District Court New South Wales Medium Neutral Citation: Maric v The Nominal Defendant [2012] NSWDC 69 Hearing dates: 30/04/12-03/05/12, 07/05/12-09/05/12 Decision date: 16 May 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Verdict for the defendant. Verdict for the cross-defendant on the cross-claim Catchwords: Uninsured vehicle, location of accident, contributory negligence. Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227 Rabay v Bristow [2005] NSWCA 199 Ryan v Nominal Defendant (2005) 62 NSWLR 192 Category: Principal judgment Parties: Stefan Maric (Plaintiff) The Nominal Defendant (Defendant) Geoffrey William Morrissey (Cross Defendant) Representation: H Marshall SC and N Ghabar (Plaintiff) AJJ Renshaw, GJ Stanton and B Adam (Defendant) In Person (Cross Defendant) NSW Compensation Lawyers (Plaintiff) Hunt & Hunt (Defendant) In Person (Cross Defendant) File Number(s): 2009/00338297 Publication restriction: No Judgment 1On 6 April 2007 the plaintiff was injured while riding his motorcycle. He says his injuries were caused by the negligence of a Mr Geoffrey Morrissey who was riding a separate motorcycle. Because Mr Morrissey's motorcycle was uninsured the plaintiff has sued the Nominal Defendant under Section 33 of the Motor Accidents Compensation Act 1999 (the "MACA"). The Nominal Defendant has in turn cross-claimed against Mr Morrissey, relying on Section 39 of the same Act. 2The plaintiff seeks damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses, past gratuitous care and future commercial care. 3The defendant conceded that the plaintiff was injured in an accident involving a motorcycle but denied virtually every other aspect of the plaintiff's claim. The denial extended to the location of the accident. This was said to be the Old Western Road at Rydal, near Lithgow. Ultimately the defendant accepted this road was a public road but continued to deny that the accident had occurred on this road. 4In an Amended Defence filed on 3 April 2012 the defendant relied upon Section 5L of the Civil Liability Act 2002 (the "CLA") to defeat the whole of the plaintiff's claim. When it became apparent, almost at the end of the hearing, that Section 5L could not be relied upon in a MACA action, this defence was abandoned. 5During final submissions I allowed the defendant to file a Further Amended Defence on 9 May 2012. In this pleading further allegations of contributory negligence were added. I thought the new particulars reflected the issues between the parties and had been well ventilated through the hearing. 6Despite this conclusion I gave leave to the plaintiff to re-open his case if he wished to call any further evidence to meet the allegations. No further evidence was called by the plaintiff and submissions continued. Learned senior counsel for the plaintiff said "We're ready to meet it" (T 390.21). My decision to allow the filing of the Further Amended Defence is the subject of a separate judgment, which I delivered on 9 May 2012. 7The cross-defendant, Mr Morrissey, was self-represented. Although given the opportunity he took almost no part in the proceedings. He was, however, called as a witness by the plaintiff. After giving evidence he asked to be excused. He was informed of the day when addresses would commence and invited to address the court. He declined the invitation and did not return to court. The plaintiff's background 8The plaintiff was born in March 1970. He attended school in Sydney. When he was 15 his mother passed away leaving him upset and depressed at her loss. His father soon moved to Slovenia, placing the plaintiff in the care of his grandparents. 9The plaintiff completed Year 10 in 1985. He returned to Year 11 the following year but left school during the year. 10In 1987 the plaintiff commenced a relationship with Ms Deborah Hogg. The couple had two children, the first born in December 1998 and the second in November 2005. 11The plaintiff and Ms Hogg purchased a home together in 2001. At this time the plaintiff made a suicide attempt when apparently overwhelmed by the financial commitment he was undertaking. 12Ms Hogg described her relationship with the plaintiff as "stormy". They separated in about 2005, some months after the birth of their second child. Ms Hogg nevertheless kept in constant contact with the plaintiff, visiting him almost every day. When asked why she did so she said: "More so to check on him I suppose. I still cared about him." 13This sentiment has continued to the present time. A reconciliation was attempted after the accident in 2007 but Ms Hogg and her children moved out again in 2008. There was another short period when Ms Hogg returned to the plaintiff's residence as a requirement of his discharge from a psychiatric unit in Campbelltown, also in 2008. 14The plaintiff said Ms Hogg left him because "she was just sick of me needing her". His evidence was to the effect that their separation was caused by the accident (T 32.36). This is not correct. 15The plaintiff started working as a carpet layer in 1993 and set up his own business about four years later. He was still engaged in this trade when he had his accident, although his level of work had already markedly decreased. 16In June 2006 the plaintiff was "showing off" on his motorcycle in such a fashion that he fell to the ground and cut open both his knees. He received treatment but said that by April 2007 he had generally recovered. 17In December 2006 the plaintiff had another accident involving a motorcycle that fell onto his leg. He required 16 stitches but has had no ill effects from this injury. 18The plaintiff's pre-accident tax returns are in Exhibit G. The summary discloses a haphazard pattern of income peaking in 2004 but then dramatically declining to 2005 and then halving again in 2006. The plaintiff does not seem to have worked very much immediately before the accident. This may have been a product of the injury to his knees but this was not the plaintiff's evidence. 19Although the plaintiff did not give evidence himself about the matter, it appears that he had a problem with alcohol prior to the accident but had generally overcome it by 2007. He did, however, remain a frequent user of cannabis. The accident 20The plaintiff's version, in his oral evidence, was as follows. On 6 April 2007, which was Good Friday, the plaintiff worked in the morning. In the afternoon he and two friends, Mr Morrissey and Mr Shane Bridge, travelled together to a campsite near Lithgow where they met a number of friends. The intention was to spend the weekend camping and riding their motorcycles. The plaintiff said that they arrived at the campsite at about 4.30pm. Once the motorcycles had been taken off the van the plaintiff donned the appropriate apparel and set off on his own for a ride. He drove along a gravel road and eventually approached the corner that can be seen in Exhibit A. 21The plaintiff said that this gravel road is the Old Western Road. He did not know that at the time of the accident but said he is now aware of that fact (T 23.41). The Statement of Claim refers to the accident having occurred on the Old Western Road, Rydal in the State of New South Wales. The defendant accepted that there is such a road and it is a public road. The defendant, however, strenuously denied that the plaintiff had proved that the accident had occurred on this road. I will return to the arguments and evidence on this point below. 22Just before the plaintiff took the corner another motorcyclist came "flying past" and "he's locked it up in front of me, slid the back wheel out, and left me nowhere nothing to do but try and stop before I hit him" (T 24.5). The plaintiff "applied the brakes deliberately and I just instinct made me slam the brakes on and yeah I come off the bike, got thrown over the handlebars." (T 24.10). 23The other motorcycle apparently was travelling too quickly for the corner and slid in front of the plaintiff. 24The other motorcyclist was Mr Morrissey. He was riding a borrowed, uninsured and unregistered motorcycle. He did not have a motorcycle licence and he was an inexperienced rider. 25Mr Morrissey's identity was not disclosed by the plaintiff either to the police or to the Nominal Defendant until 2009. The plaintiff commenced his claim against the Nominal Defendant based on the accident having been caused by an unidentified vehicle. The plaintiff said he took this approach because he knew Mr Morrissey was facing criminal legal proceedings and he did not wish to aggravate his friend's position before the court. 26The plaintiff's solicitors arranged a conference with a barrister, Mr Peter Frame. During the conference the plaintiff "accidentally" made it known that he was aware of the other rider's identity. Mr Frame advised the plaintiff to make a full disclosure of the facts. This exchange occurred between me and the plaintiff: "HIS HONOUR Q. Do you mean that if it hadn't accidentally come out, you would never you had no intention of disclosing Mr Morrissey's identity? A. That's right." (T 143.7) 27I observed to Mr Marshall that I thought the plaintiff's evidence was capable of giving rise to an inference that had he not accidentally told Mr Frame about Mr Morrissey then, if the claim proceeded to finality, either through the Motor Accident Assessment Service or through the court, the plaintiff's perpetuation of his lie about the identity of Mr Morrissey would also have continued. This inference was in turn capable of having a significant impact on the plaintiff's credit. 28As mentioned above Mr Morrissey gave oral evidence on behalf of the plaintiff. 29Mr Morrissey said that the plaintiff had picked him up from his home. He did not remember when Mr Bridge joined them but the three friends travelled together in the plaintiff's van to Lithgow. On the way a carton of beer was purchased. Mr Morrissey drank at least six cans. 30Mr Morrissey said that upon arrival at the campsite the motorcycles were unpacked and that the plaintiff had ridden off first. Mr Bridge followed him. Mr Morrissey had trouble starting his motorcycle and he was delayed by some minutes. He said he travelled along a winding dirt road and eventually saw the plaintiff ahead of him. He caught up to the plaintiff. He said: "A. My recollection is that I nearly went off, like, I was heading straight for a tree. That's when I would have, pretty much, hit my back brakes, and then, just kept going." (T 196.1). 31A little later Mr Morrissey added: "Q. Thank you. What did you do in relation to the control of your bike, as you attempted to negotiate that corner? A. I could say I didn't have full control of the bike. And I came really close to crashing myself, that's my recollection of the. Q. What did you do, to try and regain full control of your bike? A. I I know it was a bit of luck, I was, like, I was not in control, so I was. Q. Did your bike have brakes? A. Yes. Q. Did you do anything to the brakes, in that moment? A. Yeah, I I hit the back brakes, when I thought I was going to hit a tree. Q. What did your bike do, in response to that pressure applied by you to the back brakes? A. Back wheel locked up. Q. At that point, where was Stefan? A. I can only say he was behind me." (T 196.26). 32Mr Morrissey said that he cut the plaintiff off (T 199.30). 33Mr Morrissey said he then noticed that he was riding by himself because there was no noise behind him. He stopped and turned around and saw the plaintiff's motorcycle on the ground. He returned toward the motorcycle and came upon the plaintiff standing up and complaining that he had "done his shoulder". Mr Morrissey said that Mr Bridge was already there and a Mr Terence Hanks arrived soon after. 34In relation to the problems he was having in the criminal courts at the time Mr Morrissey explained that he was on bail and the conditions required him to be of good behaviour. He thought that he might have been in contravention of these conditions by "riding a motorbike while under the influence". He said that the plaintiff would have been aware of his bail conditions. The plaintiff had given evidence in the associated proceedings. 35The bulk of the cross-examination of Mr Morrissey arose from two statements he had given to insurance investigators. 36The first statement (Exhibit 17) is dated 25 June 2008, which is before the plaintiff disclosed the identity of Mr Morrissey. Parts of the first statement are plainly untrue, in particular concerning Mr Morrissey's involvement. On this version he did not go riding after arrival, but rather set up a tent. He does, however, say in paragraph 10: "Stefan went off riding with a few of the other guys". 37In his second statement, which is dated 15 June 2010, Mr Morrissey disclosed his involvement. Paragraph 16 is important. It commences as follows: "We pulled up got the bikes out and before we set up camp we decided to go for a ride. There was myself, Stefan Maric and Shane Bridge and we rode off back towards the main road where we had just come from." 38A little later in the same paragraph Mr Morrissey continues: "We rode up a small track that leads onto the road and we turned right to ride up the road we had come along. The other two got onto the road and I was getting use to the bike. The other two took off so I then drove up onto the road and headed in the same direction as them. I rode the bike up to the others and I drove into the second corner which was a right hand bend heading back out to the main road." 39In paragraph 17 Mr Morrissey says: "I came up behind them and I realised I was travelling too quickly. I had trouble with the brakes on the bike and before I could slow the bike down I had overtaken them on the left hand side this being on the outside of the corner. I could not say how fast I was travelling but it was not excessive. I travelled up the road a bit further and I realised the other two were not with me." 40Even if Mr Morrissey's statement in paragraph 17 that he had "overtaken them on the left hand side" is in error about the side on which the overtaking took place the balance is significant because Mr Morrissey is suggesting that he had caught up with, and overtaken, more than one motorcycle. 41In paragraph 31 Mr Morrissey says that in June 2008 he was contacted by an investigator. He telephoned the plaintiff. He continues: "Stefan told me he had made a report where he blamed an unknown vehicle as causing the accident". He continues in the next paragraph: "He informed me that he had told the Investigator that I was not involved with the accident and to tell them the same. He told me he did this to keep me out of it as he knew I was on bail and he didn't want me locked up." 42Under cross-examination Mr Morrissey was adamant that paragraph 32 was incorrect in that he maintained that it was his idea to be "kept out of it" rather than the plaintiff's. On this basis the plaintiff's assertion that he decided to keep Mr Morrissey's name a secret is brought into question. After the accident 43The plaintiff walked back to the campsite. Two other persons wheeled his motorcycle. An ambulance had been called. The plaintiff was taken to Lithgow Hospital and later transferred to the Nepean Hospital in case he had suffered a spinal injury. His principal injuries were to his right shoulder and left wrist. 44Both of these injuries have continued to affect the plaintiff. He has not had much treatment but still feels pain and has difficulty with work. According to the plaintiff the latter incapacity has led to a severe depression, which in turn has made him, at times, suicidal. In May 2007 he was admitted to Campbelltown Hospital. There was a further admission in June 2008 which resulted in a referral to Waratah House which is a psychiatric unit attached to the hospital. 45As noted above, Ms Hogg returned to live with the plaintiff after the accident but the reconciliation did not last. When asked why she moved out Ms Hogg responded: "A. I couldn't live with him anymore basically, he was always angry and frustrated and yelling a lot and just, yeah, it wasn't a good environment to be in with the children as well." (T 250.28). 46Ms Hogg's reason is consistent with her description of their relationship and the reasons she had left in 2005. 47The plaintiff has consulted a general practitioner and orthopaedic specialist and also seen a psychologist. He has had a number of medico-legal appointments. The defendant has not served reports from Dr Harrison (orthopaedic surgeon) and Dr Marsh (occupational physician). I infer that the contents of these reports would not assist the defendant's case. 48The plaintiff said that his attempts to return to work as a carpet layer had not been successful due to his injuries. The plaintiff relies on Centrelink payments for his income. 49It was initially put to the plaintiff that there were no records of any work done by him following the accident. This position changed after a 'call' led to the production of the documents that came to form Exhibit 14. This exhibit contains a number of invoices in respect of work done after the accident. The plaintiff said that he had been paid all of the amounts claimed. 50The bundle of invoices is not complete. This is evident from the invoice numbers suggesting a number of missing invoices. The parties agreed that there was reason for this that should not lead to any adverse inference against the plaintiff. It is possible to conclude, however, that between 13 November 2007 and 16 August 2008, over which period 25 invoices were issued, that the plaintiff was not regularly working in his business. The same observation can of course also be made about his pre-accident activities. 51The plaintiff said that he does very little at the moment, often remaining in bed. He said he rarely showered because "I just don't get out of bed often enough. I don't think of getting in the shower." (T 38.41). 52He added that he also very rarely leaves home because he has no reason to do so. Ms Hogg visits often and does all of the domestic duties that are required including mowing the lawn. 53Ms Hogg confirmed her involvement in domestic assistance and relied on the schedule on page 5 of her statement dated 7 October 2009 (Exhibit D). The only challenge to this evidence was in the following question: "Q. Might you not be disposed to somewhat exaggerate the amount of care you need to give him? A. No." (T 258.46). 54The defendant's case was apparently not so much a denial of the plaintiff not doing any domestic activity or of the contribution of Ms Hogg but rather a challenge to the cause of the plaintiff's inactivity. 55I would add at this stage that Ms Hogg was an impressive witness who despite many years enduring a "stormy" relationship with the plaintiff, characterised by his fits of anger and frustration, had nevertheless maintained an affection for him which continued by way of her maintaining contact between herself and her children and the plaintiff and also providing the almost daily services which she continues to render. 56Ms Hogg was firmly of the view that the plaintiff was depressed and that this condition had developed after the accident. She said "A. Well, he, he suffers from depression. Basically, I've seen the changes in him. I've known him for 24 years. I've seen how things have changed." (T 259.2). The medical reports 57The plaintiff's medical reports are contained in Exhibit F. The first thing to be noticed is that the treating reports do not extend beyond August 2008. All of the more recent reports are of a medico-legal nature. Having said that the plaintiff does obtain significant support from the medico-legal experts, in particular in relation to the physical nature of his injuries. 58Dr Viglione was the orthopaedic surgeon that the plaintiff's general practitioner referred him to. It was Dr Viglione who identified the fracture in the plaintiff's left hand. 59Dr Viglione provided a fairly positive prognosis in April 2007, which is as follows: "I expect both his shoulder and his hand to settle over the next four weeks but even then he will not be normal. It will take several weeks yet before he feels that he is making worthwhile progress. The physiotherapy would certainly help him in the meantime." 60On the plaintiff's case Dr Viglione's prognosis was unduly optimistic. Unfortunately Dr Viglione has been not been asked to update his opinion. 61The plaintiff is, I think, entitled to draw some support from the report of Dr Lodin, his general practitioner. In his opinion, which is on page 107 of Exhibit F, Dr Lodin notes that the plaintiff's injuries "were the source of significant pain and limitation" and that "the patient displayed symptoms of injury related depression and was referred for counselling". Once again there is no recent report from Dr Lodin to chart the plaintiff's progress and any treatment. 62The psychologist that Dr Lodin referred the plaintiff to was Mr Peter Tingle. His report is at page 104 of Exhibit F. The report does confirm the plaintiff's difficulties with work and pain but is necessarily limited by its brevity and age. I also note that the plaintiff said he derived little benefit from the sessions with Mr Tingle. 63Dr Bodel, an orthopaedic surgeon, describes the shoulder injury as a "complete acromioclavicular joint dislocation of the right shoulder" and the wrist injury as a "flake evulsion fracture over the dorsum of the left wrist Triquetrum". (see 115 of Ex F). Dr Bodel also refers to head, neck and back injuries but these have not played any real part in the case. Dr Bodel, in his two reports, is of the view that the plaintiff cannot work as a carpet layer but is capable of work in alternate trades. He suggests retraining. Dr Bodel is also of the view that the plaintiff requires domestic assistance "for household maintenance and cleaning activities". His suggestion of assessment by an occupational therapist was apparently not taken up. 64I note the view of Dr Ting (Exhibit F, page 120) that the plaintiff "demonstrates a real earning potential of $386.40 gross per week". This is more than he was earning in either of the two years before the accident. 65The most recent orthopaedic opinion is from Dr Dixon (Exhibit F from page 168). Dr Dixon's diagnoses are similar to Dr Bodel although he does add a more detailed description of neck and back injuries. His comments on fitness for work and domestic assistance are also consistent with those of Dr Bodel. 66The plaintiff's orthopaedic injuries are the basis for the assessment by Dr McGroder that the plaintiff has a degree of permanent impairment as a result of the injury caused by the motor accident of greater than 10%. It is this finding which provides the entitlement to non-economic loss under Section 131 of the MACA. 67I do not think there is much dispute about the plaintiff's physical injuries. He has frank injuries to his right shoulder and left wrist and, consistent with the views of Drs Bodel and Dixon, they continue to affect him and are likely to do so on a permanent basis. They impede his capacity to work, in particular as a carpet layer. 68The plaintiff's psychiatric state is more difficult to assess. The plaintiff has tendered three medico-legal reports from Dr Morse, a consultant psychiatrist. The defendant tendered the report of Dr Roberts, also a psychiatrist. Objection was taken to the report. After considering some observations that I made, having read the report, the tender was withdrawn (T 285). 69For purposes of the MAS assessment the plaintiff was examined by a Dr Newlyn, a psychiatrist. Dr Newlyn had arrived at a zero percentage assessment of psychiatric injury resulting from the accident. The defendant tendered the report of Dr Newlyn which, after considerable argument, I admitted. The argument stemmed from the plaintiff's inability to cross-examine Dr Newlyn because he was not compellable to give evidence (MACA Section 59B). I think this fact is important although as I said in my separate judgment I did not think it affected its admissibility but should rather be taken into account in assessing the weight of the report. 70Although there are three reports Dr Morse has only seen the plaintiff on one occasion, 7 April 2010. The plaintiff told Dr Morse about the incident in about 2001 when the plaintiff took an overdose of painkillers. He also, however, recorded this history: "No other crises or problems in his life". Dr Morse's initial diagnosis was of Major Depression with Melancholia. Dr Morse did have a history of the plaintiff's "heavy use of marijuana". He noted that "it is possible that difficulties in the relationship may be due to excess use of marijuana in particular with periods of absence and withdrawal causing anger and irritability". These manifestations are very similar to the description given of the plaintiff by Ms Hogg. 71Dr Morse went on to say that he did not think the drug history was the "cause" of the plaintiff's condition. He thought the accident was the cause of "his presently very disturbed emotional state". Dr Morse suggested urgent psychiatric treatment and an increase of his anti-depressant medication "up to the maximum dose for a period". Dr Morse's prognosis was bleak and he envisaged continuing treatment. 72In relation to the plaintiff's incapacity for work Dr Morse, notably, attributed that to the plaintiff's physical problems but went on to say that any work that the plaintiff might be able to do would be affected by his "currently severe disturbed emotional state ...". 73Dr Morse's second report is a response to the report of Dr Roberts. I do not think it appropriate to draw any conclusions from this report in the light of the withdrawal of the tender of Dr Roberts' report. 74Dr Morse's third report (Exhibit F, page 164) is a response to the report of Dr Newlyn. It is to be recalled that in his first report Dr Morse had assessed the plaintiff's whole person impairment as a result of his psychiatric condition at 22%. Dr Morse plainly recants from this position in his final report. He does not entirely abandon the plaintiff but now includes a number of other matters as being responsible for the plaintiff's depression in addition to the accident. 75Dr Morse commented: "Mr Maric does have a Whole Person Impairment. Given the comments made above it is uncertain to what extent all of his current PIRS can be attributable to the motor cycle accident of 6 April 2007." 76The result of Dr Morse's ultimate opinion must be to conclude that the accident may have had an effect on the plaintiff's current depression but it is not alone as a cause. The plaintiff's drug and alcohol history, his other accidents and his personality disorder all play a part. Once again this view is consistent with the evidence of Ms Hogg in her descriptions of life with the plaintiff. 77The defendant's medical reports are contained in Exhibit 19. They are made up of many hundreds of pages. When I sought assistance from counsel for the defendant as to which of these pages he suggested were relevant he replied, "... I just suggest that your Honour might just flick through it ..." (T 392.5). The basis for this invitation was that there was not much dispute about the contents of the folder. There is also a good deal of duplication with material already tendered by the plaintiff. 78I do think I need to mention in particular three reports in the bundle. The first is that of Dr Newlyn, the MAS Assessor mentioned above. He assessed the plaintiff's psychiatric injury caused by the accident as 0%. As I said when admitting the report over objection, I thought it was admissible but that significant limits needed to be placed on the weight that might be attached to the doctor's opinion. This was for two reasons: (a)Dr Newlyn could not be compelled to attend for cross-examination because of Section 59A of the MACA; and (b)Dr Newlyn draws on, and to a degree agrees with, the report of Dr Roberts that had been commissioned by the defendant. This report is not in evidence. 79A second report that Dr Newlyn referred to is that from Dr Haig, a psychiatrist. No objection was taken to this report, although the plaintiff in his evidence said that he had left the consultation because Dr Haig seemed intent on attributing all his problems to his drug and alcohol use. Dr Haig was not required for cross-examination. His report is dated 16 April 2009. He concluded: "In summary he appears to be suffering from chronic marijuana use, a reactive depression, will only improve when he stops his drug use altogether. His immature behaviour may come from years of some alcohol and drug use." 80It is notable that Dr Haig saw the plaintiff at the request of his general practitioner. It was presumably intended that Dr Haig would provide some treatment to the plaintiff. This did not occur because the plaintiff walked out of the initial consultation. There does not seem to have been a subsequent referral to any other psychiatrist. 81The report from the general practitioner to NRMA Insurance is dated 25 February 2008 and is the same report that is relied upon by the plaintiff. The report states that the plaintiff was last seen in May 2007. I think it clear that the plaintiff must have seen his general practitioner since that date but in the absence of an update report I cannot conclude that there has been any regular consultation with a general practitioner. The plaintiff's statements, his credit and findings about the accident 82The plaintiff was extensively cross-examined on a number of statements, including claim forms, made or adopted by him. 83The first in time arises from Exhibit 9, the ambulance report. Under the section headed "Patient Incident History" is the following statement in quotation marks: "Pt states "that he was riding his bike at 50kph when he braked suddenly and went over the bars landing on his R shoulder/head"." 84The point made by the defendant was that the plaintiff's assertion makes no mention of another rider. The plaintiff responded that he was concerned with his injuries rather than the detail of the accident and in addition he had been administered morphine, which affected his capacity to accurately recall events. The history in the ambulance report does not state precisely when the plaintiff made his statement. It may have been made some time after the arrival of the ambulance. I also note that the plaintiff was first administered morphine at 6.45pm and then further doses were given at 6.52, 7.05 and 7.15pm. 85I think the circumstances of the taking of the plaintiff's statement squarely fall within the cautions stated by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2) and that I should exercise great caution in placing any weight upon their detail or accuracy. 86Where I do think the ambulance report is more relevant concerns the times of various events. The plaintiff consistently said that the accident occurred in daylight at about 4.30 to 5pm. He also said that the ambulance was called about 10 minutes following the accident. It is evident from Exhibit 9 that the ambulance was booked at 5.59pm. Consistent with the plaintiff's estimate of the time between the accident and the booking, the ambulance report estimates the time of the incident at 5.52pm. 87Exhibit 10 states that on 6 April 2007 the sun set in the Lithgow area at 5.51pm. It would seem, therefore, that the plaintiff's suggestion of the accident occurring in daylight is probably incorrect although I could not say that the plaintiff was deprived of visibility. There is some difference, in terms of light, between sunset and nightfall. 88The next record of something apparently said by the plaintiff is contained in Exhibit 12, the clinical record of the Emergency Department of Lithgow District Hospital. This document contains the following entry: "Braked suddenly at 50kph → over handlebars." Once again, I am reluctant to place any weight on this notation. By this time the plaintiff was well under the influence of the morphine and it is even possible that the history was simply obtained from the ambulance officer. 89I also do not form any adverse conclusion against the plaintiff from the entry: "Smells of ETOH". The plaintiff said that he had a can of bourbon and coke following the accident that may explain the entry. There is no other evidence on which I could conclude the plaintiff had been drinking, other than the small amount of beer referred to in Exhibit 13, prior to the accident. In addition there is the evidence that a police officer later told him that his blood alcohol test had produced a negative result. 90The next statement seems to be that given to the police officer (Exhibit 6). The plaintiff's recollection was that this occurred about six months after the accident but it seems clear from the first page of Exhibit 6 that the statement was given some time between 4 June 2007 and 18 July 2007. 91The relevant portion of the police statement is a little difficult to discern. Doing the best I can it seems to read: "Riding bike on private property near a dam near Lithgow. It's about 15 minutes from (word unknown). I was on track and I fell off. I broke my shoulder and left wrist. I was taken by ambulance to Lithgow Hospital. I was riding with two other people." 92It was put to the plaintiff that the reference to him riding "with two other people" indicated that he was riding with them when the accident occurred. He rejected this interpretation and said that he meant that he had gone to the campsite with two friends who were also motorcycle riders. I find the plaintiff's interpretation hard to accept. 93The first claim form completed by the plaintiff is Exhibit 5. It is dated 20 September 2007. The second is Exhibit 13. When questioned about the claim forms the plaintiff conceded the presence of his signature but said he had never otherwise seen the documents before. He had simply signed what he was asked to sign. This evidence is somewhat surprising but possible having regard to the plaintiff's apparent lack of sophistication. 94Another possibility is that the plaintiff has simply forgotten the documents. In either event I am satisfied that their contents are a fair reflection of the plaintiff's instructions to the solicitor who was preparing the document. 95Paragraph 15 of the first claim form contains this description of the accident: "I was riding my motorbike up a hill and I was overtaken by another rider and that rider stopped in front of me and left me with no room. I braked my bike slid out and hurt my right shoulder and my left wrist. I bounced along the ground 3 times and ended up on the end of the cliff." 96It is to be recalled that at this stage the identity of Mr Morrissey was said to be unknown. Putting aside this point the description is generally consistent with the plaintiff's description of the accident in his oral evidence except that he described Mr Morrissey's motorcycle as cutting across him but not stopping. When challenged about the use of the word "stopped", the plaintiff said it was the wrong word to use. 97Question 3 of the claim form asks for the "Place of the accident (streets and town or suburb)". The response is "Lithgow NSW". There is no mention of the Old Western Road. 98Question 12 asks whether any drugs or alcohol had been taken in the 12 hours before the accident. The answer given is "No". This is in contrast to the answer given to the same question in Exhibit 13 where it is stated "a mouthful of beer". Although there was some confusion about how the latter answer came to be given it seems to have been at the suggestion of the solicitor assisting the plaintiff with the statement. 99Exhibit 4 is said to be a statement taken on 2 April 2008. It is not, however, signed. The plaintiff generally agreed with its contents but identified various matters that he did not agree with. He made the point that the statement was made prior to him deciding to disclose Mr Morrissey's identification. He did agree with the manner in which the accident occurred as related in paragraph 41 of Exhibit 4, at least in respect of this portion: "I went past the campsite by mistake and was negotiated the next bend when someone came up behind me and overtook me on a motor cycle and did not take the bend. He skidded straight in front of me and I hit my brakes and the bike was like I was on ice and the next thing I knew I was laying on the edge of the cliff looking back at my bike." 100In paragraph 49 of the statement the following is said: "I would have first seen the other bike when it was around two metres in front of me. I heard it and then saw a flash. He came form behind me and the tried to over take on my right hand side and then he saw that there was an embankment in front of him and then he cut back in front of me as it was a left hand corner. It was when he cut in front of me I hit the brakes." 101The description just quoted in my view is similar to, and certainly consistent with, the description of the accident given by the plaintiff in his oral evidence. The contents of paragraph 50, however, are plainly dishonest. 102Exhibit 15 is another statement of the plaintiff but in this case is signed and although bearing the date on the first page of 2 April 2008 (like Exhibit 4) the signature seems to have been made on 30 April 2008. Significant changes from Exhibit 4 to Exhibit 15 seem to occur from paragraph 30 when Mr Morrissey (in the later document) is introduced as having accompanied the plaintiff to the campsite. In the earlier document Mr Morrissey is mentioned in paragraph 36 but only as one of the people who was at the campsite. The description of the accident is generally similar in each statement. 103The plaintiff was closely questioned about paragraph 61 of Exhibit 15. It was essentially suggested to him that his visit to the house was a fabrication. The plaintiff accepted that he did know how he could identify the other vehicle because he knew it had been ridden by Mr Morrissey. There was therefore no need for him to 'door knock' at any residence. Notwithstanding this the plaintiff was adamant that he had, in fact, visited a house to see if there were any witnesses. 104I find that evidence difficult to accept. In addition the plaintiff said he had visited the site to take photographs. He had said in his evidence in chief that the photographs, which are Exhibits A and B, were taken about a year after the accident. This is perhaps roughly consistent with his evidence in cross-examination. However, he also said that the photographs had been taken after 2008 when he was dealing with questions about surrounding houses (T 170.25). He then said he had taken photographs on a number of occasions. The clear impression I had was that the plaintiff was caught out in relation to the photographs and was making up evidence as he went. 105The plaintiff attended Macquarie Fields Police Station on 11 March 2008 in order to obtain an event number for the incident. This was presumably at the suggestion of his solicitor. The history recorded is as follows: "About 5pm Friday 6/4/07 Maric was riding his motor cycle on an unknown rd, adjacent to Rydal Rd Lithgow. At the time there were another two cyclists riding with him. The Speed of all the cycles is unknown. For unknown reasons one of the other cycles has allpied their brakes harshley, this cycle was travelling in front of Rider2. As a result Rider2 has been forced to also apply his brakes harshley. This action has caused rider2 to be thrown over the handle bars of his cycle, colliding heavily with the ground." (Exhibit 8) 106The above history is obviously a summary and I am reluctant to place much weight on the detail. However, I do think it significant that the history includes the statement that "there were another two cyclists riding with him". There are other important aspects of this document that I will return to below. 107The second claim form (Exhibit 8) was initially signed on 16 September 2009 and then resworn two days later, I assume because the Statutory Declaration added to the claim form was made on the latter date. This document introduces the identity of Mr Morrissey. There are other differences as well. For example, in relation to alcohol the plaintiff now says he had "a mouthful of beer" compared to no alcohol in the first claim form. He also says that the other driver had "a couple of beers". This is inconsistent with Mr Morrissey's evidence who said he had had at least six cans of beer on the trip from Sydney to Lithgow. 108The description of the accident is roughly the same as in the first claim form repeating the allegation that Mr Morrissey stopped in front of the plaintiff, which is contrary to his oral evidence. 109The place of the accident is repeated as "Lithgow NSW" but this time there is, under Question 7, a notation of the police report (Exhibit 8), which includes a reference to the Old Western Road. 110The final statement is dated 7 October 2009 and is contained in Exhibit 16. The plaintiff has signed this document. 111I particularly note the following parts of Exhibit 16: (a)In paragraph 26 the plaintiff says: "I decided that I would take the bike out for a quick ride to look around. I put my riding gear on and set out for a ride by myself". (b)In paragraph 28 the plaintiff says: "I headed up a hill and rode past the campsite and a few moments later another rider, Geoff Morrissey, came flying past me at approximately 80 km per hour. When Geoffrey past me he was confronted with a bend in the road that he was unable to negotiate at that speed. He applied the brakes and skidded out in front of me so that the length of his bike blocked my path for a moment before he continued on his way. I was directly behind him in the moment that he skidded out so I was left with nowhere to go. In an attempt to avoid collision, I applied my front breaks with some force and my front wheel slipped out. I felt the left side of my bike going down and the bike slipped clear out from under me. The bike dug into the dirt and when I let go of the handlebars I impacted with the ground and continued forward to slide a further 10 meters or thereabouts." (c)In paragraph 30 the plaintiff says that he hobbled back to the campsite and "sent my friend Shane Bridge to get my bike". Mr Morrissey's evidence had been that Mr Bridge had been riding with him and the plaintiff and had attended to the plaintiff at the scene of the accident. (d)In paragraph 32 the plaintiff says that he was given 60ml of morphine. The ambulance report refers to only 20mg of morphine. (e)In paragraph 36 the plaintiff gives his reasons for not disclosing the identity of Mr Morrissey. These are generally consistent with the plaintiff's oral evidence on the matter. 112I noted earlier the plaintiff's evidence about maintaining the 'lie' if he had not accidentally told Mr Frame about Mr Morrissey. In defence of his dishonest statements, and what could be made of the likely path but for the accidental slip-up, the plaintiff said that he had never lied to a court or to the police. In respect of the latter this is patently incorrect because it is evident from Exhibit 8 that the plaintiff told Sergeant Sorrenson at Macquarie Fields Police Station on 11 March 2008 that the identity of the rider at fault was unknown (see page 3 of Exhibit 8). If I am right in this conclusion it also follows that the plaintiff was not frank before the court. 113I now come to what I consider the difficult task of deciding where and how the accident occurred. In doing so I am mindful that the onus is on the plaintiff to prove his case. He relies on his own evidence and that of Mr Morrissey, both of whom have, by their own admission, lied in statements made to solicitors, the NRMA, insurance investigators and, in the case of the plaintiff, to the police. In addition, as I have mentioned above, there is the inference that the plaintiff would have continued lying had there not been the accidental disclosure to Mr Frame. 114I note here that the parties agreed that they would not submit, against each other, that I should draw inferences arising from their not calling other potentially available witnesses, in particular Mr Shane Bridge and Mr Terrence Hanks. Although theoretically not binding upon me I think it appropriate to respect the agreement. Accordingly I do not draw any inference against either the plaintiff or the Nominal Defendant for failing to call any other witness present at the scene of the accident. 115The plaintiff's submission is that both he and Mr Morrissey have confessed their dishonesty and both now should be believed in their honest oral evidence. The Nominal Defendant's submission is that the evidence of both the plaintiff and Mr Morrissey is so riddled with lies, contradictions and inconsistencies that I could not be satisfied about any matter other than the plaintiff had come off a motorcycle and suffered some injury. 116In examining the plaintiff's credit in relation to its effect on my findings on liability I think I am entitled to take into account evidence that he gave about his background generally and his work history. The clear impression created by the plaintiff in his examination in chief is that despite some minor injuries he was, before the accident, well and working regularly and unimpeded. The injuries that had occurred to his knees and leg were of little significance in affecting his capacity to work. He was a happy man whose relationship with his de facto wife was severely affected by the accident. 117The final picture is very different. The plaintiff in the two years prior to the accident had worked very little and his relationship with Ms Hogg had been tumultuous for many years. I am of the view that the plaintiff tried to mislead the court in painting a significantly rosier picture of his life and work before the accident than reality reflected. 118Taking into account the just made observations, together with all the inconsistencies that are rife in his statement and adding in his preparedness to lie in pursuing his claim, and to the police, I have come to the view that the plaintiff's credit needs to be treated with extreme scepticism. In my view, his evidence, where controversial, should not be accepted unless corroborated by other reliable evidence. 119In making my assessment of the plaintiff (and the same applies to Mr Morrissey) I have not taken into account his demeanour in the witness box. As a general proposition I do not think it appropriate, other than in exceptional circumstances, to base any findings upon how a person presents in the very unfamiliar and daunting position of being a witness subjected to cross-examination. 120I have reached essentially the same conclusion about Mr Morrissey, although my conclusion is more concentrated on his reliability than his credit. 121As with the plaintiff, Mr Morrissey's oral evidence is to be compared not only against the background of the lie about his identity but also must be compared with the inconsistencies that arise between his oral evidence and his statement given after the original lie was exposed. 122I am however satisfied that I do not believe that any conspiracy to seek financial benefit was ever entered into between Mr Morrissey and the plaintiff. I accept Mr Morrissey's evidence that he did not wish his name to be disclosed because he feared the repercussions and I accept the plaintiff's evidence that he took his friend's interests into account in his initial reporting of the accident. I prefer Mr Morrissey's evidence that the idea for the subterfuge came from him and not the plaintiff. I think the plaintiff's assertion he was responsible was part of his effort, even if lacking in logic, to ameliorate the effects of his hiding the truth for so long and through so many documents and statements. I agree with Mr Marshall's assessment of the plaintiff and Mr Morrissey as both being unsophisticated. 123As already noted, the defendant accepts that the plaintiff was injured in an incident involving a motorcycle. The defendant submitted that the early histories are more consistent with the plaintiff coming off the motorcycle for an unknown reason. This arises from the contents of the ambulance report, the hospital records and the general unreliability of the plaintiff. 124I am satisfied that Mr Morrissey was involved in the accident. Dr Viglione takes an early report of the involvement of another rider and there is a consistency thereafter that the accident was caused by the intervention of a separate motorcyclist. I am also satisfied that Mr Morrissey was the other rider involved. Once the original lie had been exposed there was no reason for Mr Morrissey to become involved if he had not been the offending rider. 125The first issue that needs to be decided is whether or not the plaintiff has established that the accident occurred on the Old Western Road as he alleges. The importance is that his entitlement to sue the Nominal Defendant is derived from Section 33 of the MACA. Under this section, in order for the Nominal Defendant to be an available defendant, the accident must have occurred on a "road" in New South Wales. "Road" is defined in Section 3. During the hearing the parties described this requirement as a necessity for the road to be a "public road". 126The plaintiff ran the hearing on the foundation that if he could establish that the accident occurred on the Old Western Road then he would have met the qualification entitling him to sue the Nominal Defendant. Section 33(3A) was not referred to until the very end of the case in circumstances to which I will return below. I wish however, to make it clear that the basis upon which the plaintiff pursued his case was that the accident had occurred on the Old Western Road. 127It was accepted that if he could not establish this fact, and therefore that the accident had occurred on a public road, then he could not succeed. 128Notwithstanding a last minute introduction of an alternate allegation the plaintiff did not abandon his assertion of where the accident had occurred. It is necessary to look in some detail at the elements that the plaintiff says make up the basis upon which I should find that the accident had occurred on the Old Western Road. 129As already mentioned the plaintiff in his evidence in chief, when asked the name of the road on which his accident had occurred, said: "I think it was Old something Road, Old Western Road, I didn't know at the time, I now know." (T 23.41). 130His evidence about how he now knows is central to the dispute. The defendant submitted that he had not established any credible basis for forming the conclusion that he now knew the name of the road. 131It was accepted by the plaintiff that he originally believed he was riding on private property. 132As stated above, sometime in June or July of 2007 Constable MacPherson visited the plaintiff. He took a statement which is in Exhibit 6. The statement is set out in full above, but for present purposes I note it commences "riding bike on private property near a dam near Lithgow". 133Under cross-examination about his interview with Constable MacPherson the plaintiff gave this evidence: "Q. Well, part of your previous answer was that Constable MacPherson had told you that it wasn't an unknown road, is that not so? A. That's true. Q. When did he do that? A. When I was speaking to him at my house, when he come to my house and told me that I was going to be charged with something if I was drunk or on drugs or anything like that, he come out to tell me that my tests were clear and I wasn't going to be charged with anything. Q. That's when that statement was made wasn't it? A. That's right. Q. So, he then told you it wasn't an unknown road didn't he? A. Exactly. Q. So, why would you say HIS HONOUR: Sorry, hang on, hang on. MARSHALL: No, no, no. HIS HONOUR: Wasn't a private road is what he said before, not an unknown road. RENSHAW Q. Well, what road did he tell you it was when he saw you? A. He told me it was a public road, that's what he told me, he didn't tell me the name of the road, he told me it was a public road, and then we had that trouble trying to find the name of it. So, had to find the council, ring the council to find out the name of it. Q. What you received a letter from the council did you? A. Ask Debbie she done it." (T 91.17) 134As I read the above passage of evidence Constable MacPherson told the plaintiff that the road was a public road but he did not tell him the name of it. This was obtained from the Council by Ms Hogg. No letter was produced concerning the matter. Ms Hogg gave evidence. She was not asked any questions about contacting the Council. 135The next important passage of evidence is to be found commencing at page 146.8 of the transcript. The plaintiff was asked how he identified where the accident occurred. He replied: "Because I've been there before and I know where it is". When asked how he found out that it was a public road he said that he had not. He was "pretty sure Debbie did" and he added "the police told me so that was where I got it from". When once again asked the name of the road he said: "it's Old Western Road as far as I know". 136On further exploration by the cross-examiner this passage of evidence occurred: 'Q. Well, when you say you've been advised by the local council, was that over the phone or A. I don't know who it might be Q. Got no idea A. It might have been the solicitor, it might have been Debbie, it might I can't remember who advised me or the police told me it was a public road, and I don't know who advised me of the name of it. Q. But you looked on the internet, you mean you looked on Google Earth did you? A. I suppose so. Q. But it didn't appear on Google Earth? A. Well, I don't know where-" (T 146.36). 137His final position in the just quoted passage seems to be "and I don't know who advised me of the name of it". 138I will now return to Exhibit 8. The plaintiff attended Macquarie Fields Police Station on 11 March 2008. The exhibit was created on this date with additions made on later dates. The plaintiff submitted that Exhibit 8 is the substantial source of proof of the location of the accident. It was submitted that a reading of the document suggests that the "further inquiries" referred to on page 2 were conducted by the police. That is not my reading of the document. In my view, the further inquiries referred to are part of the history given by the plaintiff to Sergeant Sorenson when he attended the police station. 139It appears that on the same day Sergeant Sorenson has "ascertained" that Constable MacPherson was the officer originally involved but had taken the matter no further because "the collision was on private property". This contradicts the plaintiff's assertion made on page 91 of the transcript that Constable MacPherson had told him that it was a public road. 140The "Crash Summary" on page 5 of the document commences "About 5pm Friday 6 April 2007 the rider was riding his motorbike along an unknown road, but adjacent to Rydal Road, Lithgow". Notwithstanding this sentence, the next section of the document then lists the Old Western Road as the location of the incident. 141This identification of the road is somewhat confusing, firstly because it follows the statement about an unknown road but also because the listed characteristics of the accident site include that the road was "straight", the gradient "level" and the surface was "sealed". All of these attributes are absent (almost the very opposite) of the road to be found in Exhibits A and B. 142The plaintiff, as I have already said, stated that he knew where the accident had occurred. He had returned there to take photographs. Establishing the location and name of the road should have been a simple exercise. It would have required no more than a map, perhaps even a Google satellite view, or a letter from the local council. None of these are present. As I have said, Ms Hogg did not give any evidence about her alleged inquiries. The police officers were not called. All that is left is the plaintiff's assertion that he had found out the name from somewhere, which might have been Ms Hogg, or the council, or the police or his solicitor. 143The description of the route given by Mr Morrissey in paragraph 16 of his statement (Exhibit 18) is too confusing to be of any assistance, even putting aside Mr Morrissey's general unreliability. 144Where useful evidence is absent it is necessary for me to base my decision on the evidence that is present. As stated in the High Court very recently in Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17: "[165] Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles ..." 145The evidence that I have is no more than the plaintiff saying that he came to find out the name of the road and that it was a public road. Had the plaintiff been a witness whose credit had not been challenged, or had survived challenge, the situation may have been different. My already stated view of the plaintiff, however, is that his evidence must be treated with caution and not accepted unless corroborated by a reliable, independent source. 146The reliable, independent sources that may have corroborated the plaintiff's evidence are all absent (the map, the police officers, a council employee or document, evidence from Ms Hogg or a solicitor). I can do no more than infer that any such evidence would not have assisted the plaintiff's case. However, I can find, in the absence of such evidence, that there is no corroboration of the unreliable plaintiff. Accordingly, I do not accept that the plaintiff has proved, on a balance of probabilities, that the accident occurred on the Old Western Road or in fact anywhere else. 147It follows that the plaintiff has not established his entitlement to sue the Nominal Defendant. A verdict for the defendant must follow. 148The topic of the identification of the location of the accident formed a significant part of submissions. In the light of the discussion, but at the very end of submissions, learned senior counsel for the plaintiff sought to add an alternate argument, namely that it did not matter that the site of the accident had not been identified because all that was required was that he establish the accident had occurred on a road in New South Wales and did not fall within Section 33(3A) of the MACA. It was submitted that the plaintiff's presence on the road together with his companions, his previous visits and the presence of the other campers all led to an inference that he was not a trespasser on the road. 149When this submission was made it immediately seemed to me that this change of tack required an amendment to the pleadings (T 438.50). Mr Marshall said it did not and that it was open to him to raise the argument. I disagree, for the following reasons: (a)The whole of the hearing was conducted on the basis that the accident had occurred on the Old Western Road. (b)The location of the accident is a material fact that should have been pleaded. The entitlement to sue the Nominal Defendant is dependant on the accident occurring on a road within the parameters of Section 33. 150Notwithstanding my implicit invitation no application was made to amend the pleadings. 151Accordingly I do not think it is open to the plaintiff to run the alternative argument. In case I am wrong I think the end result would be the same. In my view the known facts of the area would not enable me to reach any conclusions about the land on which the road is situated. I do not think there are helpful (to the plaintiff) inferences available, but even if there are, there are also competing inferences against the plaintiff's case. 152In addition, besides Exhibits A and B, the known facts all emanate from the plaintiff or Mr Morrissey, both of whom I have found to be unreliable witnesses. 153In order to form a conclusion about the track, including whether it was open to the public or whether the plaintiff and his companions were trespassers, there would at least have to be some evidence of where the track was. There is no such evidence. The fact that the plaintiff and his friends were on the track does not necessarily mean they were not trespassers. The presence of a group of motorcyclists at a campsite is evidence of no more than that fact. If the evidence was that the access to the campsite was via the road on which the accident occurred the position might be different. That however is not the evidence. 154Section 33(3A) was included in the MACA following the decision of the New South Wales Court of Appeal in Ryan v Nominal Defendant (2005) 62 NSWLR 192. The very significant difference between the facts in that case and the present are that the track involved in Ryan was identified and could be assessed having regard to its usage by the public both on the day the plaintiff was injured and historically. In the present case, if the location of the accident is incapable of identification, then no conclusion can be drawn about the location and its usage. 155The only reliable conclusion I can draw from Exhibits A and B is that they depict a short stretch of a rough road in the country. 156Thus although I do not think the plaintiff is entitled to run the alternate argument alleging no more than that the site of the accident is a road somewhere in NSW, which is not caught by Section 33(3A), I am in any event satisfied that this argument would not assist the plaintiff. 157Having found that the defendant is entitled to a verdict in its favour it is not necessary for me to proceed any further; however, I am mindful of the possibility that I might be in error and so will continue on that assumption. 158The next issue concerns the manner in which the accident occurred. 159I am satisfied that the accident occurred as a result of some manoeuvre being performed by Mr Morrissey which caused the plaintiff to take sudden action leading to his being thrown forward over the handlebars of his motorcycle. I think these facts are consistent with all of the versions, both oral and written, which follow the disclosure of Mr Morrissey's identity. 160Having accepted that the plaintiff was injured in an incident involving Mr Morrissey I think I can go a step further and say that Mr Morrissey was the cause of the plaintiff taking the sudden action leading to his downfall. Mr Morrissey was an inexperienced rider on an unfamiliar motorcycle on very uncertain terrain. In addition he had consumed enough alcohol to make him fearful of prosecution (T 200.6). I am satisfied that he found difficulties in negotiating a bend and in his efforts to get around the corner he cut off the plaintiff. I am satisfied he was negligent and that his negligence caused the plaintiff to take the action that led to his injury. 161I think Mr Morrissey's negligence is obvious in particular when based on his version of the accident set out in paragraph 18 of his statement (Exhibit 18). The required elements of Section 5B of the CLA are all present especially when Mr Morrissey's inexperience and alcohol consumption are added to his version. 162I am not, however, satisfied, because I do not accept the plaintiff, that he set off alone when he left the camp. At the very least he was with Mr Bridge and probably also riding with Mr Morrissey. My decision is based on the following: (a)The references in the statements concerning the departure from the camp. (i)Exhibit 6: "I was riding with two other people". (ii)Exhibit 8: "At the time there were another two cyclists riding with him." (iii)Exhibit 17: "Stefan went off riding with a few of the other guys". (iv)Exhibit 18: "We pulled up got the bikes out and before we set up camp we decided to go for a ride. There was myself, Stefan Maric and Shane Bridge and we rode off back towards the main road were we had just come from.....We rode up a small track that leads onto the road......The other two took off so I then drove up onto the road and headed in the same direction as them. I rode the bike up to the others...." (v)Exhibit 18: "I came up behind them......I travelled up the road a bit further and I realised the other two were not with me." (b)The logicality that persons who are going to enjoy a weekend trail biking together would ride together. In addition the plaintiff and his companions were joining a larger group of trail bike enthusiasts. (c)The illogicality of the plaintiff's evidence. I specifically reject this passage in the plaintiff's evidence: "Q. Well, when you go riding with a group of people? A. Mm. Q. Are there any rules, or you try to A. Well, I don't ride with other people, so. I don't know what the rules are. Q. Have you never ridden with anyone else? A. I've never gone riding with anyone else, like a group like that, I'd take off on me own, and I don't follow anybody anywhere. Q. So you don't know anything about trail bike riding? A. How do you say that? I ride on my own. (T 98.1) (d)The plaintiff's preparedness to lie if it suited his purpose. It is to be recalled that the plaintiff would have continued to not disclose Mr Morrissey's identity but for the accidental slip in the barrister's chambers. (e)Mr Morrissey's oral evidence is at least consistent with the plaintiff riding off in Mr Bridge's company: "A. From my recollection Shane Bridge went off took off on his bike at a similar time." (T 206.34). 163The next question is, what is the effect of my finding that the three riders were travelling together when Mr Morrissey performed his act of negligence. I think it establishes significant contributory negligence on the plaintiff's part, although not nearly to the extent advocated by the defendant (70-100%). 164The plaintiff acknowledged the danger of riding in company: "Q. Do you agree, that if you are riding on a road like the road we're talking about here, and you've got, and you're riding with two other motor cycles, that might go in front of you, or might go behind you, or might overtake you, that that would be more dangerous than riding on your own. Do you agree with that? A. Definitely." (T 101.31) 165Mr Morrissey's inexperience and his alcohol consumption must then be added in to the equation. Although the plaintiff said he did not know how much beer Mr Morrissey had consumed it is to be recalled that Mr Morrissey and Mr Bridge had purchased a carton of beer and that they had sat on a bench seat in the plaintiff's van (ie alongside him) while they were drinking. In my view the plaintiff would have had at least some idea of the amount of alcohol consumed by Mr Morrissey and Mr Bridge. Another factor is that the reason Mr Morrissey was concerned about the police being called is that he felt that he would have been riding the motorcycle over the legal alcohol limit. 166The plaintiff said Mr Morrissey was not totally inexperienced because he had been teaching Mr Morrissey how to ride (T 184.34). I prefer Mr Morrissey's assessment of his own experience. 167The three elements that I think, cumulatively, give rise to contributory negligence are therefore the following: (a)Riding in company on the type of track in question. (b)Riding with an inexperienced rider. (c)Riding with an inexperienced rider who had also been consuming alcohol. 168The above three elements, which were all known to the plaintiff, combine to create a foreseeable risk of significant harm caused by either a collision or an action by the other rider causing an injury (as happened here), all of which might occur at a significant speed. 169I am satisfied that Mr Morrissey's manner of driving was influenced by his inexperience and consumption of alcohol so that the plaintiff's contributory negligence must be assessed in the light of him knowingly riding in the company of an inexperienced and alcohol affected second rider. Although it was Mr Morrissey's actions that led to the plaintiff coming off his motorcycle, the reasonable foreseeability of such an event, having regard to the plaintiff's knowledge of Mr Morrissey's inexperience and alcohol consumption, should be at least equal to that of Mr Morrissey. Accordingly, I find contributory negligence of 50%. Damages 170Because of my decision on liability I will state the basis for my assessment of damages briefly, but I hope providing sufficient reasons to illustrate how I have reached my conclusions. 171The plaintiff's injuries are physical and mental. The physical injuries are undoubtedly serious. The assessments of whole person impairment on either side of 20% by Drs Bodel and Dixon respectively are in themselves an indication of the severity of the shoulder and wrist injuries. I again note that the defendant has not tendered the reports of Drs Harrison and Marsh. I have already made observations about the medical reports. Although I do not accept the plaintiff in many respects, I do accept that he has continued to have pain and limitation of movement, in particular in his shoulder, and that this is likely to be permanent. 172As far as the plaintiff's psychological injury is concerned there are obviously many factors at play in its makeup. He has the significant advantage of my acceptance of the evidence of Ms Hogg that she has noticed the plaintiff becoming depressed since the accident. I must also, however, take into account that the plaintiff obviously had a pre-existing disposition to depression, he was a frequent user of cannabis and there is a real possibility that his mental state has causes beyond the motor vehicle accident. 173The defendant submitted that non-economic loss should be assessed at between $80,000 and $120,000. The plaintiff submitted that $225,000 was the correct figure. In my view, non-economic loss should be assessed at $150,000 to take into account the severity of the plaintiff's physical injuries, at least a significant contribution from the accident to his mental injuries but also having regard to the degree of exaggeration by the plaintiff in his distortion of his alleged well-being before the accident. 174The plaintiff submitted that his past economic loss should be assessed on the basis of his earnings up to 2004. Thus he calculated his loss on an average of $563 net per week providing a total of $148,632 over the past 264 weeks. This figure was then reduced by the approximately $5,000 that the plaintiff has earned since the accident. 175The defendant submitted that a figure in the range of $25,000 to $40,000 was correct. The defendant's approach was based on the plaintiff's immediate pre-accident injuries. It would have been appropriate to take into account the injury the plaintiff had to his knees and perhaps the problem he was having with his hands for a limited time if the plaintiff had frankly said his pre-accident injuries had been affected by these conditions. His evidence was that he was fully able to work before the accident. If that is the case then one can only conclude that his immediate pre-accident financial activity was limited for other reasons, perhaps choice or unavailability of work, which would have continued past the accident. 176The plaintiff referred me to the decision of McColl JA in Rabay v Bristow [2005] NSWCA 199 at paragraph 73. Her Honour here highlights the two factors necessary in the proof of economic loss. These are that there has been a loss of capacity and that that loss has been productive of economic loss. There has unquestionably been a lack of capacity caused by this accident. The real issue is the extent to which it has been, and will be, productive of economic loss. 177Had the plaintiff been frank about his pre-accident activities it would have been easier to reach a conclusion on what would have occurred but for the accident and into the future. In my view, the plaintiff's lack of credit makes the exercise extremely difficult. Should he be compensated on the basis of his income at the time of the accident or take into account, say, the 5 years before the accident? I think the answer is between the two. I allow $175 per week for 265 weeks. This is $46,375. I have come to the view, reluctantly, that I should proceed by way of a buffer for past and future economic loss. 178No claim has been made for lost superannuation contributions because the plaintiff was self-employed. 179Turning to future economic loss, and to the requirements of Section 126 of the MACA, I am satisfied that but for the accident the plaintiff would have continued to work in a haphazard manner sometimes earning well and at other times minimally. I am further satisfied that this pattern would have continued to age 65 but would have been subject to much higher than normal vicissitudes based on the plaintiff's already existing psychological makeup and the continuation of whatever the actual reasons were for the downturn in his working abilities since 2004. 180I think a buffer is the appropriate course. The use of a buffer is permitted in certain circumstances as has been made clear by the Court of Appeal in a number of cases. I think this case falls into the category described by Basten JA in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 in paragraph 30: "That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a "buffer", without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]-[5]. Since then, a similar approach has been adopted in at least 20 cases in this Court" 181I allow $150,000. This figure is intended to take into account the plaintiff's loss of his capacity to work as a carpet layer but also to reflect a retained capacity to work as well as the factors I have described that might otherwise have impeded his continuing regular employment. 182The claim for past out of pocket expenses was abandoned. This is not because the plaintiff has not incurred medical expenses but simply because he was unable to prove them. 183The plaintiff's claim for the future is $45,006 based on some $7,000 of psychiatric treatment and $38,006 for consultations with a general practitioner, medication and involvement in an exercise and gym programme. The difficulty with the plaintiff's claim is that there is no evidence that he has been seeing his general practitioner or has been engaged in any exercise programme, let alone benefiting from such a programme. He does take antidepressant medication and would no doubt need painkilling tablets from time to time. 184To the extent that part of his psychological condition can be attributed to the accident I think the plaintiff is entitled to some allowance for future treatment together with some of the treatment suggested by Dr Dixon. I allow $15,000 for future medical expenses. 185The plaintiff's claim for past gratuitous care is based on the opinion of Dr Bodel at page 118 of Exhibit F and that of Dr Dixon at page 174 of the same exhibit. The detail for the claim is derived from the statement of Ms Hogg, which is Exhibit D. The statement contains a schedule of activities that she provides for the plaintiff including the time that each task takes. There was no cross-examination of Ms Hogg about this schedule, nor any challenge to her evidence that she did the work. There is nothing apparently exaggerated about the time she allots to the different chores. The defendant's approach was that the plaintiff may well be receiving the care provided by Ms Hogg but the need is not attributable to the accident. 186It is somewhat surprising that Ms Hogg provides the services having regard to the fact that she has separated from the plaintiff. I think her activities are an indication of her decency as much as a reflection of the plaintiff's needs. It is evident from the schedule that the plaintiff does almost nothing. Ms Hogg states: "I prepare all meals for Stefan. As a result of his psychological condition he stopped eating." I think this point highlights the fact that the need for the services is not only due to the plaintiff's physical condition but also to his psychological state. As has been seen above there is some doubt about the extent to which the plaintiff's psychological state can be attributed to the accident, at least in total. His physical condition alone would certainly give rise to a need for some domestic services but nowhere near the extent provided by Ms Hogg. 187In my view, the combination of the plaintiff's needs arising from his physical condition together with an element based on at least part of his psychological condition being attributable to the accident resulted in a need arising from the accident of seven hours per week for three years from the accident. I think a need has continued but I do not accept that the extent of the need due to the accident has exceeded more than six hours per week after the initial three years. Accordingly, I assess past domestic care, on the agreed rate of $24 per hour, as: 24 x 7 x 156 = $26,208. 188The claim for the future is made on a commercial basis. There was no evidence from the plaintiff that he would engage commercial staff nor did Ms Hogg suggest she would cease providing care. One has to accept, however, that now that the plaintiff and Ms Hogg have separated that sooner or later she may complete the separation by forming a new relationship and ceasing her assistance to the plaintiff. 189I am also of the view that the plaintiff's need for future care is likely to be more based on his physical problems than his psychological state, at least to the extent that the latter is derived from the accident. I think his future needs could be met by an allowance of three hours per week. For the balance of his life expectancy, at an agreed rate of $35 per hour, this would produce a figure on the 5% tables of $98,511 (3 x 35 x 938.2). I think this figure should be reduced, however, to $90,000 to reflect my view about Ms Hogg continuing to provide services in the immediate future. These services would, of course, be gratuitous and not meet the thresholds imposed under the MACA. 190A summary of my assessment of damages is as follows: Non-economic loss $150,000.00 Past economic loss $46,375.00 Future economic loss $150,000.00 Out of pocket expenses $0.00 Future medical care $15,000.00 Past gratuitous care $26,208.00 Future commercial care $90,000.00 Total $477,583.00 191Had the plaintiff been entitled to a verdict the total of his damages would have been reduced by 50% to reflect my finding on contributory negligence. Accordingly there would have been a verdict in the sum of $238,791.50 192Because the plaintiff has failed the cross-claim must also fail. 193I make the following orders: (a)Verdict for the defendant against the plaintiff. (b)Verdict for the cross-defendant against the defendant on the cross-claim. (c)No order as to costs in the cross-claim. 194In relation to the costs of the principal action I will hear the parties on any special orders arising from Offers of Compromise or 'Calderbank' letters. I am also minded to take into account the failure of the parties to comply with the standard orders made by the Judicial Registrar on 15 November 2011. The reasons for this are set out in my separate judgment on the defendant's application to amend the Defence. In my view the hearing would have been substantially shorter if the orders had been complied with. 195(After discussion the following further orders were made in relation to costs: (d)The plaintiff to pay the defendants costs of the proceedings. (e)Subject to the following order: those costs to be assessed on an indemnity basis from 13 December 2011. (f)No order as to costs in respect of two days of the hearing. (g)Exhibits are to be returned after 28 days unless the Registry has been informed that a Notice of Appeal or Notice of Intention to Appeal has been filed.) 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: 18 May 2012