James v Whiteman [2011] NSWDC 178

District Court New South Wales

Medium Neutral Citation: James v Whiteman [2011] NSWDC 178 Hearing dates: 17/11/11, 18/11/11 Decision date: 21 November 2011 Jurisdiction: Civil Before: Elkaim SC DCJ at Wagga Wagga Decision: See paragraph 86 Catchwords: Personal injury, collision between a cyclist and a pedestrian. Legislation Cited: Civil Liability Act 2002 Category: Principal judgment Parties: Mark John James (Plaintiff) Gavin Whiteman (First Defendant) Representation: I Roberts SC and J Ryan (Plaintiff) D Wilson (First Defendant) Walsh & Blair Lawyers (Plaintiff) Moray & Agnew Lawyers (First Defendant) File Number(s): 2011/67550 Publication restriction: No

Judgment 1In October of each year motoring enthusiasts gather in Bathurst to witness a motor race which adopts local roads as its track. The event occurs over a weekend with preliminary events and other races before the main race on the Sunday. Spectators gather in large numbers, often camping or residing in caravans and motor homes, at sites allotted to them around the track (Exhibit A, page 26). 2At about 5pm, after completion of the day's events, the track is opened to the public but with some restrictions. The only vehicles allowed on the road are service vehicles, shuttle buses, taxis and those belonging to residents going to and from their homes that are situated alongside the track. All the vehicles are required to travel in an anticlockwise direction. 3The southern most portion of the track is at a much greater altitude than the northern most. The track climbs to what is known as Mount Panorama and then descends from Forest Elbow along Conrod Straight, eventually flattening out toward the northern end of the track. The descent from Forest Elbow is very steep. This is evident from the photographs in Exhibit A, although I do not make any specific assessment of the gradient based on these photographs. 4Once the track has been opened to the public the practice of the patrons appears to be to take an evening promenade around the circuit. They walk in both directions stopping here and there to chat about the day's events and perhaps discuss the scene of incidents that have taken place. 5Some persons ride bicycles on the track and others use skateboards and scooters (non-motorised). 6The plaintiff has two sons. The eldest, John, is a motoring enthusiast. I gather the balance of the family is at least interested in motor racing. Since 2007 the plaintiff and his family have rented a motor home and driven to Bathurst on the Thursday before the weekend of the races. They have set up camp in Motor Homes Park (Exhibit A, page 26, reference D9). The family watches the events during the day, returns to their motor home for a barbecue and then at about 7pm joins other members of the public in walking around the track. 7On 9 October 2009, a Friday, conforming with their now established custom, the plaintiff and his family set off for their evening walk at about 7 or 7.30pm. They initially walked in a northerly direction. They joined Stephen Aldrick and his partner Kathleen at Hell Corner. The now extended group of six continued in a southerly direction along Pedders Mountain Straight. They wound their way up the mountain eventually coming to Forest Elbow and then commencing the descent down Conrod Straight. 8The plaintiff had consumed a can of beer with dinner. Other members of the family had drunk a little more. They were not under the influence of alcohol. 9At about the point marked with an "X" on page 26 of Exhibit A the plaintiff was walking alongside his son John. The others were in front. The plaintiff could not recall whether John was to his right or to his left but he did recall that he was on the right hand side of the road (as he was walking) and he was following a white line that he identified as a fog line. 10The plaintiff heard howling and screaming as something went past on his left hand side. A moment later something else happened but he has no memory of precisely what that was. He next remembers being in an ambulance and then at Bathurst Hospital. What had happened was that he was struck from behind by a bicycle ridden by the defendant. 11The plaintiff now seeks damages from the defendant arising from this collision. The plaintiff says the defendant was negligent in the manner he rode his bicycle and this negligence has caused significant injury and loss to the plaintiff. 12The action was originally commenced against two defendants. It was discontinued against the second defendant. I will refer to the first defendant as " the defendant ". The action is governed by the Civil Liability Act 2002 ("the CLA"). 13The plaintiff's injuries are primarily to his right shoulder. He has not been able to return to work and he claims damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses and future paid care. 14The defendant denies he was negligent. He alleges contributory negligence and also challenges the extent of the plaintiff's damages.