BLACK v BLACKTOWN CITY COUNCIL [2003] NSWSC 394

New South Wales Supreme Court

CITATION : BLACK v BLACKTOWN CITY COUNCIL [2003] NSWSC 394 HEARING DATE(S) : 6-8 May 2003 JUDGMENT DATE : 8 May 2003

JUDGMENT OF : Hulme J at 1 DECISION : The Plaintiff's claim is dismissed; I order the Plaintiff pay the costs of this trial and of the trial before Hidden J

PARTIES : David James Black - Plaintiff Blacktown City Council - Defendant FILE NUMBER(S) : SC 10056/93 COUNSEL : M Cranitch SC//Ms E Welsh - Plaintiff M McCullooch/S Glascott - Defendant SOLICITORS : Doherty Partners - Plaintiff Phillips Fox - Defendant

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

Thursday, 8 May 2003

10056/93 DAVID JAMES BLACK v BLACKTOWN CITY COUNCIL JUDGMENT 1 HULME J: The location of the events which give rise to these proceedings was a road then called Bowmans Road which continued from east of its intersection with Tennyson Road in a westward direction until it intersected with Turbo Road. At that intersection Bowmans Road turned fairly sharply at an angle of approximately 30 to 40 degrees towards the south-west. 2 Prior to the events with which the proceedings are concerned, the defendant had been engaged in carrying out some roadworks in the vicinity. These fell into two parts. To the east of the Turbo Road intersection the council had acquired some land from a nearby landowner, EPT, and taken some steps towards widening Bowmans Road on the southern side in order that it would become two lanes in each direction. To the west of the intersection with Turbo Road construction had been commenced on an extension of the east-west portion of the road such that it would divert by only some 5 degrees or so rather the 30 or 40 degrees to which I have previously referred. 3 At about 2 to 2.15am on 19 March 1987, the plaintiff, riding a 900cc Honda motorcycle, stopped in Tennyson Road at the corner of that street and Bowmans Road. He allowed a vehicle driving west in Bowmans Road to pass in front of him and then followed it along Bowmans Road. A description of what occurred thereafter was given to a Constable Passmore by two persons who had been in the motor vehicle at the time. According to Miss Giblin, whose statement was taken at about 4.55pm on 19 March, it was this: "I was in my friend's car, travelling down Bowmans Road towards Marayong, when I heard a noise from behind. Then a bike overtook us and went flying past, and then about 50 feet ahead the road goes to the left, but the bike kept going straight ahead, and I saw all the dust as he went off the road." 4 At about 7am on 24 March the second occupant of the vehicle, Belinda van Zyp, said this: "On Thursday morning about 2.15 I was driving Penny's car along Bowmans Road towards Marayong. As I was coming up to the intersection of Tattersalls and Bowmans I noticed a bike stop and give way to me. As I drove past I could see he didn't have a helmet on and he was swaying on the bike as if he was about to fall over. I kept watching him in the mirror, when about 50 metres before Turbo Road I heard the bike rev up and pull out and overtake us very fast. The road bends to the left but the bike just went straight ahead. I could see him put the brakes on and the back wheel started to slide out sideways off the road and then there was just a cloud of dust." 5 Constable Passmore, who attended the scene, made some observations. He gave evidence that there was a skid mark which commenced 6 metres east of the eastern edge of the Turbo Road bitumen and 7 metres south of the northern edge of Bowmans Road. This skid mark extended in a straight or perhaps slightly curved direction for some 22 metres over bitumen, across 16 metres of dirt, and then for a further 10 metres. At the end of, or within the 16-metre section there was a ditch and a mound of dirt apparently excavated from the ditch, the ditch being half to one metre in depth and the ditch and mound each being something of the order of 3 to 5 metres wide. 6 Constable Passmore also observed the scene by torchlight, seeking, particularly along the line of the skid mark, indications of anything that might have contributed to the event. He saw nothing. 7 The plaintiff's evidence as to what had occurred was that he was riding along Bowmans Road at a speed of up to about 80 kilometres an hour, passed a vehicle and then, after he had completed that manoeuvre, as he came up to the bend in Bowmans Road noticed a substance on the road which he said was like shiny blue metal. He became aware of it when it was practically right in front of him. He had no time to reduce the speed of his bike before hitting it. The substance looked like a shower of blue metal across the roadway. 8 The plaintiff said the front wheel slid out from underneath him, causing the bike to angle to something of the order of 45 degrees. The front wheel then grabbed, the bike stood up, and then the front wheel again slid out from under him. He then hit the brakes, but on further questioning said this was only the back brake because he had already lost control of the front. He went straight ahead and remembers nothing from that point of time until he woke in hospital. 9 Some corroboration in respect of the plaintiff's account is provided in a report of a Dr Sengupta dated 22 March 1993. Dr Sengupta was an orthopaedic surgeon and treated the plaintiff in hospital immediately following the accident. The relevant part of the report says that: "Apparently while riding a motorbike he took a corner and lost control because of excessive gravel on the road." 10 The weight of this corroboration is affected by the date of the report, some six years after the accident, and a lack of certainty in the evidence as to how and when Dr Sengupta came to hear of the matters to which I referred. He said it was his practice to see patients whom he had treated in hospital within a week or two of their discharge and at that time to take a full history himself and to record that history in notes taken at the time. Dr Sengupta is retired. He has not seen the plaintiff apparently since 1998 and his notes have been destroyed. 11 In a letter from solicitors which inspired the report of 22 March, Dr Sengupta was asked to detail the dates of attendance on him by the plaintiff. The only date referred to in his report is of 17 May 1988. In the report, however, reference is made to the plaintiff being referred to a doctor David Gronow and Dr Sengupta said in evidence that he had referred to plaintiff to Dr Gronow. It is not clear whether this reference was or was not made on 17 May. 12 Hospital notes which were tendered, and in particular an entry of 30 March, indicate that the plaintiff was to see Dr Sengupta in early May. An entry in those notes of the following day records that an appointment was made for a follow-up visit with Dr Sengupta. 13 The ambulance and hospital records indicate that on 19 March the plaintiff was amnesic to the circumstances of the accident. When Constable Passmore interviewed the plaintiff on 30 March the plaintiff said that all he could remember: "...is that I was taking my time going down Sunnyholt Road and turned left into the road that goes round the Marayong railway station at the service station. The next thing I can remember is travelling down Vardys Road towards Marayong. I overtook a car and that's about all I can remember." Vardys Road is a name sometimes given to Bowmans Road. 14 There was then some questioning by Constable Passmore concerning events earlier in the day, to which I think it unnecessary to refer beyond the last question asking the plaintiff if he was the driver, to which the Plaintiff's answer was, "Yeah, I think I was". 15 In light of all this, the conclusion that I draw, so far as the passage I have quoted from Dr Sengupta's report is concerned, is that it records an account of events given to Dr Sengupta by the plaintiff at some stage after his discharge from hospital, no later than 17 May, and probably given some time in May. 16 Before I continue with the plaintiff's evidence on the circumstances of the accident I should refer to some of the other evidence in the case. I have referred to the fact that Constable Passmore said he looked for and saw nothing on the ground which seemed to him may have caused the accident. I infer from this evidence that he saw no gravel. 17 However, evidence from a Mr Keirnan, an engineer, indicates that, if the plaintiff's account of events prior to the application of his brakes is accepted, the plaintiff probably saw the gravel some 2 to 4 seconds before the bike began to skid. At 80 kilometres an hour the bike would have travelled some 45 to 90 metres in that time and it seems that Constable Passmore did not look far enough to the east of the commencement of the skid mark to see whether there was any gravel in that area. 18 Evidence was also called from a Mr Morgan who was at the time the defendant city engineer. The tenor of his evidence and of one ganger's diary which the plaintiff tendered was that no work was done on the eastern side of Turbo Road on 18 March or during that or the preceding week. Prior to that time, and I think probably weeks prior, there had been some use by the council of shale as fill under what was to be a new footpath on the southern side of Bowmans Road, but there is nothing in Mr Morgan's evidence or the diary to suggest that any gravel on the road was put there by the council on 18 March or thereabouts. 19 The plaintiff gave evidence that he travelled the road regularly - indeed, daily. He knew of the presence of roadworks. He had travelled the road on the preceding day and he had observed no gravel there on that occasion. 20 Given what the plaintiff had said about the accident to the ambulance officers at the time of his admission to hospital, and also to Mr Passmore at the time of the plaintiff's discharge, it was unsurprising that there was a challenge on the part of the defendant to the reliability of the plaintiff's account of events. The plaintiff said that his memory had come back to him in bits and pieces over the period of months following the accident. 21 There was an earlier trial of the issues between the plaintiff and the defendant conducted before Hidden J and there are differences between the plaintiff's account of events given before me and given before Hidden J. Before Hidden J the plaintiff had asserted that at the time of the accident the area of Bowmans Road to the east of Turbo Road was two lanes travelling in each direction. He had adhered to that account at that time, but by the time of the trial before me accepted, as was clearly proved, that that was not the situation and that at the time of the accident the relevant section of Bowmans Road consisted of only one lane in each direction, the duplication of carriageway not having occurred by the time of the accident. 22 Before Hidden J the plaintiff had also said that the new section of roadway to the west of Turbo Road was in such a state of completion that, if barriers had not been erected at the intersection of Turbo Road and Bowmans Road, he would have been able to go straight ahead. It seems to me that this also is an error. Furthermore, the plaintiff had said that the blue metal which caused the collision was on a new surface, not an old surface of roadway, and his motorcycle had stepped down from new bitumen on to the old portion of Bowmans Road. That evidence also was in error. 23 In a plan marked by the plaintiff during the course of evidence before Hidden J the plaintiff had also indicated the position of the gravel in a portion of Bowmans Road which is to the west of what I have referred to as the turn towards the south-west. Clearly, that evidence cannot accord with the evidence of the commencement of the skid mark given by Constable Passmore, particularly if regard is also had to Mr Keirnan's evidence as to the reaction time and distance which would have been involved in the plaintiff seeing the gravel and then the events of losing, regaining and again losing control of the front wheel of the bike. 24 Another inconsistency arises in the plaintiff's estimate or evidence of speed before Hidden J. Before Hidden J the plaintiff indicated a speed somewhat higher than was the tenor of his evidence-in-chief before me. 25 I should record that I did not form an unfavourable view of the plaintiff's demeanour. Indeed, I did not form any unfavourable view of the demeanour of any witness in this case. But the inconsistencies to which I have referred mean that one must treat with a deal of circumspection the plaintiff's claim of a recovery of memory of events as distinct from a reconstruction, conscious or subconscious, of events in a way which would explain the accident and particularly explain it in a way which casts the blame on someone other than the plaintiff himself. 26 There are other possible explanations for the accident. The plaintiff might have been travelling at too high a speed to negotiate the bend. Evidence was adduced from Mr Keirnan directed to rebutting this possibility and his evidence does provide some support for the speed having not been excessive. But, unfortunately from the plaintiff's point of view, Mr Keirnan, while able to calculate a likely speed based upon the length of the skid and some assumption he thought reasonable was quite unable to take account in any appreciable fashion of possible deceleration resulting from the presence of the ditch and, I think it may be said, mound to which I have referred. Thus I do not regard Mr Keirnan's evidence as providing any real support for the plaintiff's evidence of speed. 27 The accident happened, as I have said, at 2 o'clock in the morning. The plaintiff had worked from 3pm to 11pm that day and then gone to his girlfriend's place for some hours. He had ingested some alcohol. A test conducted at the hospital indicated his blood alcohol level was 0.022. It is not clear to me at what time the plaintiff's blood was taken which resulted in that test, but it certainly provides no indication at all that the plaintiff had been travelling with an excess of alcohol in his blood. Nevertheless, it must be recognised that at 2 o'clock in the morning, after some ingestion of alcohol, even if one has been used to working shift work for a period, there is the possibility that the plaintiff was tired and not as alert as he may have been. The evidence of one of the women who had seen him at the corner of Tennyson Road argues in the same direction. 28 I mention these other possible causes not because one could regard them as evidence that the plaintiff's account of the accident was inaccurate, but merely to indicate that there are possible other explanations beyond the presence of gravel on the road. Ultimately determination of the issue of whether there was gravel there depends upon the evidence of the plaintiff. 29 The onus of proof is upon him and the conclusion at which I have arrived is that I am not satisfied to the relevant standard that there was. In arriving at that conclusion I am much influenced by the state of his memory at the time of his admission to hospital and the later inconsistencies and inaccuracies in his evidence of the physical situation at the time of the accident. 30 But I should also say this. The evidence of the ganger's diary and Mr Morgan, whom I accept, also argue against the conclusion that any gravel which was there came from any operations which the council was conducting at the relevant time. Indeed, even had I concluded that gravel was present, I would have taken the view that the plaintiff had not proved that that gravel had come from the council's activities, certainly in any way which bespoke negligence on the part of the council. Passing trucks do drop gravel and photographs show gravel on roads in the area – I refer to the general area, not just that traversed by the Plaintiff – show gravel in a number of places. 31 It follows from these conclusions that the plaintiff's claim must be dismissed. 32 As I have said, there was a trial before Hidden J, and an appeal by the defendant, which succeeded. The Court of Appeal declined to direct judgment in favour of the appellant because it thought that seeing the witnesses would place the tribunal in a much better position than the Court of Appeal to decide whether the respondent's recollection is not only genuine but reliable. The court ordered the trial which occurred before me, and reserved the costs of the first trial to the judge at the retrial. 33 That history indicates that there is no basis upon which I would be justified in not applying the usual rule that costs follow the event. That the plaintiff may accordingly have to pay the costs of two trials is obviously most unfortunate from his point of view, but it seems an inevitable consequence of him being given a second chance at having an assessment of the credibility of witnesses including himself made by someone who saw those witnesses. 34 Accordingly, I order that the plaintiff pay the costs of the proceedings, including of the first trial before Hidden J. I am not asked, and I do not see myself as entitled to make any order for costs of or incidental to the appeal. 35 Exhibits may all be returned forthwith.