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. The plaintiff's background 15The plaintiff was born on xx xxx 1962. He left school at age 14 pursuant to an agreement with his father that he could do so if he had a fulltime job. He worked as a farmhand for a year and then celebrated his fifteenth birthday by embarking on the career of a fulltime shearer. He was able to maintain this employment on a fulltime basis until 2002 when he secured a trial job at the Tongala Abattoir in Echuca. The plaintiff impressed as a boner and was offered a permanent position. He accepted but still did occasional weekend shearing. As he became a better boner he was offered more overtime work and found less opportunity for shearing. 16The plaintiff was married in 1993. His son John is now 21 years of age. Matthew is 19 years of age. The family lives in Deniliquin. 17The plaintiff has an impressive work history. He has effectively been in fulltime employment since the age of 14. Although his wages varied to some degree at the abattoir he was generally earning about $800 net per week in the years before the accident. 18The job of a boner is heavy. Most of the work takes place above shoulder height as, in the plaintiff's case, beef carcasses are stripped as they hang in front of the worker. The plaintiff is not a tall man. 19The plaintiff is right handed. The plaintiff was not a successful student. Reading and writing are generally beyond him although he was suited to the crafts that he was taught at school. 20The plaintiff then is a very unsophisticated man who has toiled in heavy jobs throughout his working life but always maintaining fulltime employment despite his literary limitations. After the accident 21As stated above the plaintiff's main injury is to his right shoulder. He did, however, also suffer a head injury, a broken nose, an injury to his foot and assorted bruising. There are some photographs in Exhibit B that show the extent of some of the injuries. The plaintiff was unconscious for some time after the accident. It is a matter of commonsense that the defendant must have struck him with some force. 22The plaintiff has seen a number of doctors; he has had a good deal of physiotherapy as well as operative intervention. He has had injections to help relieve the pain in his right shoulder but only the first one provided temporary relief. The plaintiff's employer kept his job open for six months but at the end of this period he did not have the capacity to do the required work. He cannot work above shoulder height. The plaintiff has filled in his time with voluntary work and sometimes helping his wife in her small childcare business. The plaintiff has also returned to TAFE to improve his literary skills. He is making very slow progress. 23The plaintiff has sought employment in Deniliquin but has not been successful. The Commonwealth Rehabilitation Service has also not been able to find him a job. The plaintiff has not sought work in surrounding towns because he finds driving difficult. 24The plaintiff did very little housework before his accident, primarily because he worked away from home. He probably does more now although sometimes requires assistance. He takes longer to mow the lawn. 25Dr Honner summarised the plaintiff's injuries as follows: "Whilst walking on a closed racing track at Bathurst, on 9 th October, 2009, Mr James was struck by a cyclist at high speed and suffered the following injuries:- * A fracture of the proximal portion of the right humerus at the right shoulder joint; * A fracture of the nose; * A possible soft tissue injury to the cervical spine; * A possible closed head injury, with transient loss of consciousness." (Exhibit D, page 17). 26Dr Lahz, a rehabilitation specialist, gives the same description of injury but extends the head injury to a "mild traumatic brain injury - PTA duration of 6-7 hours" (Exhibit D, page 62). 27Besides three radiological reports the defendant relied on only one medicolegal report. It is by Dr Smith, an orthopaedic surgeon. Dr Smith's opinion is that the plaintiff has fully recovered, in particular from his shoulder injury. Any other problems are due to pre-existing degenerative change. Dr Smith made this statement: "Passively he has a normal range of movement and a normal rhythm of movement and he is manufacturing weakness in his right upper limb. There is no organic illness that could cause the pattern of weakness that he exhibits." The plaintiff was a patently honest man whose obvious lack of sophistication would have deprived him of the guile to engage in the subterfuge suggested by Dr Smith. I note Dr Smith suggested observation of the plaintiff. If this suggestion was taken up it was certainly not productive of any surveillance being placed before the court. 28In his diagnosis Dr Smith emphasises (page 7 number 5) the degenerative disease the plaintiff has in his rotator cuff and neck. He continues "both of these conditions long pre-date the accident and both could have been aggravated or exacerbated. In my opinion both have recovered." If he means that the degenerative disease has recovered the statement is contrary to the entire concept of degeneration. If he means the aggravation has subsided the conclusion is entirely inconsistent with an asymptomatic plaintiff having constant and continuing pain and limitation of movement since the accident. 29I reject Dr Smith's opinion that the plaintiff has recovered from the effects of the accident. It is a mark of the integrity of counsel for the defendant that he did not suggest to the plaintiff that he was manufacturing his symptoms nor did he advocate any reliance on Dr Smith's opinion. The accident 30I have given the plaintiff's version of the accident above. I should add that in cross-examination the plaintiff was adamant that he had been walking on the right hand side of the road. He did accept that he could have walked on the grass verge and that had he been walking in the opposite direction he would have seen any vehicle, including a bicycle, coming toward him. 31Mrs James gave evidence about the accident. She said that she was also walking on the right hand side of the road. She was with her son Matthew. Their friends were behind and the rear was brought up by the plaintiff and John. She said that it was dark, there were no streetlights or other ambient lighting but yet she was able to see where she was going. There was a sort of "dull" lighting in the area. She always carried a torch but was not using it as she descended the hill. 32Mrs James said that she heard a howling noise, she turned and something went past. She could not see what it was because it was gone and it was too dark. She continued on for about two metres and heard another noise. She turned around and saw her husband in the air and then rolling down the side of the road. She used her torch to inspect her husband's injuries. At first she thought he had lost an eye. An ambulance later arrived and transported the plaintiff to hospital. 33After the collision Mrs James noticed a man lying on the roadway with a bicycle nearby. They were some metres from the plaintiff. The man did not appear to have a helmet nor any form of light. 34Mrs James said that the pedestrians on the road would have created an obstacle to vehicles travelling in a northerly direction. There were pedestrians scattered all over the road. This was the case throughout the walk. 35The most dramatic account of the incident was given by Mr Stephen Aldrick. He is a custom car builder with 15 years of experience as a spectator at the Bathurst races. 36According to him, as the group descended Conrod Straight, he was walking on the right hand side of the road on the fog line with his girlfriend Kathleen to his right on the grass. The plaintiff was directly in front of him, about one metre ahead. Mrs James and their younger son were next to the plaintiff. John James was to Mr Aldrick's left. 37Mr Aldrick said he heard a bus behind him. He turned around and saw three bicycles, at that stage in single file overtaking the bus. He yelled out "Jeez they're going quick" . He then yelled out again, "Jeez, they're going to hit us" . He pushed his partner out of the way. The plaintiff was "collected in the back" and carried six or seven metres forward. The cyclist landed two or three metres away from the plaintiff. 38Mr Aldrick assessed the speed of the cyclists at about 70kph. He said the shuttle bus was travelling at 60kph and the bicycles were overtaking the bus. I very much doubt that the bus was travelling at 60kph amidst the pedestrians. To the extent that the estimate of speed of the bicycles was based on that of the bus I do not think it is reliable. Like other witnesses Mr Aldrick heard a howling sound which he associated with spokes of the wheels. 39Mr Aldrick also said, under cross-examination, that he heard one of the riders making a noise like "weeee" . He described the cyclists as "yahooing" . 40A fairly direct attack was made on Mr Aldrick's credit. It was suggested that his evidence was being tailored to assist the plaintiff. I reject the suggestion. His account was certainly more descriptive but I do not think it was dishonest. Unlike other witnesses, Mr Aldrick saw the cyclists coming toward him and he was no doubt startled and shocked by what he saw. If there is any exaggeration in his description I accept that it was not conscious but simply a product of the events occurring around him. 41Mr Aldrick said the cyclist did not have any lights. 42The final witness called by the plaintiff on the events of the evening was Mr John James, the plaintiff's eldest son. His evidence was generally consistent with that of his father and mother. There was some variation in the description of the location of each person in the group. He did add one significant factor; he said that he and his father were jointly carrying a duffel bag. After the bicycle collided with his father, because they were both holding onto the bag, he too was pushed forward and went down on his knees. 43Mr James said that after he had recovered and tried to call Triple-0 he then noticed a shuttle bus and a cyclist overtaking it. He could not estimate their speed. His timing in relation to the shuttle bus is different to that of Mr Aldrick. I do not see the difference as any more than different reactions and recollections of people describing events that happened over a very short period of time. Mr James said that he heard a "whirring" noise associated with tyres running quickly over a road surface. He also said that one bike flew past on the left "at a tremendous speed" . This evidence was not challenged. 44The defendant gave evidence. He is now 30 years old. 2009 was his fourth trip to the Bathurst races. He camped in the grounds of a local resident. He was with two friends. They were Simon Law and Damian Kain. His father and a friend were also camping in the same garden. 45Mr Kain was making his first trip to Bathurst. 46After the completion of the day's motoring events the defendant and Mr Moore took Mr Kain to the top of the mountain to show him the " scene ". They were on push bikes. The defendant said that he and Mr Law had camping lights which fitted on their heads. The defendant's light gave him about 5 metres of illumination provided he was facing forward. 47The three friends spent some time in the entertainment area. After about two hours they decided to return. Because Mr Kain wished to see the whole of the track they decided to carry on in an anticlockwise direction. 48The defendant said his recollection was vague. This is not surprising as he was also injured in the accident. He had significant skin removed from one side of his face but, more importantly, he suffered a "large concussion" . The defendant was, however, adamant that as he went down the hill he rode on the left hand side and frequently applied his brakes as he descended. As I understood him he applied his brakes as necessary to control his speed going down the mountain. 49The defendant's last recollection before the accident was being on the left hand side of the road and seeing a group of pedestrians ahead of him. Damian, who had been ahead of him, was out of sight. He did not know how fast Damian was going but his best "guess" was that he was travelling at 20 to 30 kilometres per hour. He has no recollection of the collision. He next remembers being in Bathurst Hospital. 50The defendant said the only bus that he had come across on the descent was one which had overtaken him at the top of the mountain. 51The defendant did not present in a dishonest or defensive manner. There was nothing about his demeanour which would lead me to reject his evidence. I do, however, reject certain parts of it, in particular concerning his speed and the side of the road on which he was travelling. The defendant frankly admitted that his memory was vague (although definite on some points) and this is no doubt due to his serious concussion. I am satisfied that whether due to the passage of time or the effects of the concussion, his recollection is not reliable. I prefer the evidence of the plaintiff and his witnesses where it is contradicted by that of the defendant. 52Mr Kain is currently in the Navy serving off the coast of Papua New Guinea. I do not draw any inference from the defendant's failure to call him as a witness. 53Mr Law gave evidence on the telephone. He is a funeral director in the Ulladulla area who unfortunately needed to urgently deal with the victim of an alleged murder. No objection was taken to him giving evidence on the telephone. Fortunately there was no issue calling for an assessment of his demeanour. 54Mr Law did not see the accident because while he was riding his cycle down the mountain in a "very cautious" manner, the defendant drew away from him and he had lost sight of him by the time the accident happened. It follows that Mr Law could not assist on the location of the plaintiff or the defendant immediately before the collision. 55Mr Law did say that he had provided the defendant with a headlamp which he had seen illuminated when they left the top of the mountain. When Mr Law came upon the accident he ministered to the unconscious defendant. Once the defendant had been removed by ambulance he searched for, but could not find, the headlamp or the defendant's beanie. 56I think on balance the defendant probably did have a headlamp on but it is another question as to whether it was effective or could have performed a task of a warning beacon to persons below the cyclists. It certainly did not provide the defendant with effective illumination of the road ahead. Liability 57In final addresses counsel for the defendant expressly made no submissions on the absence of his client's negligence. He chose, instead, to concentrate on contributory negligence. Because there was no concession on primary liability I must still examine and decide the issue. 58I am satisfied that the race track was effectively given over to the public after 5.30pm. Although the use of some vehicles was allowed I have no doubt that these vehicles would have been driven with consideration for the many hundreds of people walking the track. No doubt their speed would have been limited and their use of headlights and hazard lights would have assisted in identifying their presence. A vehicle driving around a track slowly is a different hazard to a cyclist 'hurtling' down a hill without apparent regard for the masses of pedestrians scattered across the track. The fact that it may have been dark does not assist the cyclist in any way. To the contrary, it only adds to the extent of his careless conduct. 59I am also satisfied that because the track had effectively become a walkway that it is of no significance whether the plaintiff was walking on the right or left hand side of the road and, as opposed to the grass verge, on the roadway itself. 60I do not have any doubt that the bicycles were travelling at a high speed in the circumstances. It is to be remembered that they were travelling down a very steep hill. Even at the defendant's estimate of 20 to 30 kph the speed was too high. I am satisfied however that the speed of the cyclists was well above the defendant's " guess ". 61In terms of Section 5B of the CLA I am satisfied that a reasonable cyclist would foresee that travelling at speed down a hill, in poor light, without means of warning and amongst hundreds of pedestrians, there was a risk of colliding with one or more of those pedestrians. I am further satisfied that the risk of collision was not insignificant and that a reasonable cyclist would have taken precautions to avoid the risk. In this case the cyclist could have travelled slowly, perhaps even walked with his bicycle down the hill or sounded a bell warning of his approach. 62In terms of Section 5B(2) I am satisfied that there was a high probability that harm would occur and that the harm occasioned by a pedestrian being struck by a speeding cyclist would be likely to be serious. The burden of taking precautions to avoid the harm was slight indeed. 63In relation to causation (Section 5D of the CLA) I am satisfied that but for the negligent riding of the cycle by the defendant the plaintiff would not have suffered the serious injury that has befallen him. Contributory negligence 64The primary allegation against the plaintiff was that by walking on a public road he negligently exposed himself to a risk of harm by other road users. His negligence was evident from his walking on the road surface (as opposed to the grass verge) in the dark and with his back to oncoming traffic. I was reminded of the applicability of Sections 5D and 5R of the CLA. It was submitted that but for his manner of walking he would not have been injured. 65On the basis of my conclusion that the track had been made available for the use of pedestrians I am of the view that there was no negligence on the plaintiff's part in walking on the right hand side of the road, walking against the flow of traffic or not walking on the grass verge. The roadway had become a footpath and pedestrians were free to use it according to that description. As I have already said I acknowledge that vehicles were also allowed on the roadway, but I am satisfied that their use would have been in circumstances which catered for the safety of the hundreds of pedestrians in their paths. 66I am also satisfied that had the plaintiff been walking in the opposite direction, the defendant's headlight would not have provided a warning sufficient to enable the plaintiff to take evasive action. If the plaintiff could have made it out and discerned an oncoming bicycle he would have had little or no time to take action let alone come to any reasonable decision as to what that action might be. 67I do not accept the defendant's application of the 'but for' test to the current facts. It is akin to suggesting an entirely innocent motorist injured in an accident caused by another, negligent motorist, is guilty of contributory negligence because but for being on the roadway he would not have been injured. Damages 68The plaintiff was a hardworking man whose life was clearly dominated by his work and by his family. The former has effectively been taken away from him. He may well, after much studying, obtain some literary skills. They are unlikely to assist him in finding stable employment. 69The plaintiff has endured a good deal of treatment, including surgery, and more treatment will be needed probably for the rest of the plaintiff's life. His right arm is not useless but it is severely limited in its capability. The plaintiff is in constant pain and relies on medication to help him sleep and to dull the ache during the day. 70Taking these matters into account I think non-economic loss should be assessed at 30% of a most extreme case. This equates to $119,500. 71For past economic loss I am satisfied that the plaintiff has been totally incapable of employment since the accident. Dr Lahz said: "Due to pain and restriction of the right shoulder, Mr James is permanently unfit for both of his pre-injury occupations of shearing and boning." 72Dr Honner was of the same opinion (Exhibit D, page 6) although he does suggest that the plaintiff is fit for "selected light duties" . 73The parties agreed that the plaintiff's net wage at the date of the accident was $800 per week. His evidence was that his earnings were affected by the number of beasts being processed by the abattoir. He said that at the time of his injury the processing rates were low. There was no evidence about the levels of processing since the plaintiff's accident so that I do not think I can increase his wage over the period of past economic loss. 74There have been 108 weeks since the accident so that the calculation of past economic loss is: 108 x 800 = $86,400.00. Lost superannuation benefits at 11% of the net loss are $9,504. 75For purposes of Section 13 of the CLA I am satisfied that but for the accident, having regard to the plaintiff's work history, he would have continued to work as a boner or in some similar occupation until the age of 65. I am satisfied, on the uncontradicted evidence of the plaintiff, that even though the work was very heavy it was still being performed by elderly people at the abattoir. I see no reason to adjust the application of the normal vicissitudes of 15%. 76Although I have awarded the plaintiff full past economic loss I agree with Dr Honner that he is fit for selected duties. He will have difficulty obtaining these duties because of his lack of education and the absence of opportunity where he lives and in the surrounding area. If he does find work there are also likely to be long periods of unemployment. 77I also need to take into account, however, that the plaintiff is likely to continue to seek work and, as he did before his accident, to apply himself to whatever employment he is able to find. On this basis I assess the plaintiff's lost capacity to earn in the future at $550 per week. 78The plaintiff is now 49 years of age so that he has another 16 years remaining in his working life. On the 5% tables and reducing the result by 15%, the calculation is: 550 x 579.5 x 0.85 = $270,916.25. Lost superannuation benefits at 11% of the net loss are $29,800.78. 79In relation to future assistance, the plaintiff seems to be carrying out more duties at home than he did before the accident. That does not of course mean that he has no need for assistance. Dr Lahz assessed his needs as two hours per fortnight but qualified that assessment as being "in the absence of his wife" . 80Dr Darveniza said: "given his chronic shoulder problem, from time to time he might require professional assistance for duties in the yard on an ad hoc basis, rather than regularly" . 81Dr Honner thought the plaintiff required "three hours per week domestic and handyman type assistance at home, permanently into the future" . 82I think Dr Darveniza is closest to providing the most accurate assessment. The plaintiff is slower in what he does but he does do the work, sometimes with the help of his son. There will no doubt be times when a family member is not available to assist and the work is simply too heavy for him to do. I think an allowance of one hour per month at $30 per hour is appropriate. 83The plaintiff's life expectancy is 36 years. At $6.92 per week the calculation on the 5% tables is: 6.92 x 884.8 = $6,122.81. 84Past out of pocket expenses were agreed at $14,746.45. Future expenses of $8,848 were claimed based on $10 per week for medication and physiotherapy. There is little evidence justifying continuing physiotherapy but the need for medication has been established. I allow $5,000. 85A summary of the damages I have awarded is as follows: Non-economic loss $119,500.00 Past economic loss $86,400.00 Past lost superannuation benefits $9,504.00 Future economic loss $270,916.25 Future lost superannuation benefits $29,800.78 Future domestic assistance $6,122.81 Out of pocket expenses $14,746.45 Future medical expenses $5,000.00 Total $541,990.29 86I make the following orders: (a)Verdict and judgment for the plaintiff against the first defendant in the sum of $541,990.29. (b)The first defendant is to pay the plaintiff's costs of the proceedings. 87I will hear submissions from the parties in respect of the above costs order arising from any offers of compromise that have been made. ********** 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. Decision last updated: 21 November 2011