District Court New South Wales Medium Neutral Citation: Russell v Chyzy [2014] NSWDC 9 Hearing dates: 3 - 7 February 2014 Decision date: 13 March 2014 Before: Sidis ADCJ Decision: Verdict for the plaintiff. The plaintiff's damages are to be reduced by 25% to take account of his contributory negligence. Judgment for the plaintiff in the sum of $543,750. The defendant is to pay the plaintiff's costs on a party and party basis up to and including 26 August 2013 and on an indemnity basis thereafter. The exhibits will be retained. These orders stayed on conditions noted. Catchwords: CIVIL LAW - PERSONAL INJURY - Motor vehicle accident - Collision between motorcyclist and driver of utility turning right across the motorcyclist's path of travel - primary liability where plaintiff exceeding speed limit - Assessment of credit of each party - Assessment of expert evidence concerning speeds of both vehicles - weight to be given to lay witness' evidence of speed - Contributory negligence Legislation Cited: Civil Liability Act 2002 Cases Cited: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464 Category: Principal judgment Parties: Gary Neil Russell - Plaintiff Erin Maree Chyzy - Defendant Representation: Mr B Dooley SC; with Mr P Kirby - Plaintiff Mr D Wilson - Defendant Gianacas Argiris McDonald - Plaintiff Moray & Agnew - Defendant File Number(s): 2011/302073 Judgment 1On 16 September 2010 a collision occurred at the driveway of 621 Wakefield Road, Wakefield. Two vehicles were involved; the Kawasaki Ninja 1400 cc motorcycle ridden by plaintiff, Gary Neil Russell and the Holden Commodore utility driven by the defendant, Erin Maree Chyzy. 2The plaintiff was travelling in a northeasterly direction on Wakefield Road. The defendant, having travelled from the opposite direction, was in the process of turning right into the driveway of 621 Wakefield Road. The collision occurred when the plaintiff's motorcycle collided with the defendant's utility as she turned it to cross the northbound lane. The plaintiff suffered serious injuries as a result of the collision. He claimed breach of duty of care on the part of the defendant. The defendant denied liability and claimed, in the alternative, that the plaintiff was guilty of contributory negligence to a considerable degree. 3The parties were able to agree on the quantum of damages suffered by the plaintiff. The issues for determination on the hearing of the plaintiff's claim were therefore limited to those of liability and contributory negligence. The parties' accounts of the accident 4The plaintiff accepted that, having ridden his motorcycle on Wakefield Drive on many prior occasions, he was familiar with its features and that, unobstructed, he was able to see to the point of impact from a distance of 120 metres. The defendant also accepted that she had driven on Wakefield Drive on many prior occasions and that, unobstructed, she could see for 120 metres to the south from the point of impact. 5The plaintiff claimed that his line of sight to the north immediately prior to the collision was obstructed and he did not see the utility until he was 50 metres from the point of impact. He said a prime mover with two trailers travelled towards him as he approached a right hand curve in the road at a speed of about 90 km/h. Until he passed the truck at the apex of the curve, he was unable to see oncoming traffic. He then saw the defendant's utility, which was just starting to cross the centre lines. 6His first reaction was that he thought he would die because the distance between his motorcycle and the utility was insufficient to allow him to avoid a collision. He applied his brakes as quickly as possible and tried to steer to the left in anticipation that the defendant might see him and allow him room to pass on the left hand side of the road. However, the defendant continued on her path across the road and he steered to the right towards the centre of the road, hoping that a collision might be avoided. 7His motorcycle impacted with the utility at a point immediately to the rear of the cabin. He was ejected from the motorcycle and thrown over the utility, landing on the road. 8The defendant said she did not see the plaintiff's motorcycle at any time prior to impact. She said that, as she approached the property at 621 Wakefield Drive at a speed of about 80 km/h, a truck and three or four cars followed her. She pulled off the road about 700 metres to the north of her destination to allow these vehicles to pass. She did this because she was concerned that it might cause an accident if too many vehicles were behind her when she turned right into the driveway of the property. These vehicles passed her and they continued to travel at a speed she estimated to be 80 km/h. After checking that there was no more following traffic, she then drove back onto the road and continued over a hill. 9She accelerated up to 80 km/h and travelled over the hill and around a bend. At that point she saw the last of the cars that passed her when she pulled off the road travelling around the curve to the south of the point of impact. She continued on a downhill section of the road and around a corner. At the first guard rail, reported by Mr Keramidas to be 65 metres from the centre of the driveway at 621 Wakefield Drive, she activated the right hand indicator of the utility. 10At this point she looked to ensure that there were no vehicles approaching or following her. At the second guard rail or telegraph pole, reported by Mr Keramidas to be 27 metres north of the centre of the driveway, she decreased her speed, made sure that there was nothing coming around the curve in front of her and proceeded to make the right hand turn. She also quickly looked into the driveway to check if the gate was open. 11The defendant was unable to state the speed to which she slowed before making the turn. She described it as between a walking and jogging speed before she turned and faster during the turn so that she travelled at between jogging and running speed. She said she did not stop at any point before turning. When she reached the point where the front wheels of the utility reached the driveway she heard a loud bang and the vehicle was pushed to her right coming to rest partially in the roadside stormwater drain. 12The defendant's explanation for failing to see the approaching motorcycle was that the plaintiff was travelling at a speed that was excessive so that, when she commenced her righthand turn, he was beyond her line of sight of 120 metres. 13The plaintiff's explanations for failing to stop before colliding with the utility were that his line of sight to the north was obscured by the trailers of the prime mover. He claimed that the defendant did not look for oncoming traffic before suddenly commencing her turn or that she commenced the turn at a time when her capacity to see oncoming traffic was obscured by the truck. Agreed features 14A number of the features of relevance to the circumstances of the accident were agreed between the parties and their experts. They were: (1)The accident occurred at about 10.15 am on 16 September 2010. (2)The weather was fine and the road surface was dry. (3)Wakefield Road provided one lane of travel in each direction and was divided by double white lines at the point where the defendant turned right. (4)The speed limit at the place where the accident took place was 80 km/h. (5)There was a curve in the road the apex of which was about 50 metres south of the driveway. (6)The motorcycle ridden by the plaintiff was highly powered and capable of reaching extremely high speeds in very short distances. Its maximum speed was 290 km/h. (7)The approaches to the point of impact whether from the south or from the north involved downhill descents. (8)The defendant activated the right hand indicator on the utility before turning to cross the double white lines on the road. (9)Police measured skid marks made by the wheels of the motorcycle. The mark left by the rear wheel commenced 12 metres from the point of impact. (10)The site diagram attached to the primary report of Mr Keramidas was a fair representation of the road geometry in the area of the accident. (11)The roadway and some elements of the roadside furniture had changed since the date of the accident but they were in their original form when inspected by Mr Keramidas on 29 August 2012. (12)The sightline distance, based on the geometric features, was about 120 metres from the driveway of 621 Wakefield Road towards the south. (13)The reconstruction of the physical evidence as seen in the police photographs (Exhibit A) was consistent across the reports of Mr Keramidas (Exhibits 5a and 5b) and Dr Rechnitzer (Exhibits E1 and E2). (14)The point of impact was at the termination of the motorcycle's skid marks as observed in the police photographs. (15)Based on the physical evidence, the relative impact of the motorcycle to the Holden and the Holden's relative angle to the roadway at the time of impact was shown on Mr Keramidas' "Collision Diagram". (16)The likely speed of the motorcycle at impact was about 78 km/h. (17)The likely speed of the motorcycle at the commencement of the 12 metre skid mark was 90 km/h. (18)A range of possible braking rates between 0.6g and 0.8g could be applied. (19)A likely perception/response time (PRT) of the rider was one second but a longer response time could not be excluded. The experts agreed that a PRT of 1.5 seconds was possible. 15The areas of agreement set out in paragraphs 10 - 19 above were the result of discussions between Mr Keramidas and Dr Rechnitzer as recorded in their joint experts' report. Their report was not available at the time they gave evidence. It has subsequently been made available and marked as Exhibit H. The issues 16After recording the matters set out in Exhibit H, Mr Keramidas and Dr Rechnitzer stated that only the prebraking speed of the motorcycle remained in issue between them. This was not correct. They also disagreed on the speed at which the defendant travelled at the time she commenced the righthand turn and at the time of impact. 17These speeds were relevant to the determination of whether the plaintiff was beyond the defendant's line of sight at the time she started to make her right hand turn. It was accepted that at a certain combination of the plaintiff's pre-braking speed and the defendant's road crossing speed, the plaintiff would not have been visible to the defendant at the time she commenced her crossing of Wakefield Drive. 18It was therefore necessary to determine these speeds before any finding concerning the primary liability of the defendant could be made. 19In the event of a finding of liability on the defendant's part, it was necessary to deal with the disputed evidence of the parties concerning the involvement, if any, of a truck on Wakefield Road immediately prior to the accident in order to decide whether the defendant established the claim of contributory negligence on the part of the plaintiff. 20Mr Keramidas and Dr Rechnitzer gave their evidence concurrently. They agreed on a number of other matters during the course of their evidence. Some of these areas of agreement were of general application. They were as follows: (1)Figure 15 on page 39 of Dr Rechnitzer's report (Exhibit E1) representing the positions of the vehicles at impact was consistent with the Collision Diagram prepared by Mr Keramidas that formed part of his report (Exhibit 5A). (2)The delineation of skid marks on page 40 of Mr Keramidas' report was a reasonable representation of what appeared on the police photographs. The skid marks were not to be confused with the shadow of the overhead wires that appeared on photograph 4 of Exhibit A. (3)The time occupied while the motorcycle was skidding was 0.53 seconds. (4)It was not necessarily imprudent to disregard the 75 km/h speed advisory sign that preceded the curve to the south of the point of impact. (5)It was preferable for traffic to travel within the speed limit that at the point of impact was 80 km/h. (6)The front wheel of the motorcycle did not lock. The mark left by the tyre on that wheel was the result of deflection at the point of impact. (7)The motorcycle ridden by the plaintiff was fitted with two front headlights that switched on automatically when the engine was turned on. 21The remaining areas of agreement will be dealt with in the course of discussion of the issues. The speed of the plaintiff's motorcycle 22The plaintiff consistently maintained that his prebraking speed was 90 km/h. He reluctantly agreed that this speed exceeded the limit of 80 km/h, stating that it was a technical breach only. 23In addition to Mr Keramidas and Dr Rechnitzer, expert opinion was obtained from Mr McDonald and Mr Jamieson. 24Mr McDonald provided a number of reports in which he estimated the plaintiff's prebraking speeds variously between 102-105 km/h; 90-100 km/h; and 103-115 km/h. He also accepted Mr Keramidas' estimates of the plaintiff's speed. Mr McDonald was not called for cross examination and his opinions were undermined by the criticisms of Dr Rechnitzer that were not challenged by the defendant. In particular, he was critical of Mr McDonald's estimate of a speed of 100 km/h because it was based on an understatement of the weight of the motorcycle and its rider. A further difficulty with Mr McDonald's estimates was that they were based on speeds at impact and at the start of the skid marks that were different to those that were subsequently agreed by Mr Keramidas and Dr Rechnitzer and accepted by the parties. 25Mr Jamieson adopted a preskidding speed of 90 km/h and an impact speed of 78 km/h, speeds that were accepted by Mr Keramidas and Dr Rechnitzer or close to their agreed speeds. 26Mr Jamieson's report did not provide an estimate of the plaintiff's prebraking speed. In cross examination he rejected the defendant's contention that this speed would necessarily exceed 90 km/h. His opinion was that motorcycles have highly efficient braking systems. In addition, motorcyclists, because they travelled in an open environment and were required to maintain their motorcycles in an upright position, were more alert than car drivers. He acknowledged that deceleration rates depended substantially on the skill of the motorcyclist and the evenness of the road pavement. 27Mr Jamieson also said that he relied on the physical evidence available in arriving at his opinion. In this case there was none that suggested that there was any braking before the skid marks appeared on the road and he noted that, if responding to a vehicle crossing the path of travel, a motorcyclist would apply the brakes as hard as possible, potentially locking them very quickly. 28Mr Keramidas relied on the plaintiff's evidence in Local Court proceedings that prior to impact he changed gear and applied the brakes to his front wheel only. On this basis and on the assumption that the plaintiff applied his brakes immediately, he concluded the plaintiff was 25.4 to 29 metres south of the skid marks when he changed gear and was travelling between 97 and 113 km/h. 29Dr Rechnitzer did not address the likely speed of the motorcycle prior to the appearance of the skid marks. Like Mr Jamieson, he said any such calculation would be based on speculation rather than physical evidence. 30An aspect involved in the estimation of the plaintiff's prebraking speed arose from his evidence of retardation manoeuvres undertaken in response to the emergency that faced him. In the statement (Exhibit 3) that the plaintiff provided to Senior Constable Cleary on 27 September 2010 he said that after he saw the defendant's utility starting to turn into the driveway: I immediately pulled on the front brake and tried to steer away towards the back of the car to avoid hitting the front of the car. I was able to wash off enough speed and was able to change gear down. 31In evidence to the Local Court, the plaintiff said that his immediate reaction when he saw the utility turning across the road was to apply heavy pressure to his front brake. He attempted to steer to the right away hoping to pass behind the utility as it continued on its path across the road. He said nothing of a change of gear. 32In evidence to District Court, the plaintiff said that, after applying the front brake, he steered to the left with a view to passing in front of the utility. It became apparent that the utility was continuing its crossing, so he steered to the right to attempt to pass behind it. He again said nothing of changing gear. 33The plaintiff denied that this was the first occasion on which he claimed to have veered to the left in response to the hazard he faced. In any event, he said, he only contemplated it for split second. 34The plaintiff acknowledged that the police statement made reference to a gear change. He said this statement was provided 11 days after the accident, while he was still under treatment in hospital and after a number of extensive operative treatments. He accepted that, if this was what he told police, it was what he believed at the time. He now considered it unlikely and that more probably any gear change took place as he approached the curve in the road and before the hazard presented by the turning utility came into view. He said he had no time to change gear when he was braking and steering. 35Mr Keramidas and Dr Rechnitzer were asked a number of questions about the time that might be involved in changing gear and steering first to the left and then to the right. The point of these questions was to determine whether the distance between the plaintiff and the defendant when he first sighted the utility was greater than the 50 metres that he claimed so that it was likely that he was travelling at a speed greater than 90 km/h. 36Dr Rechnitzer took issue with Mr McDonald's subsequent assessment of 103-115 km/h and Mr Keramidas' assessment of 97-113 km/h. He said these assessments were speculative because they were based on the plaintiff's statement that he was able to reduce speed sufficiently to change down a gear. He noted that when giving his evidence in the Local Court the plaintiff was confused about the point of impact and that, when he spoke of changing down a gear, he might have been referring to earlier part of his journey. Further, he said, a gear change was inconsistent with the plaintiff's recollection that he first saw the defendant when the front of the utility was already across the double white lines. 37Dr Rechnitzer was not able to estimate the time that would be required to change gear, veer to the left and then to the right. Mr Keramidas agreed that these manoeuvres were taken into account in his estimates of speed. He also was unable to provide an estimate but said: No, I think that the best estimation I've been able to give is actually the estimation I gave in my report, and that's where, by the way, those additional speeds, or the higher speeds come from, because we agreed up to the point of skidding. So it would be somewhere in that range of 113 km/h. (Transcript 230.21) 38In the course of his evidence, Mr Keramidas reversed the opinion expressed in his report that a change of gear after the brakes were applied would further reduce speed prior to the point at which the skid marks appeared. He and Dr Rechnitzer agreed that it was not possible to change gear once the rear wheel was locked so that, if there was a change of gear, it occurred before the skid marks appeared. They further agreed that changing gear, in any event, might not result in any reduction in speed. 39The defendant relied on a statement of Ms O'Brien dated 6 February 2014 (Exhibit 11) to the effect that she was overtaken by a motorcycle on Freemans Drive between Freemans Waterhole and Palmers Road. She estimated the speed of the overtaking motorcycle to be 120 - 130 km/h. She drove at an average speed of 80 km/h and came to the scene of the accident. She stated that she was certain that the plaintiff was the motorcyclist who overtook her in the area of Freemans Waterhole. 40There was substantial debate between myself and Mr Wilson, counsel for the defendant, concerning the admissibility of this evidence having regard to the capacity of a driver of a motor car to estimate the speed of an overtaking vehicle and its relevance to the determination of the prebraking speed at which the plaintiff travelled immediately before the accident. 41The plaintiff ultimately did not oppose the admission of the statement into evidence and did not require Ms O'Brien for cross examination. However, I continued to express my reservations concerning the weight that could be given to this material, particularly having regard to the following: (1)Mr Keramidas and Dr Rechnitzer agreed that the distance from the roundabout on Freemans/Palmers Road to the point of impact was 9,700 metres and that this distance, at a constant speed of 80 km/h would be covered at the rate of 22.3 metres per second. If Ms O'Brien arrived at the point of impact two minutes after the accident, the plaintiff covered the same distance at an average speed of 110 km/h. If she arrived four minutes after the accident, the plaintiff's average speed was 177 km/h. (2)The defendant said that Ms O'Brien arrived about four minutes after the accident. In cross examination she agreed that, because of her shocked condition, she was unsure of times of events after the accident and that the time of Ms O'Brien's arrival could have been between 1 and 20 minutes after the accident. (3)Senior Constable Cleary said that at the time he interviewed Ms O'Brien she did not state that the motorcycle that overtook her was the motorcycle involved in the accident. Further she did not nominate the overtaking speed of the motorcycle. (4)In his evidence in the Local Court, Senior Constable Cleary did not recall that Ms O'Brien told him that motorcycle travelled at excessive speed. Further, he said that he did not believe the blue motorcycle referred to by Ms O'Brien was that ridden by the plaintiff because of the distance between locations. (5)Most significantly, notwithstanding this material, Mr Keramidas made no change to his opinion that the prebraking speed of the motorcycle was between 97-113 km/h. 42The parties provided a number of estimates of motorcycle speeds and required stopping distances in an effort to advance their positions concerning the cause of the accident. They included: (1)Mr Keramidas' Table of Time/Distance and Stopping Potential (Exhibit 5B) provided a calculation of the total stopping distances required at various speeds on the basis of a sight distance of 120 metres to the point of impact, perception/response time of 1.10 seconds and braking rate of 0.8 g. The table established that at speeds between 75 km/h and 125 km/h, the plaintiff, had he seen the defendant from a distance of 120 metres, could have stopped his motorcycle before impact. The conclusion that could be drawn from this table was that if the plaintiff was beyond the defendant's sight line at the time she started to turn across the northbound lane, his speed was more than 125 km/h. Alternatively, the plaintiff travelled at some lower speed but was unable to bring the motorcycle to a stop prior to impact because: (a)he was not paying attention; or (b)he misjudged the situation and thought that the defendant would have moved from his path of travel before he arrived at the point of impact. (2)Dr Rechnitzer challenged any finding that, on the basis of this table, at a prebraking speed of 125 km/h, the plaintiff could have stopped five metres prior to impact. He said this proposition assumed that the hazard was in fact perceived by the plaintiff at the distance of 120 metres and ignored a key point, namely that when the motorcyclist was 120 metres away the utility was also still moving towards the point of impact and had not yet crossed to the other side of the road. Mr Keramidas agreed. (3)Dr Rechnitzer also disagreed with the proposition that, if the plaintiff had not misjudged the situation and had taken emergency action earlier, it was likely that he would have arrived at the point of impact .5 of a second later and likely that he would have avoided impact. He said this proposition contained too many assumptions. (4)Another hypothetical proposition established that at a speed of 130 km/h or above the plaintiff would have been beyond the defendant's line of sight at the time she started to turn. If, at a distance of 120 metres, the plaintiff reacted to the emergency two seconds prior to impact, at a speed of 200 km/h, the collision would have been unavoidable. If he reacted to the emergency three seconds prior to impact, the speed would have been 145 km/h; at four seconds, 108 km/h. (5)Tables 1, 2 and 3 to Dr Rechnitzer's report analysed time and distances on the basis of his estimate of a prebraking speed of 90 km/h, Mr Keramidas' estimate of a prebraking speed of 97 km/h and Mr Keramidas' estimate of a prebraking speed of 113 km/h. Mr Keramidas accepted the calculations set out in these tables were mathematically correct. In each case, the analysis established that, unobstructed by a truck, the motorcycle was within the defendant's line of sight at the time at which she was about to cross the double white lines, even if her speed when crossing the northbound lane was 10 km/h as propounded by Mr Keramidas. The defendant's speed at the time of impact 43The report prepared by Senior Constable Cleary, who interviewed the defendant at the scene of the accident, contained no record of any estimate of the speed of the utility at the point of impact. 44The defendant was unable to state the speed at which she travelled at the time of impact. She did not come to a halt at any time before making the turn. As already noted, she described her speed at the point where she turned as between a walking and a jogging pace. She said she accelerated during the turn to between a jogging and a running pace. 45The defendant said that she was surprised when the motorcycle collided with the utility. This was because she tried to drive across the road as quickly as possible and kept up a solid pace to get to other side of the road because she knew the road was dangerous. 46She agreed that she wanted to check whether the gate was open and confirmed the evidence that she gave in the Local Court that she looked towards the gate for five seconds before making the turn for this purpose. She agreed that, if she took two seconds to cross the road to the point of impact, she did not look for oncoming traffic from the south for a period of seven seconds and that, while there was no motorcycle on the road at the start of that period, it must have appeared at some stage during that period. 47The defendant agreed that, had she looked to the road to the south during the period of five seconds prior to commencing the turn and had she then seen the plaintiff, she could have stopped and avoided the collision. 48Mr McDonald estimated that, if the utility was brought to a complete stop prior to turning and assuming an acceleration rate of +0.15 g, it would take 3.6 seconds to reach the point of impact. The time required would be less if the utility did not stop but commenced the turn with some forward velocity. 49In his second report, Mr McDonald noted information provided by the defendant that she slowed to between 5-10 km/h. He estimated that if she drove at steady pace of 10 km/h, she would travel a distance he estimated to be 9.5 metres in 3.4 seconds. If she accelerated at a typical rate while turning, the time required would be 2.1 seconds. 50Mr Jamieson reported that a turn of the nature undertaken by the utility typically took 3 seconds. The plaintiff saw the utility when the front wheels were over the double white lines and therefore when it was one second into the turn. The impact occurred 1.5 seconds later and therefore 2.5 seconds from the point where the turn commenced. 51Mr Jamieson said there was general agreement that the maximum time that the utility would have been exposed on the incorrect side of the road would have been 3 seconds, more probably 2. If it only blocked the lane for 2 seconds, the motorcycle was necessarily close when the defendant started to turn. He said it could take as little as one second to travel from the double white lines to the centre of the road. Since the traffic lane could be cleared entirely in 3 seconds, the proposition that the utility, which had not cleared the road, was 2 seconds into the turn was quite reasonable and indicated that the defendant started the turn when the motorcycle was 50 metres away. 52When asked if it was theoretically possible that the motorcycle was out of sight at the time the defendant started to turn, Mr Jamieson said: Well, of course, that's theoretically possible, except given the sighting distance to the south, namely the 120 metres there is an agreement on, the motorcycle would need to have been going like Mick Doohan, you know, to be out of sight in that two second turn time. (Transcript 181.42) 53Mr Keramidas referred to a police record that indicated that the defendant's speed at the point of impact was 10 km/h. I was unable to find this speed noted in any of the police records that were in evidence. I noted that Mr Keramidas had available to him a copy of the COPS report but the extract from that report that he set out at page 7 of his report made no reference to the speed of the defendant's motor vehicle. He confirmed that the defendant had been unable to provide an estimate of her speed although she indicated that she slowed but did not come to a complete stop before turning. 54Mr Keramidas estimated the speed at which the utility rotated on impact to be 16 km/h. He concluded that its speed at the commencement of the turn was 5 km/h and that at impact it was 10 km/h. He estimated that the defendant travelled 10 to 13 metres from the commencement of the turn to the point of impact involving 3.6 to 4.3 seconds. He agreed in the course of his evidence that this was a slow speed for a turning vehicle. He confirmed that his estimate was based on his assessment of the post accident dynamics of the utility and the defendant's evidence of a starting speed at walking pace that he estimated to be 5 km/h. 55Mr Keramidas calculated that at 3.78 seconds prior to impact the utility was starting turn but had not yet crossed the double white lines and he agreed that, if the plaintiff was then travelling towards her at 113 km/h, he would have been within the defendant's line of sight. 56Dr Rechnitzer assumed that the defendant slowed to 25 km/h, 20 km/h,15 km/h and then to a moderate turning speed of 10 km/h. He assumed a moderate level of acceleration to 15 km/h to the point of impact. On the basis of these assumptions, he calculated that the defendant's utility was about to cross the double white lines at 2.5 seconds before impact and that it crossed the double white lines at 2 seconds prior to impact when it was 7 metres in travel distance from the point of impact and the plaintiff was 48 metres from that point. The utility was then in a position where it would have been apparent to the plaintiff that it would cross into his path. The involvement of a truck 57Mr Keramidas and Dr Rechnitzer agreed that, if the plaintiff's line of sight was blocked by a truck, it was likely that the defendant's line of sight was similarly blocked. They agreed that it would be inappropriate for the defendant to commence a right turn in such circumstances and that a motorcyclist who could not see the road ahead should be prepared to deal with unexpected hazards. 58The plaintiff and the defendant differed as to its description and location but they agreed that there was a truck in the southbound traffic lane prior to the accident. The plaintiff said the truck was of the type used at the Teralba Quarry, having a yellow coloured prime mover with two trailers that were open at the top, similar to the truck depicted in the photograph, Exhibit F. The defendant agreed that it was common to see trucks of that type on Wakefield Road. She said this was not the type of truck that she observed. She described a smaller table top truck that was carrying a number of poles on its rear tray. 59It must be accepted therefore that there was a truck on the road and that, regardless of its size and nature, it had the capacity to interfere with the sightlines available to the plaintiff and the defendant. 60The defendant denied that the truck had any effect on her line of sight. This part of her evidence must be weighed against her concession that she did not look to the south for up to five seconds before starting to turn, raising the question of the extent to which it could be relied upon. Mr Keramidas agreed that, if the defendant pulled over in the manner she described to allow the truck and other vehicles to pass, the truck would have been well beyond the curve when the plaintiff arrived at the point of impact. Dr Rechnitzer was prepared only to accept that the truck could have been well beyond the curve at that time. 61Mr Jamieson and Dr Rechnitzer did not deal with the issue of the involvement of the truck. Both said it was not necessary because the physical evidence supported the plaintiff's claim that the defendant turned right across his path of travel. Dr Rechnitzer added that he disregarded the issue because the evidence given in the Local Court proceedings created confusion about whether the truck was present at all and, if so, whether its presence was relevant. 62The defendant raised concerns about the extent to which the plaintiff's evidence concerning the truck was reliable. 63Although the plaintiff reported the presence of the truck when he provided a statement to police on 27 September 2010, it was difficult to comprehend why, if the presence of the truck was considered to be such a significant feature, its involvement was not referred to in the plaintiff's Personal Injury Claim Form dated 18 October 2010 or in the pleadings set out in the Statement of Claim filed on 19 September 2011. 64The plaintiff insisted that he told everyone to whom he gave an account of the accident that he first saw the defendant's utility when he passed the truck, including colleagues, nurses and doctors and his solicitor. He said the handwriting setting out the description of the accident in the claim form was that of Mr Argiris, his solicitor, from whom no evidence was provided. 65Mr Ryan, the solicitor who handled the plaintiff's claim, provided affidavit evidence to which he attached file notes dated September and October 2011 in which the plaintiff's claim of obstruction by the truck was recorded. Mr Ryan said he did not take a detailed history of the accident because, until after the Local Court proceedings that took place later in October 2011, he thought that liability was not in issue. 66The plaintiff acknowledged that his evidence in the Local Court concerning the site of the accident was incorrect. In the course of that evidence he stated that the truck passed the curve and was travelling towards him, so that he cleared the truck when he was half way up the hill and was some distance from the curve. 67In the District Court he said the truck was to the north of the curve, travelling towards him as he approached the curve. He said he passed the truck as he came towards the apex of the curve. 68The Site Diagram prepared by Mr Keramidas placed the apex of the curve at about 50 metres from the point of impact. This was consistent with the plaintiff's claim that he had a distance of only 50 metres within which to deal with the emergency that faced him. 69In explaining the inconsistency in his evidence, the plaintiff said that at the time he responded to the prosecutor's questions in the Local Court, he had not seen the police photographs and had not revisited the site of the accident. He therefore mistakenly and honestly believed that it occurred further to the south of the position shown on the photographs. 70When asked to mark on Exhibit A1, police photograph 24, the point where he cleared the back of the truck, the plaintiff placed his mark at a point on the curve that the defendant contended was only 25 metres from the point of impact and therefore clearly inaccurate. I did not accept that this inaccuracy could be taken into account in deciding whether the plaintiff tailored his evidence concerning the involvement of the truck to avoid a finding of contributory negligence. It was clear, by reference to Mr Keramidas' scaled Site Diagram and with the benefit of the site inspection undertaken prior to the hearing of evidence, that a telescopic lens was used to take this photograph so that the perspective was foreshortened. It was inappropriate therefore to use the mark on the photograph as a measure of distance. Rather, it appeared that the plaintiff placed the mark at a point that he considered to be the apex of the curve. 71The plaintiff was also asked to mark the position of the rear of the truck when he passed it on the Site Diagram. He nominated its position at some distance from the apex of the curve. The defendant measured the distance from the rear of the truck, as indicated, based on the scale at which the diagram was prepared, to be 75 metres from the point of impact. 72Once more, I had some difficulty in expecting the plaintiff, while in the witness box, to be in the position to mark the truck's position with precision on a scaled drawing. However, I expected that he would recognise the point of the apex of the curve on that drawing so that his representation of the rear of the truck at a point further to the south suggested two possible conclusions. One was that he really could not state with accuracy the point at which he passed the truck. Alternatively, that, as stated in the Local Court, the point at which the two vehicles passed was to the south of the apex of the curve and more distant than 50 metres from the point of impact. FINDINGS Credit 73The defendant provided confused and conflicting evidence, both to the Local Court and the District Court, concerning the actions that she undertook when approaching the point where she turned to cross the road. I did not have the opportunity to observe her when she provided evidence to the Local Court. The plaintiff acknowledged the obvious fact that she was clearly intimidated by her circumstances when giving evidence in the District Court. It was clear that this affected her capacity to give a coherent account of her actions. 74I have already referred to the inaccuracies in the plaintiff's evidence in the Local Court and to the inconsistencies in his evidence in the District Court. 75The result was that neither party could be regarded as a satisfactory witness. The evidence of each was suggestive of reconstruction, a feature that might be expected when the split second nature of the accident is taken into account. The result was that, to a significant degree, I decided the issues by reference to expert opinion. Primary liability The defendant's speed 76In formulating my findings, I considered first the speed at which the defendant undertook the crossing of Wakefield Road. Determination of this factor enabled an estimate to be made of the time available to the plaintiff prior to impact that necessarily affected the estimation of the plaintiff's prebraking speed. 77Mr Keramidas acknowledged that his assessment of the defendant's speed was low. Although the defendant confirmed in evidence in chief her description of speeds between walking, jogging and running paces, she also confirmed that she did not know the speed at which she travelled, she did not come to a complete stop before turning and she accelerated in the course of the turn because she wished to clear the northbound lane as quickly as possible and place herself out of danger. 78These features all suggested that she travelled faster than estimated by Mr Keramidas and that her speed was more probably within the range that was adopted by the remaining experts and that which Mr Jamieson said was generally accepted. 79I found that the defendant commenced her crossing of the northbound lane of Wakefield Road at a speed of about 10 km/h and that she accelerated to a speed of 15 km/h at the point of impact. This in turn lead to the conclusion that the defendant started her crossing of Wakefield Road at about 2.5 seconds prior to impact. 80The parties accepted that, if the plaintiff's prebraking speed was between 90 km/h and 113 km/h at 2.5 seconds prior to impact, the defendant would have been able to see the plaintiff as she started her turn across the double white lines unless the truck obstructed her line of sight. The plaintiff's speed 81As interesting as the many hypothetical propositions discussed by the experts might have been, they did not depart from their estimates of prebraking speed between 90 km/h and 113 km/h. 82I could not accept that on Wakefield Road, a two lane road with curves and undulations, intersections and driveways, any motorcyclist would consider travelling at a speed of 200 km/h or even 145 km/h. To do so would be reckless to the point of becoming suicidal. My assessment of the plaintiff, a professional person of mature age, was that, although from time to time he might exceed the speed limit, he was not a person who would indulge in such risk taking behaviour. 83The only basis for the suggestion that the plaintiff might have travelled at 130 km/h came from the statement of Ms O'Brien. I have already noted my reservations concerning the weight to be given to this part of the evidence. My doubts concerning this material were compounded by the evidence of the experts, none of whom placed the plaintiff's speed at 130 km/h. 84Disregarding Mr McDonald's opinion concerning speed for reasons already noted, the maximum speed propounded by any expert was 113 km/h. 85I concluded that the speeds of 97 - 113 km/h estimated by Mr Keramidas were overstated. His estimates were based upon the assumption that the defendant turned slowly and that the plaintiff undertook the retardation manoeuvres that he described, in particular the gear change. Mr Keramidas agreed that the plaintiff's evidence of retardation manoeuvres was improbable if he was confronted with an emergency so extreme that he thought he would die. In any event, Mr Keramidas and Dr Rechnitzer agreed that these manoeuvres would have to take place before any brakes were applied if they were to have any effect on the plaintiff's speed. I noted the plaintiff's evidence that the measures that he believed he implemented were undertaken after he applied his brakes. 86Evidence of the plaintiff's pre-skidding manoeuvres and his confusion about precisely where he and the truck passed each other, raised the possibility that the point at which he apprehended the need to address an emergency was greater than 50 metres from the point of impact and therefore that his speed was greater than 90 km/h. 87This material must be weighed against Mr Jamieson's reasoning that at the agreed pre-skidding speed of 90 km/h and with 2 - 2.5 seconds within which to address an emergency, allowing for 13 metres braking before the rear wheel locked and 12 metres of skidding, the distance covered during a very short perception response time of 1 second allowed for the remaining 25 metres to account for the 50 metre distance claimed by the plaintiff. 88Ultimately, I accepted the logic of Mr Jamieson's reasoning. I found that, if the plaintiff reacted to the emergency when he saw the front wheel of the utility cross the double white lines, he was then about 2 - 2.5 seconds from impact and at a speed of 90 km/h, he was 50 metres from impact. 89I found that this did not allow the plaintiff sufficient time within which to change gear. I found that any movement to the left and right within the available 50 metres distance had little effect on his prebraking speed. 90As a consequence I found that the plaintiff's prebraking speed did not exceed 90 km/h to any significant degree. The defendant's negligence 91These findings lead inevitably to the result that the defendant breached her duty of care to the plaintiff either because she failed to look to the south for oncoming traffic before commencing her turn across Wakefield Road or because she commenced the turn at a time when her capacity to see oncoming traffic was obscured by the presence of a truck. CONTRIBUTORY NEGLIGENCE The truck 92Mr Jamieson and Dr Rechnitzer did not deal with the issue of the involvement of the truck. Both said it was not necessary because the physical evidence supported the plaintiff's claim that the defendant turned across his path of travel. Dr Rechnitzer added that he disregarded the issue because the evidence given in the Local Court proceedings created confusion about whether the truck was present at all and, if so, whether its presence was relevant. 93I did not accept that either party accurately described the point at which the plaintiff passed the truck, whatever its description. 94The defendant agreed that she did not look ahead for up to 7 seconds prior to impact. Her statement that the truck that she saw was well beyond the point of the curve when she started to turn was therefore unreliable. 95Although his solicitors failed to note its significance, there were records that confirmed the plaintiff's evidence that he consistently reported the involvement of the truck in obscuring his line of sight at the first opportunity and consistently thereafter. However, the plaintiff's placing of the truck to the south of the apex of the curve both in the Local Court and the District court suggested that it was improbable that it obstructed to any degree his line of sight at the critical moment. 96This was a matter of suggestion only. I agreed with Dr Rechnitzer that the evidence concerning the truck was confused to the point where it was necessary to disregard it. 97My finding therefore was that the claim concerning the involvement of the truck should be rejected. The plaintiff's negligence 98In respect of contributory negligence, the Civil Liability Act 2002 provides: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 99The question then to be answered was whether the plaintiff adopted the standard of care of a reasonable person in failing to apprehend the emergency in time to stop when he had a clear view of the approaching defendant. The plaintiff conceded that rejection of his claim that his line of sight was obstructed by a truck would result in a finding of contributory negligence on his part. No other reason was advanced to explain why the plaintiff did not react at an earlier stage to the presence of the defendant on the road. One might speculate that he expected that she would see him and stop or increase the speed at which she crossed the road. 100The plaintiff, paying attention ought to have seen the defendant as she approached the point where she turned and before one of her front wheels crossed the double white lines. Dr Rechnitzer's table demonstrated that the defendant's wheels were at the point of crossing the double white lines at about 2.5 seconds from impact. At 80 km/h, this would have allowed the plaintiff a stopping distance of 61 metres or 5 metres more than required. Theoretically therefore, according to the Table of Time/Distance & Stopping Potential, the plaintiff could have bought his motorcycle to a halt five metres prior to impact. 101I accepted that his failure to take the precautionary step of slowing, at least to the speed limit, established the basis for a finding of contributory negligence on the plaintiff's part. 102Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464 is a recent decision of the Court of Appeal (McColl, Basten, Macfarlan JJA) in which principles of contributory negligence were dealt with. After noting the provisions of s 5R of the Civil Liability Act, at [44] Justice McColl, dealing with the issue of apportionment, said: While s 5R of the Civil Liability Act required the primary judge to apply ss 5B - 5E of the same Act in determining whether the appellant had been guilty of contributory negligence, the question of how the apportionment exercise is to be undertaken requires the court to determine what is just and equitable in the circumstances of the case, as was the position when Podrebersek was decided. 103I did not accept the defendant's contention that the plaintiff's contribution to the damage he suffered in the accident should be assessed at a level as high as 75%. His neglect arose out of his assumption that the defendant would take care in crossing the road. I considered his failure to drive defensively was of lesser culpability than the defendant's failure to pay any attention at all to the traffic travelling towards her. Further, motorcyclists are more vulnerable to injury than those who have the protection of their vehicles and the airbags with which they are fitted. On the principles established in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, the defendant had the greater capacity to cause harm and must be found liable for a greater percentage of responsibility for the damage caused to the plaintiff. 104I assessed contributions of the parties at 75% to the defendant and 25% to the plaintiff. ORDERS 1Verdict for the plaintiff. 2The plaintiff's damages are to be reduced by 25% to take account of his contributory negligence. 3The proceedings are adjourned to a date to be fixed to deal with issues of costs and interest and to make final orders. 4My reasons are published. ********** 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: 14 March 2014