my front wheel to the right. 5. We collided and my bike did end overs, cartwheel type of things, I'm pretty sure my right arm went under his right handlebar, basically we both just fell off and that's it". 19 As recounted by Mahoney DCJ in his judgment (RAB 28-29), Mr Pope's oral evidence was to the following effect: "… he says that he and the other three paused at a tank stand, a bit to the north of where this accident happened. They had a bit of a talk. They then set off on their way, heading south along the track. They rounded the corner at about 50 or 55 kilometres an hour. He said that previously, from his use of that particular track, he was aware that there was a black boy, otherwise known as a grass tree, across the track so he 'backed off'. It was then, he claimed, that he heard another motor cycle. He said he backed off again because he was not sure whether or not there might be another vehicle coming towards him. Soon after that, or very soon after that, he saw what turned out to be Mr Pantarotto's vehicle coming towards him. He said he first saw it on the crest in front of him. This is a crest which is clearly visible in photograph 13/Pan taken from just to the south of the crest, facing towards the direction from which Mr Pope was coming, but from a point where, I am satisfied, Mr Pope would not have been able to see. But anyway, he says he saw Mr Pantarotto's vehicle at the crest coming into what he described as a slow sweeping left-hand bend for him as he travelled south. He said that Mr Pantarotto's cycle was on the exact line with him, but on the top of the hill, and he was coming straight for Mr Pope. Mr Pope claimed that he braked as hard as possible and veered slightly to his left, but he did not have much room to move because of the scrub to the side of the track. He claims that at all relevant times he was on his left hand side of the track. He then said that the right hand handlebar of Mr Pantarotto's motor cycle hit his right arm, which made him, Mr Pope, turn to the right and his wheel struck Mr Pantarotto's motor cycle, and he tumbled forward to his left. He landed off the road and – well that is all I need describe at the moment. Under cross-examination he said that the right hand handlebar of Mr Pantarotto's cycle hit the right hand handlebar of his own cycle. This is slightly different from what he said about it hitting his right arm. Then a little later he said that it hit both his arm and the handlebar of his cycle". 20 Mr Pope's statement to the police, and Mahoney DCJ's summary of his oral evidence at trial, require a little elaboration: (a) by reference to Ex G (BAB 244) it is clear that the groove to which Mr Pope referred was the wheel rut on his (Mr Pope's) left hand side (the Eastern side) of the fire trail; (b) a reference to Exs F, G and 1/Pan (BAB 243-245) makes it clear that, until Mr Pope was well into the left hand curve of which he spoke, he, as Mahoney DCJ pointed out, would not have been able to see the crest of the fire trail to the South of where he was; (c) a reference to Ex F (BAB 243), a photograph said by Mr Pope (BAB 25) to have been taken from the impact site looking South, indicates that, even at that point, Mr Pope would not have been able to see the crest in the fire trail to the South; (d) Mr Pope's assertion, in his statement to the police, that "(he) saw the other rider coming straight for (him) in the same groove", an assertion which he repeated in his oral evidence at trial, was clearly an assertion that, both at the time when he first saw Mr Pantarotto, and at all times up to the point of impact, Mr Pantarotto's trail bike was in the wheel rut to his (Mr Pantarotto's) right hand (the Eastern side of the fire trail). 21 In a statement (Ex F/Pan, BAB 293) made by him to Senior Constable Sinclair on 8 June 1997 at the site of the collision, Mr Wyatt said: "Some time around 11.20 am on Sunday the 8/6/97, I was riding my trail bike along a fire trail in a State Forest at Tooloom with my mate Mark Pope when we were heading south down the hill. I was about 15 metres behind him and was travelling about 60 km/h when I saw Mark react by braking and then I saw the other rider coming towards him. They were both skidding their rear wheels. I saw Mark veer to his left. They were both trying to avoid each other. The other bloke was fishtailing a bit and then they clipped handlebars and it turned Mark's front wheel into him and it hit the right hand foot peg. That was about it". 22 As summarised by Mahoney DCJ in his judgment (RAB 29-31), Mr Wyatt's oral evidence was as follows: "Mr Wyatt's version of the events, when he came to give evidence was in these terms: he was coming second in the line of four headed by Mr Pope, he came through a right hand bend and then began to approach a lefthand bend. He saw Mr Pope's red brake light come on, so he braked, and he said he saw another motor cycle coming towards Mr Pope from the south. He described the terrain as a clear fire trail. The other motor cycle – and he is obviously referring to Mr Pantarotto's – he said was coming down a steep hill, 'I saw him coming down the hill and then on to the flat area on our side. I saw him'. He was asked 'Where was Mr Pope with respect to the eastern side of the roadway?' and he said 'He was on his left hand side'. That is the eastern side. He was asked where the other motor cycle was and he said 'It was in the same path. He was on our line. He was on our side of the road'. He said Mr Pope veered his vehicle to the left to try to avoid it. They were both braking hard. The other motor cycle was trying to avoid Mr Pope as well, both by the braking and by the way the bike was being manoeuvred at the time. Then he said they hit, and he said the point of impact was right on the eastern side of the road, he said 'The handlebars had hit, that caused the accident'. He said the other rider, that is Mr Pantarotto, ended up on the western side of the road and his motor cycle ended up in about the middle to the western side of the road, but just on the western side of the road. ………………………………………………………………….. Mr Wyatt was cross-examined. He said that he only saw the red brake light come on once on Mr Pope's vehicle. He did not see any slowing down by Mr Pope until that red brake light came on, and at that stage he was maintaining about a 15 metre distance behind him". 23 To Mr Wyatt's statement to the police, and Mahoney DCJ's summary of his evidence, might be added the following evidence given by Mr Wyatt in the course of cross-examination (BAB 99-101): "Q. At that time when Mr Pope illuminated his brake light? A. I couldn't see Pantarotto at that stage, when I saw Mike Pope's brake light illuminate, I could not see Pantarotto at that stage. Q. Right. Because he was out of sight? A. Yes. Q. And the accident, the collision, occurred within maybe only a couple of split seconds after that, is that right? A. Yes. Q. So that you had no vision of Mr Pantarotto's vehicle but for a couple of split seconds after the tail light was illuminated is that right? A. First thing I saw was Mark's brake light illuminate, shortly after that I saw Mark Pantarotto come into the picture, and then … Q. Yes, and then there was a collision? A. Yes. Q. All of which took place in the matter of a second or so only, is that right? A. Probably longer than a second. Q. Well how much, two seconds? A. I'd be guessing. Q. But very short? A. It happened quickly. Q. You made a statement to the police on the very day of the accident didn't you. A. Yes I did. …………………………………………………………………….. Q. And you'll see there Mr Wyatt that there is absolutely no reference to the cycle driven by Mr Pantarotto being on the eastern or incorrect side of the road is there? A. Can I just read it please? Q. Certainly? A. No it doesn't. Q. And that's consistent with the fact that you only observed Mr Pantarotto's cycle a matter of a split second or so after the brake lights were illuminated on Mr Pope's cycle isn't that right? A That's correct. ………………………………………………………………….. Q. And prior to that Mr Pantarotto's cycle was obscured from your view because of the curve in the road isn't that right? A. Yes". 24 Although he had apparently not made a statement to the police (BAB 138-139) Mr Graham had apparently made a statement – one assumes to an investigator – in April 1998, in which he said that when he came upon the scene he saw a bike – which was Mr Pantarotto's bike – sliding across the track towards the trees on his right hand (the Western) edge of the trail. 25 Mr Graham's evidence at trial was summarised by Mahoney DCJ in his judgment (RAB 31-32) as follows: "… in his evidence he says that he didn't see the point of impact except for the fact that he saw a motor cycle sliding across the road towards the western side. He was clearly at that stage describing that he had seen Mr Pantarotto's cycle. He was asked to describe the extent of the sliding and he said 'It was ever so slightly moving'. He subsequently said that meant only a matter of inches that he saw it actually moving. He inspected Mr Pantarotto's motor cycle at the scene of the accident. Mr Graham is a marine engineer and a qualified motor mechanic – in fact he had Mr Pope's bike at his garage for a long time. At the scene he inspected Mr Pantarotto's motor bike and he remembered that it had some very unusual damage to it in so far as the right hand brake lever – and this was a foot brake – was bent back almost 180 degrees, and it had punched a hole in the engine casing on the right hand or off side of Mr Pantarotto's motor cycle. The engine casing would be clearly visible in the photographs of XR400 motor bikes, which are in evidence, or on the two one sixth scale models that I have already mentioned. Indeed the actual fractured and punctured engine casing from the off side of Mr Pantarotto's vehicle has been tendered in evidence in this case". 26 Some aspects of Mahoney DCJ's summary of Mr Graham's evidence call for elaboration: (a) In the course of his oral evidence, Mr Graham said (BAB 139, 144): "Q. Did you see that Mr Pantarotto's bike had a fracture to the right hand or off side engine casing? A. Yes I did, I did, yes. ……………………………………………………………. Q. What did you observe? A. It was very strangely damaged, or unusually damaged. The right hand brake lever, the operating lever for the rear brake had been folded back through 180 degrees, punching the hole in the engine case that was referred to earlier. That's a very unusual, extremely unusual result of any sort of damage" ; (b) Mr Graham gave the following evidence as to the damage to Mr Pope's trail bike (BAB 139-141): "Q. Did you have the opportunity of inspecting Mr Pope's bike specifically after the accident? A. No, it was taken directly from the accident. Q. Just answer yes or no? A. Yes. Q. And did you have occasion to specifically look at the front wheel? A. I repaired the motor cycle so yes I inspected it. Q. Was the front wheel damaged? A. Yes it was. Q. Impact damage consistent with having hit Mr Pantarotto's bike? A. Impact damage consistent with hitting something, yes. Q. Consistent with hitting the engine casing? A. No. ………………………………………………………….. Q. And why do you say it was not consistent with hitting the engine casing? A. The shape of the damage to the wheel. Q. To the what? A. The shape of the damage to the rim" ; ………………………………………………………………….. Q. Well I suppose the damage to the rim would be consistent with contact – heavy contact with the roadway wouldn't it? A. No I don't believe so. If – in my experience as a motor cycle mechanic, which I did for seven years, if you have a direct impact with a flat surface, like a car, a wall, you get a flat – you get a flattening of the shape of the wheel, it becomes flat suiting (?) the wall. This had a distinct V-shape in it, which was very, very unusual. Q. The rim did? A. Mm, the circular shape of the rim had a distinct V into it. Q. So that whether it had a – well as you've indicated, I don't know whether that makes sense to the transcript typist, but you're indicating that the circle of a wheel rim was deformed when you saw it, by being pushed in at an angle to create … A. A very sharp … Q. …a V, the apex point of which is facing the axle? A. Back into – yes that's correct. Q. Well that would be consistent with it coming into contact with something protruding, is that right? A. Correct. Q. Like a foot peg on a motor cycle? A. That's exactly my belief, that it impacted a foot peg, it's a motor bike … (not transcribable). Q. And the engine casing on that particular bike was sitting immediately above the foot peg was it not? A. Behind the engine casing sits there and the foot peg sits out there … Q. But the casing sits above and behind the peg, right? A. Yes, correct. Q. So that the peg in fact is installed into the bottom line of the casing, is that right? A. It bolts to the frame but yes, in that line, in that area of the motor cycle, yes that's correct". (c) as can be seen from Ex D/Pan (BAB 292), and as was explained on the hearing of the appeal (T 21-22), the foot brake pedal is located on the right side of the trail bike in a position forward – perhaps 20 cms - of, and approximately in line with, the right foot peg; (d) a reference to Ex B/Pan, and to some of the evidence given by Mr Pope in the course of cross-examination (BAB 65), indicates that the fracture in the engine casing is situated to the left of that part of the right lower frame of the trail bike to which the right foot peg is bolted, but in a position forward of the right foot peg and behind the position in which the foot brake would normally be located. 27 As summarised by Mahoney DCJ in his judgment (RAB 32-33), Mr Pantarotto's evidence was to the following effect: "Mr Pantarotto's evidence was to the effect that he was travelling north with a group of motor cyclists in single file. He was the leading bike. He says that he was doing about 30 or 40 kilometres an hour. He had just come over a slight rise and was going down a gradient into what was for him a right hand bend – that is the left hand bend Mr Pope spoke of in his evidence. He said about 10 to 20 metres away from him he saw Mr Pope's motor cycle. He said at that stage he was doing about 30 to 40 kilometres an hour. He, to use his turn of phrase 'decelerated and lightly braked'. He said Mr Pope continued on in the same course that he was bearing, straight towards him, Mr Pantarotto. Mr Pantarotto said that he had turned to his left by twisting his handlebars. His bike responded. He had moved about 2 or 3 feet to his left. He had no time to move any further left than that. He said after the two bikes collided he landed somewhere forward of the point of impact, he thought completely off the track and facing a tree. He was in immense pain, he says, at the time, and there is no dispute about that. He claims that he was too distressed to give a statement to the police when they asked him at the scene to do so. He was cross-examined. He conceded that up until he was either 4, 6 or 8 metres, or something of that order, from the point of the crest of the hill, he was unable to see beyond it and that appears quite graphically from Exhibit 13/Pan. He was asked when he first saw Mr Pope, and he said he was down the crest and at the beginning of the corner when he first saw Mr Pope. He was then asked to make various markings on Exhibit G. He put a red X where he was when he first saw Mr Pope, and a red dot where he said Mr Pope was at that time. Exhibit G shows a long white line running along the track. That is made out of a rolled out toilet roll, or toilet rolls. Mr Pope had done the roll out and taken the photographs, or had them taken in his presence, he was then asked to mark, as the next spot, where the accident had occurred, and to put an X with a circle around it. He did so, but unfortunately the thickness of the pen makes it just look like a red circle. He was then cross-examined about distances and so forth, and he indicated that he would like to change the position of the red X in the circle, and he replaced it with a black, thick black dot. All of these four markings are clearly visible on Exhibit G. At all times Mr Pantarotto expressed a disinclination to be pinned down to marking the photograph, Exhibit G, because he could not be certain about precisely where it would be, and he claimed that any markings he made on it would be within a matter of give or take some metres". 28 Mahoney DCJ's reference to Ex G, and the markings placed on it by Mr Pantarotto, needs further elaboration: (a) the point marked with a red cross by Mr Pantarotto is in the wheel rut on the Western side of the fire trail and, as best as one can judge it, about half way from the crest over which he had passed to the point which he marked as the position of Mr Pope when he first saw him; (b) the latter point is located in the wheel rut on the Eastern side of the fire trail at a point which appears to be where the left hand curve of which Mr Pope had spoken was commencing to flatten out and as the fire trail has commenced to rise up to the crest over which Mr Pantarotto had come; (c) the point marked by Mr Pantarotto with a black dot appears on the Western edge of the wheel rut on the Western side of the fire trail and, as best as one can judge it, about half way between the point at which Mr Pantarotto said he was when he first saw Mr Pope, and the point at which Mr Pantarotto says Mr Pope was at that time. 29 Although it is not recorded in Mahoney DCJ's summary of Mr Pantarotto's evidence, it should be noted that, in the course of his evidence-in-chief, Mr Pantarotto gave evidence directed to that part of Mr Pope's evidence in which Mr Pope recorded what he claimed was the cause of the collision and, in particular, what he said was the contact between the handlebars of their respective trail bikes. In the course of doing so, Mr Pantarotto gave evidence of having, two days before the trial, gone to the premises of a motor cycle retailer in Lismore where, having positioned two similar motor cycles in the manner which he said represented the angle at which his bike was struck by Mr Pope's bike, he took a photograph (Ex C/Pan, BAB 291) which indicated that at that point the handlebars of the two bikes were offset at the same time so Mr Pantarotto said he placed the two trail bikes in a position where they were parallel to each other but facing in opposite directions but with the handlebars touching each other and, having done so, then turned the handlebars of one bike towards the other, a manoeuvre which he said placed the front of the front wheel of the bike which had been turned in a position which was behind the right foot peg and half way down what was described as the right swing arm, that is that part of the structure of the trail bike which carried the rear wheel. The latter part of Mr Pantarotto's evidence on this point was objected to by counsel then appearing for Mr Pope, which led Mahoney DCJ to say (BAB 157): "I propose to allow Mr Pantarotto's evidence to be introduced conditionally upon the view and the demonstration being replicated in the presence of all counsel and the Court and a reporter at some appropriate time". 30 Later in the day, and while Mr Pantarotto was in the course of being cross-examined by counsel then appearing for the Nominal Defendant, counsel for Mr Pantarotto applied to his Honour to visit the local Honda dealer for the purpose of carrying out a demonstration, to which application counsel then appearing for the Nominal Defendant objected to and suggested there were available exact 1/6th scale models produced by Honda to which access was available. A little later (BAB 202) counsel then advised his Honour that the scale models of the trail bikes were accepted as being true models and proper scale and that there was no need for the view which had earlier been applied for. By leave, Mr Pantarotto was then further examined in chief and, using those scale models, reproduced the actions which he said he had earlier taken at the Honda dealer's premises. At an earlier point in the course of Mr Pantarotto's evidence-in-chief (BAB 154), his Honour had said: "He has indicated what I will call the Pope bike front wheel collecting the area of the offside of the Pantarotto bike in the area between the two wheels, because I cannot see any better at the moment, at an angle of approximately 60 degrees". 31 Mr Harlow, whose evidence followed that given by Mr Pantarotto, had, in July 1998, given a statement to an investigator employed, or retained, by the Nominal Defendant. The relevant part of that statement (Ex 14/Pan) was as follows: "2. On 8 June 1997 I was trail bike riding in Beauty State Forest near Tooloom in company with Mark Pantarotto. 3. At approximately 10.00 am I was riding north, I have decided the direction from a diagram on the Police P4 I have examined along a road located in the State Forest. I was riding approximately 10 metres behind Mark Pantarotto and was near two other riders named Lee and Gary who were behind me. I rode along at the hill top on the road and then down a sharp downhill right hand bend. As I rounded the bend I saw Mark Pantarotto being involved in an accident. 4. I did not actually witness the impact but witnessed the effects of the impact. By this I mean I saw both the bikes still moving from the effects of the impact. 5. What I saw when I arrived at the accident scene, which I would estimate to be 2 seconds after the actual impact, was Mark Pantarotto's bike spinning on its left hand side on the foot peg in an anti-clockwise direction. The bike was laying on its side half on and half off the left hand side of the road from my direction of approach. 6. I saw Mark rolling towards a tree on the left hand side of the road about 7 to 8 metres further down the road from his bike. 7. I saw the other riders (sic) bike off the side of the road laying (sic) on its side on the right hand side of the road. I saw the other rider coming up out of the grass on the right hand side holding his arm. 8. I saw another rider who had apparently been riding with Mark Pope arrive at the scene of the accident about the same time as me. We both got off our bikes together". 32 In his judgment Mahoney DCJ summarised Mr Harlow's evidence as follows (RAB 34-35): "Mr Harlow gave evidence in the case. He claims that he was about 30 metres behind Mr Pantarotto. He was the second in what I will call the Pantarotto group. He had started off being about 50 metres behind him, and doing about 50 kilometres an hour, 'keeping pace' was the turn of phrase that he agreed with. I think that was put to him by Mr Goodridge, learned counsel for Pantarotto, but Mr Harlow says that nearing the accident site he was gaining on Mr Pantarotto because he did not know the track and he did not want Mr Pantarotto to get out of his sight, but he said as Mr Pantarotto slowed down so did he, and as he came to the corner he was about 30 metres behind Mr Pantarotto, then Mr Pantarotto disappeared from his sight as he entered the corner, but at the time Mr Pantarotto disappeared from his sight he claims that he was in the left hand wheel track, referring to the left hand wheel track which is only just visible in Ex 13/Pan, and he said the next time he saw Mr Pantarotto he was flying through the air and rolling up towards a tree. He stopped near the tree or a bush. He said that at the time he saw him flying through the air he, Mr Harlow, was about 10 metres back to the south of him. Anyway, he stopped his vehicle and attended to his friend. He said they had been on that road for a few minutes prior to then". 33 When, in the course of his judgment, Mahoney DCJ came to deal with the question of liability, he, after setting out (RAB 37-40) the submissions which had been advanced by counsel, said (RAB 40-42): "I have taken all of those submissions into account. I have carefully considered the evidence as it had developed during the case, and again, after I had heard all the submissions. I make the following findings:- First, I find that Mr Pope was riding his motor cycle in a southerly direction along the track at least at 50 kilometres an hour approaching what to him was a lefthand bend. I find secondly, that Mr Pantarotto was heading in the opposite direction on the same track at something significantly less than 50 kilometres per hour. Thirdly, I find that when Mr Pope's motor cycle came into contact with Mr Pantarotto's motor cycle it did so in two specific respects, quite clearly. First, I find that the front wheel of Mr Pope collided with the offside foot brake of Mr Pantarotto's motor cycle and bent it back about 180 degrees where it punctured the engine casing. The engine casing is Exhibit B/Pan. Secondly, I find that the front wheel of Mr Pope's motor cycle, on balance of probabilities, almost immediately thereafter collided with the offside foot peg of Mr Pantarotto's vehicle. I am satisfied, on the balance of probabilities, that one or other of those points of contact with Mr Pope's front wheel occasioned to it the V-shaped dent which Mr Graham spoke about, and I am satisfied that the contact between the Pope front wheel and those two portions of Mr Pantarotto's vehicle could only have happened because Mr Pope's motor cycle came into contact with Mr Pantarotto's motor cycle at an angle of about 60 degrees, as demonstrated by Mr Pantarotto using the toy motor cycles, which are also an exhibit. I am satisfied that the first contact between the two motor cycles was not a clashing of the two handlebars. I am satisfied that although both handlebars were found after the event to have been damaged and bent, that feature is completely understandable, bearing in mind the combined approach speed in the order of 90 kilometres an hour, and the fact that they then tumbled about the place the way that the witnesses have described. Next, I find that the first impact between the two motor cycles was on Mr Pantarotto's correct side of the fire trail. I next find that it was reasonable for Mr Pantarotto to have ridden along the fire trail on his side of the track at the speed at which he was doing, and I do not find that he was negligent in doing so, or in not seeing Mr Pope's vehicle before he did. I find, on the balance of probabilities, that Mr Pope was riding too quickly for the circumstances prevailing, and that in the course of negotiating what to him was the lefthand bend, he went on to the incorrect side of the fire trail where the accident occurred. In all of the circumstances then, there will be verdicts in action 7005 of 98 in favour of the plaintiff, Mr Pantarotto v the Nominal Defendant, and in favour of the Nominal Defendant against the cross defendant Mr Pope. There will be a verdict for the plaintiff on the defendant's plea of contributory negligence. In action 503 of 1999 there will be a verdict in favour of the defendant, Mr Pantarotto, against the plaintiff Mr Pope". 34 In each of the amended Notices of Appeal which were filed on behalf of Mr Pope, the following Grounds of Appeal were taken: "1. His Honour erred in rejecting the account for which the Appellant contended which was, in all material respects, consistent with the objection (sic) evidence, the factual circumstances which were common ground and the compelling inferences of the case. 2. His Honour erred in rejecting the evidence of the independent witness, Brooke (sic) Wyatt, as to the circumstances of the accident which was consistent with the objective evidence, the factual circumstances which were common ground and the compelling inferences of the case. 3. His Honour erred in accepting the account given by the respondent as it was contrary to the objective evidence, the factual circumstances which were common ground and the compelling inferences of the case. 3A. His Honour erred in admitting and relying upon evidence of the First Respondent of the alleged consequences of the clashing of the right extremity of the motor cycle handlebars, such evidence requiring specialised knowledge which the First Respondent lacked. 4. His Honour erred in accepting the evidence of the Respondent (sic) of the alleged consequences of the clashing of the right extremity of each motorcycles (sic) handlebars, such evidence involving inherent uncertainties and no account having been taken of the circumstances that the Appellant's front wheel had been turned left prior to the conclusion. 5. His Honour erred in making the following findings of fact which were contrary to the objective evidence, the factual circumstances which were common ground and the compelling inferences of the case for such findings. (a) '… that the first contact between the two motor cycles was not a clashing of the two handlebars'. (b) '… that the first impact between the two motor cycles was on Mr Pantarotto's correct side of the fire trail'. (c) '… that Mr Pope was riding too quickly'. (d) '… that (Mr Pope) went onto the incorrect side of the fire trail where the accident occurred'. 6. His Honour erred in making findings of fact without providing any or any sufficient reasons". 35 In the Notice of Appeal which was filed on behalf of the Nominal Defendant, the same Grounds of Appeal were taken. 36 When the appeal was called on for hearing, Mr R J Burbidge QC appeared with Mr D M Wilson for Mr Pope, Mr L King SC appeared for the Nominal Defendant, Mr H J Halligan appeared for Mr Pantarotto's third party insurer, while Mr M J Joseph SC appeared with Mr R I Goodridge for Mr Pantarotto. 37 Despite the form of the Notice of Appeal, it seemed to me that the submissions advanced by Mr Burbidge in the course of his oral submissions were, in reality, but two, they being: (a)(i) the findings of fact made by Mahoney DCJ were not based upon an assessment of the credibility of, on the one hand, Mr Pope and Mr Wyatt and, on the other, Mr Pantarotto; (ii) those findings of fact must therefore have been arrived at by a process of deduction from facts which were not in issue and could therefore be reviewed by this Court; (iii) the facts which were not in issue supported the case put forward by Mr Pope and were incapable of supporting the case advanced by Mr Pantarotto; (b)(i) the experiment which had been carried out by Mr Pantarotto at the Honda dealership and the demonstration carried out by Mr Pantarotto in the course of giving evidence was flawed, at least in the sense that it did not have regard to the fact that, according to Mr Pantarotto, immediately prior to the collision between the two trail bikes the front wheel, and, thus, the handlebars, of his trail bike, was and were turned to the left; (ii) even if that not be so, the experiment and the demonstration did not establish that the collision between the two trail bikes occurred in the manner asserted by Mr Pantarotto, and at a time when Mr Pantarotto's trail bike was in the wheel rut on the Western side of the fire trail; (iii) all that would be established by the acceptance of the validity of that experiment and that demonstration was that Mr Pope's recollection as to the sequence of events leading up to the collision between the two trail bikes was incorrect; (iv) by virtue of the matters set out in (a), so much of Mr Pope's evidence as asserted that the collision occurred when both trail bikes were in the wheel rut on the Eastern side of the fire trail should be accepted, it following that Mr Pope was entitled to a verdict in his favour and his action, and on the cross-action in Mr Pantarotto's action, and that the verdict in favour of Mr Pantarotto against the Nominal Defendant should be set aside. Findings of Fact – based upon an assessment of credibility or arrived at by a process of deduction 38 As will be apparent from what I have earlier recorded, at the heart of what I might call the first of Mr Burbidge's submissions was the assertion that Mahoney DCJ's findings of fact must have been arrived at by a process of deduction from facts which were not in issue and were not based upon an assessment of the credibility of, on the one hand, Mr Pope and Mr Wyatt, and, on the other, Mr Pantarotto. 39 I am unable to accept that submission, if only because, if one has regard to Mahoney DCJ's summary (RAB 37-40) of the submissions which had been advanced by counsel, about the only matter which appears to have been common ground was that, at some time, the front wheel of Mr Pope's trail bike struck the right foot peg of Mr Pantarotto's trail bike. 40 Nor can it be said that, in the light of submissions of counsel, Mahoney DCJ was not called upon to make, or that he did not in fact make, an assessment of the credibility of, on the one hand, Mr Pope, and, on the other, of Mr Pantarotto. 41 Before recording what had been the submissions of counsel, Mahoney DCJ had written (RAB 35-36): "What I have to do is evaluate the evidence that is placed before me from each witness, to do so carefully and, as best I am able, to apply the principles of law in relation to fact finding. That means I can accept all of what a witness said, part of what a witness says, or none of what a witness says. It means that I have to be able to differentiate between subjective honesty and objective reliability, and in that regard it is necessary for me to take into account the circumstances surrounding the acquisition of the awareness of events sought to be recounted in the courtroom. In short, this case, which has lasted about 4 days, is about what happened within the space of, I would imagine, at the very outside, 3 seconds", and, having done so, referred to a number of authorities in which reference has been made to the vagaries of human memory, the capacity of witnesses and, in particular, parties, to deceive themselves, and of the fact that many witnesses, although honest, can be shown to have been quite mistaken. 42 In the course of his summarising counsel's submissions, Mahoney DCJ noted (RAB 38) the submission of counsel for the Nominal Defendant that the evidence of Mr Wyatt was impressive, clear and unembellished, the submission of counsel for Mr Pantarotto (RAB 38-39) that Mr Pope had concocted a story about the handlebars having hit before his front wheel collided with the offside of Mr Pantarotto's trail bike, and the submission that the obvious conclusion to be drawn from the evidence was that Mr Pope had gone wide on the bend and had drifted over onto Mr Pantarotto's side of the fire trail. Having recorded those submissions, Mahoney DCJ then recorded (RAB 39) the submission by counsel appearing for Mr Pantarotto's third party insurer that, for a variety of reasons, Mr Wyatt's evidence was wrong, and the further submission that although, at first blush, Mr Pope's evidence seemed to be credible, for other reasons his credibility was very much in doubt. As an example of matters advanced by counsel, his Honour recorded that counsel had pointed out that Mr Wyatt had claimed that he had first seen Mr Pantarotto when he was up on the crest of the rise, but under cross-examination he conceded that his first awareness of any trouble was immediately after he had noticed the red brake light come on 15 metres ahead of him (see para 15 (above)). 43 Having done so, Mahoney DCJ then recorded, and dealt with, the submissions advanced by counsel for Mr Pope in the following way (RAB 39-40): "Mr Radburn in his final address met head on the attack on the moral probity and the subjective honesty made by Mr Halligan on Mr Pope. For my part I note both the attack and the justification, or defence, of Mr Pope. It is not necessary for me to make any evaluation about any questions of fraud on the insurance company that were suggested against Mr Pope. I do not need to make any decision about any subjective dishonesty on the part of Mr Pope. It seems to me that the vast reservoir of judicial experience exemplified in the cases that I have quoted briefly from out of the Supreme Court of New South Wales and the High Court, makes it abundantly clear that anybody can look to be terribly wrong, but at the same time be, in their own mind, quite convinced that they are telling the truth. It all depends upon what sort of pressures they are under at the various stages they are being asked (a) to take matters aboard, (b) to commit them to memory, and (c) to regurgitate them. Mr Radburn suggested that the credit of Mr Pantarotto himself was not all that intact after he had been cross-examined, particularly by Mr Crittle in relation to his use of an inflatable boat, which turned out to be a Thunder-Cat, representing Australia against New Zealand, at speeds of up to 60 miles an hour, or 60 knots in the open water. And Mr Radburn laid great emphasis on the fact that in support of the claim that the handlebars had clashed both riders sustained fractures of their right lower forearms. He put to me that the versions of Messrs Pope and Pantarotto could not stand together, and that when I evaluated all of the evidence I would prefer the case put forward on (sic) Mr Pope". Given the last sentence in the passage from Mahoney DCJ's judgment which I have just recorded, it is, in my view, inescapable that Mahoney DCJ regarded himself as bound to make an assessment of, on the one hand, the credibility of Mr Pope and, on the other, of Mr Pantarotto; and given his Honour's earlier statement (para 33) (above) as to the nature of his task when it came to fact finding, and his references then and in the earlier part of his record of the submissions of Mr Radburn to the decisions of the Supreme Court and of the High Court, it seems to me that, when he came to record his findings of fact, which findings of fact (para 25) (above) followed immediately upon the record which he made of counsel's submissions, those findings of fact were based, at least in part, on his Honour's assessment of the credibility, on the one hand, of Mr Pope and, on the other, of Mr Pantarotto. Mr Pantarotto's Experiment and Demonstration 44 Despite his submission that the experiment and demonstration did not establish that the collision between the two trail bikes could not have occurred in the manner asserted by Mr Pope, in the course of his submissions Mr Burbidge sought to demonstrate, both by reference to a diagram which he had prepared for the purpose, and also by carrying out his own demonstration using the 1/6th scale model trail bikes, that, if that demonstration were carried out with the body of each model in parallel to the other, but with the front wheel of the model representing Mr Pantarotto's trail bike turned to the left, and the handlebars came into contact with each other, the wheel of the model representing Mr Pope's trail bike would have struck the right foot peg of the model representing Mr Pantarotto's trail bike. I regret to say that I was not persuaded either by Mr Burbidge's diagram or by his demonstration that that would be so; rather, I concluded that, even in the situation proposed by Mr Burbidge, the front wheel of the model representing Mr Pope's trail bike would have struck the model representing Mr Pantarotto's trail bike at a point along the swing bar. 45 It is true that, even if one accepts as valid the conclusions sought to be demonstrated by Mr Pantarotto's experiment and demonstration, it does not necessarily follow that the collision between the two trail bikes occurred in the manner asserted by Mr Pantarotto, and at the place where he asserted that the collision occurred. But the matter does not rest there. There remains the evidence of Mr Pantarotto, not only as to the point at which the collision occurred, but also as to the angle at which, so he said, his trail bike was struck by Mr Pope's trail bike, the damage to the right foot brake and to the engine housing of Mr Pantarotto's trail bike, the damage to the wheel rim of Mr Pope's trail bike, and the evidence of Mr Graham as to what he observed and his conclusions as to the cause of the damage which he observed to each trail bike which he drew from his observations. All of that material, in my view, justified Mahoney DCJ in finding, as he did, that Mr Pope's trail bike struck Mr Pantarotto's trail bike at an angle of approximately 60 degrees at a point, first, at or forward of the right foot brake causing the foot brake to be bent back almost 180 degrees until it punched a hole in the engine casing and, then, proceeding further to the rear to strike the right foot peg. Those findings in turn would justify his Honour finding, as he did, that when he entered the left hand bend Mr Pope was travelling at an excessive speed, which fact led him to cross from the wheel rut on the Eastern side of the fire trail in a South Westerly direction until it struck the trail bike ridden by Mr Pantarotto. 46 I therefore conclude that the submissions advanced on behalf of Mr Pope have not been made out, it following that each of the appeals lodged on his behalf should be dismissed. 47 For his part, Mr King (T 39) contented himself with adopting the submissions which had been advanced by Mr Burbidge on behalf of Mr Pope. 48 I therefore conclude, as I did in respect of the appeals lodged on behalf of Mr Pope, that the appeal lodged on behalf of the Nominal Defendant ought to be dismissed Orders 49 For these reasons I propose the following Orders:- a. In matter No. CA 40177/00: (i) order that the appeal be dismissed; (ii) order that Appellant pay the Respondent's costs of the appeal. b. In matter No. CA 40178/00: (i) order that the appeal be dismissed; (ii) order that the Appellant pay the costs of each of the Respondents of the appeal; (iii) note for the information of the Costs Assessor that counsel for the Second Respondent, on the hearing of the appeal, adopted the submissions of counsel for the appellant. c. In matter No. CA 40385/00: (i) order that the appeal be dismissed; (ii) order that the Appellant pay the costs of the First Respondent of the appeal; (iii) note for the information of the Costs Assessor that on the hearing of the appeal counsel for the First Respondent did not advance any submissions directed specifically to the appeal; (iv) make no order as to the costs of the Second Respondent to the appeal. 50 Giles JA: I agree with Powell JA. ****** 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.