Con Condopoulos v Insurance Australia Limited trading as NRMA Insurance [2017] NSWDC 218

District Court New South Wales

Medium Neutral Citation: Con Condopoulos v Insurance Australia Limited trading as NRMA Insurance [2017] NSWDC 218 Hearing dates: 24 July 2017 Decision date: 28 July 2017 Jurisdiction: Civil Before: Montgomery DCJ Decision: Ex tempore Catchwords: Procedural and other rulings Category: Principal judgment Parties: Con Condopoulos (Plantiff)

Insurance Australia t/as NRMA Insurance (Defendant) Representation: Counsel: Mr Rohan de Meyrick (Plantiff) Mr Anthony Renshaw (Defendant)

Solicitors: Mr B Cortese (Plantiff) Ms B Casado (Defendant) File Number(s): 2014/00051544

Judgment 1. HIS HONOUR: The Court in this case, having observed the relatively young adult plaintiff showing restriction of rotation of neck and a clawed left hand, and hearing of his other significant mental as well as physical challenges, cannot but feel sympathy for him. Weighing heavily within that moral and compassionate grasp of his claim is that the subject motor vehicle accident involved the death of one of his best friends, Mr Hez Soran. They rode together upon the plaintiff's large and powerful motorcycle at a speed of 120 kilometres per hour, along River Road, Greenwich. The incident occurred at about 1am on 19 February 2011. They were both 21 years of age. The section of River Road was a 50 kilometre per hour speed zone, suburban secondary road. There is no direct evidence of the mechanism of the collision. 2. In addition to the above factors, the agreed facts are that River Road was winding and hilly and that shortly before the crash police radar detected the motorcycle pass at 120 kilometres per hour in the opposite direction to that then attended by police at a random breath testing station. At a crest of River Road, at the intersection with Greenwich Road, the motorcycle became airborne for 25.9 metres, before crashing explosively on landing beyond the intersection. 3. The sole liability issue in the case was whether the evidence proved on 4. The balance of probabilities that the plaintiff was the pillion passenger. 5. In these reasons I use "driver" to mean the person in control of the motorcycle. There is no dispute that the collision resulted from the negligence of the driver. Obviously, either Mr Soran or the plaintiff was the driver. The defendant pleads contributory negligence of the plaintiff in the event that the Court finds that he was the pillion passenger. 6. The plaintiff claimed to have no recollection of events between some hours before the collision and a time in hospital after the collision, which he understood to be, but was uncertain as to its timing, about a week later. The plaintiff claimed to last recall his friend, Mr Denaro, picking him up from his parent's home, at which he lived, to take him to a party for Mr Denaro's god-sister. The evidence of Mr Denaro placed that time at about 8pm on 18 February 2011. 7. Each party tendered expert crash analysis evidence. There was no objection to the reports, and neither expert was required for cross examination. In opening, counsel for the plaintiff, after introducing the expert engineers as Mr Jamieson for the plaintiff and Mr Anderson for the defendant, candidly described the reports as not determinative of the question of driver and pillion and passenger. He said at transcript p 4: "Yes that is, and the geography or the geometry of that intersection is such that it appears at that speed an accident was inevitable." 1. Both agree that there was some observations by the police when they arrived at the scene as to where each of, if I can use the rather callous description but it is practical, the three objects involved in the one vehicle accident were the two passengers and the vehicle itself, and both experts looked at the photos and read the police statements, et cetera, and they have observed that the furthest away from the intersection was the bike, followed by Mr Soran, and then the closest to the intersection was Mr Condopoulos. Both experts agree that you really could not read a huge amount into that. They observe that sometimes when a bike hits a stationary object like a car one expects the pillion to be thrown further because they are flipped over the back as it were. They both agreed that this was not that kind of accident. It was more of an explosive event where the bike became airborne. 2. The one minor difference between the two reports, I suppose, is that Mr Jamieson seems, I anticipate you will observe, to think that even if it was not one of those kinds of accidents where the bike flips, that perhaps prima facie the fact that Mr Soran ended up closer to the bike or further away from the take off point might say something about the fact that he was more likely the rider. I am not going to suggest he states that point with the greatest of confidence, and ultimately both experts are very much unsure as to what one can read, I think, into the circumstances of the scene.