Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Nominal Defendant v Rooskov [2012] NSWCA 43
• Hearing dates: 6 October 2011
• Decision date: 20 March 2012
• Before: Campbell JA at [1]; Young JA at [148]; Garling J at [149]

Decision

1. Appeal dismissed.

2. Appellant to pay the costs of the Respondent of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - contributory negligence - apportionment - collision of unknown motor vehicle with bicycle - gross intoxication of plaintiff and failure to wear helmet - significant injuries to spine - failure to take care only relevant to apportionment where particular failure led to particular harm - onus on defendant to show particular failure - unable to prove nexus of intoxication to loss of control - no error shown in judge's assessment of 5% contribution for lack of helmet; APPEAL AND NEW TRIAL - appeal - general principles - interference with Judge's findings of fact - whether trial judge failed to use or misused forensic advantage - trial judge found plaintiff to be a witness of truth and persuaded by consistency of contemporaneous evidence - insufficient evidence at appeal to establish misuse of forensic advantage - trial judge's findings undisturbed
• Legislation Cited: Civil Liability Act 2002; Evidence Act 1995; Freedom of Information Act 1989; Law Reform (Miscellaneous Provisions) Act 1965; Motor Accidents Compensation Act 1999
• Cases Cited: Abalos v Australian Postal Commission (1990) 171 CLR 167; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452; Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; Blacktown City Council v Hocking [2008] NSWCA 144; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389; Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1; Jones v Dunkel (1959) 101 CLR 298; Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349; Joslyn v Berryman (2003) 214 CLR 552; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361; Manly Council v Byrne [2004] NSWCA 123; Monie v Commonwealth of Australia [2007] NSWCA 230; Morley v ASIC [2010] NSWCA 331; (2010) 274 ALR 205; Phillis v Daly (1988) 15 NSWLR 65; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; Podrebersek, Liftronic Pty Ltd v Unver (2001) 179 ALR 321; Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306; Strong v Woolworths Ltd [2012] HCA 5; Trawl Industries of Australia Pty Limited v Effem Foods Pty Ltd (1992) 27 NSWLR 326; Wynbergen v Hoyts Corporation Pty Ltd [1995] HCA 52; (1997) 72 ALJR 65; Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; (2009) 53 MVR 187
• Category: Principal judgment
• Parties: The Nominal Defendant (Appellant); Nigel Andrew Rooskov (Respondent)
• Representation: Counsel; K P Rewell SC (Appellant); G M Watson SC; R Goodridge (Respondent); Solicitors; Curwoods Lawyers (Appellant); Firth the Compensation Lawyers (Respondent)
• File Number(s): 2010/418497

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2010-11-25 00:00:00
• Before: McLoughlin DCJ
• File Number(s): 2009/333360

Judgment

1 CAMPBELL JA :

Nature of These Proceedings

2 The Respondent suffered some significant injuries in the afternoon of 18 May 2005 when he was riding his pushbike in a southerly direction along Walker Street, Helensburgh. The bike was a mountain bike of sturdy construction. The Appellant accepts that the accident occurred at some time between 3:30 pm and 4:30 pm.

3 The Respondent brought proceedings in the District Court against the Nominal Defendant. His Statement of Claim alleged that he had been "struck from behind by an unidentified motor vehicle which forced him off the road and into a ditch."

4 In a judgment given on 25 November 2010 his Honour Judge McLoughlin accepted that the plaintiff had been injured by the negligence of the driver of an unidentified motor vehicle. He assessed the total damages suffered by the Respondent in the sum of $586,781.24. The judge accepted that the Respondent had been guilty of contributory negligence. The judge assessed the extent of that contributory negligence as being 5%. Thus, he awarded damages of $557,442.18.

5 The Nominal Defendant appeals against the judgment below. It makes no challenge to the judge's assessment of damages. It challenges both the finding that the accident was caused by the negligence of the driver of an unidentified motor vehicle, and, if that contention is not successful, the assessment of contributory negligence. Instead of 5%, the Nominal Defendant contends that the contributory negligence of the Respondent should have been assessed at 40%. Those submissions will require a detailed consideration of the evidence.

6 Though the statement of claim attributed various particular acts of negligence to the driver of the unidentified motor vehicle, the substantial actual contest both at the trial and on the appeal concerned whether there was an unidentified motor vehicle at all, and if so whether the accident was caused by that vehicle.

7 On the appeal, Mr K P Rewell SC appeared for the Appellant. Mr G M Watson SC and Mr R Goodridge appeared for the Respondent.

The Documentary Evidence

At the Scene of the Accident

8 An ambulance report records that on the day of the accident an ambulance was booked at 16:33, was in contact with the patient by 16:36, and departed the scene at 16:54. Expanding the abbreviations, it states:

"Call to male hit by car. On attendance patient lying on side of road, found by passers by. Patient states he was hit by car whilst riding pushbike home from club. Patient was wet & cold, states he left club at approx 2pm. On examination patient oriented 0/0 pain to lower thoracic spine, nil deficits, patient's abdomen rigid and distended, laceration to bridge of nose."

That report was signed by three ambulance officers. None of them was called to give oral evidence.

9 Glasgow Coma Scores recorded by ambulance officers at 16:40 and 17:00 showed the Respondent achieving the top score in each of the three dimensions of the test.

10 A report of the Crash Investigation Unit of the Southern Region of NSW Police was tendered in evidence. It had been obtained under the Freedom of Information Act 1989 , and so had some portions blacked out. However under the heading "contemporaneous notes" appears a handwritten note that included:

"18/5/05 6.40pm

Cons Matthew Poort 4.49pm

[blacked out portion]

Apparent occurred 4.30pm

White or Silver Wagon"

11 The "contemporaneous notes" went on to identify the bike, and note that there was no damage to the frame or pedals, no damage to or buckling of the rims, no scrubbing on the tires, no damage to the seat, and that the chain was still on its cogs. They continued:

"4 Schooner beer full strength

12 md

1pm

Roast dinner at Pub."

12 I would infer that those notes were made by Constable Matthew Poort, a police officer stationed at or close to Helensburgh, who was the first police officer to arrive at the scene of the accident. I would infer that Constable Poort made his notes at 6:40 pm on the day of the accident, recording that he had arrived on the scene at 4:49 pm. Constable Poort was not called as a witness by either side.

At Wollongong Hospital Soon After Admission

13 The ambulance took the Respondent to Wollongong Hospital.

14 A record of Wollongong Hospital shows that the Respondent was admitted to the hospital at 17:25 on 18 May 2005. It identifies the problem with which he presented as "cyclist hit by car" . The triage nurse noted "cyclist vs car" . Expanding abbreviations, the record stated that the problem with which the Respondent was presenting was: "? Abdominal pain, post ? altercation with car. Facial lacerations, no other deformities, lacerations. Back pain ++" . It gave a provisional diagnosis of "trauma - bike vs car" .

15 A trauma admission form of Wollongong Hospital, completed at 17:30, again identified him as having the highest response in each category on the Glasgow Coma Score. It recorded the mechanism of the accident as being: "? Hit by car. Found side of road. Complaining of pain mid back. Stable at scene."

16 It recorded that there had been a loss of consciousness that was immediate.

17 A Wollongong Hospital note from 17:40 on 18 May 2005 records that the Respondent was "found in 2m decline beside road. States he fell from bicycle." It also states that he was "vocalising pain" . The hospital records show that he was given 2.5 mg of morphine at 17:35, and further doses of morphine, each of 2.5 mg, at 17:40, 18:20, 18:55, 19:05, 19:25, 19:50 and 20:20.

18 At 18:00 the nursing record records "patient unclear on events" .

19 An entry at 18:15 records that the patient's clothing was taken by Constable Paul Ryan from Wollongong police. There is no evidence of what, if anything, of relevance the Respondent said to Constable Ryan. The entry records "pain controlled with morphine" .

20 A note at 21:35 records that the patient was "still in a lot of pain" and "has had a total of 20 mg morphine with little relief" .

Sergeant Castles Investigates the Scene

21 Sergeant Gary Castles, of the Crash Investigation Unit of the NSW Police, attended the scene at 6:40 pm. He prepared a COPS report on the evening of 18 May 2005. It included:

"At 4.30pm [on 18 May 2005] the rider was located by persons lying in a ditch on the eastern side of Walker Street at the stated location. The rider was spoken to where he allegedly stated that he was struck by a south bound vehicle, possibly a white or silver Holden Commodore. This was stated to witnesses and police at the time. The rider was conveyed to Wollongong Hospital by road ambulance and admitted. A blood sample was obtained from him ... Apparently the rider admitted to nursing staff that he had consumed around 6 schooners of beer that afternoon before the collision and could not recollect how the collision occurred. Nursing staff told him the version that he had been given [sic] but stated he could not be sure that happened.

On the information provided the matter was treated as a hit and run collision. Forensic Service and Crash Investigation Unit attended where the scene and bike were examined. A set of tyre skid marks where [sic] located and documents. The bike was examined and showed no sign of damage that indicated that it had been hit by a vehicle. A search of the area located the point of entry to the drainage ditch. It appears that the rider has entered the eastern grassed shoulder of Walker Street and entered the ditch face first. The rider has then tumble[d] a short distance and came to rest.

The rider was spoken to by police at Wollongong Hospital where he was asked what had occurred.

He stated that he may have been hit by a car but was not sure. He stated he saw a car come towards him but was not sure that he was hit. When told that his bike had no damage he did not reply.

Based on the physical evidence, or lack thereof, it is highly doubtful that the rider's version of events is correct."

22 In oral evidence Sergeant Castles explained that his note that the Respondent said he was "struck by a southbound vehicle, possibly a white or silver Holden Commodore" was something he was initially told by the police officer who had been on the scene. Sergeant Castles was unable to recall, at the time of giving evidence, whether the " witnesses" there referred to were witnesses to the accident itself, or the first persons at the scene who found the Respondent. He gave evidence that part of his report was based on what the police officer at the scene had told him, and that some, or maybe all, of it (the evidence was not clear) was obtained by Sergeant Castles transcribing notes made in the other policeman's notebook.

Later Hospital Records

23 While at Wollongong Hospital the Respondent came under the care of Dr M Jerry Day. Dr Day obtained his qualifications in the United States, including becoming a Fellow of the American College of Surgeons and obtaining a diploma from the American Board of Neurological Surgery. He has also become a Fellow of the Royal Australian College of Surgeons, and was a consultant neurosurgeon at the Wollongong Hospital. He continued to be a treating doctor of the Respondent after the Respondent's discharge from hospital.

24 A litigation report from Dr Day stated that he had first seen the Respondent on the date of his admission to Wollongong Hospital on 18 May 2005. Making an agreed correction to his report, he stated that the history he obtained:

"... was that the patient had been found on the side of the road following an accident and it was not known at the time if he had fallen from a bicycle or had been hit by a car and knocked off a bicycle."

25 Dr Day reports that at that time the Respondent "had severe mid thoracic spine pain" . As well as various broken bones "he also had severe concussion and traumatic brain injury resulting in post traumatic amnesia." Dr Day reports on him having "severe pain with difficulty to control, this required intravenous infusion of morphine and ketamine, later converted to oral analgesia" .

26 A note made by the Acute Pain Service at 13:00 on 19 May 2005 states:

"Given patient's absence of memory for about 2 hours prior to arrival time have contacted occupational therapy to consider PTA assessment."

"PTA assessment" is post traumatic amnesia assessment.

27 The nursing notes of 19 and 20 May show that the Respondent continued in pain, and continued to be administered morphine.

28 A nursing note at 11:45 on 20 May 2005 records the post-traumatic amnesia test administered to him. It included the note:

"patient could not remember and recognise the three picture cards I showed him yesterday. Score today is 9/12. The same pictures - pen, bird & flower are asked patient to remember for tomorrow."

29 A nursing note from 12:30 on 20 May 2005 records "patient cannot remember mechanism injury" .

30 A nursing note from 04:00 on 21 May 2005 recorded that he had been given morphine at 22:00 the previous evening, had requested more morphine at [indistinct, but possibly 03:00] and received it. The 04:00 note said that the patient was:

"extremely demanding, found crawling on floor unable to explain why other than increased pain ... patient swearing and demanding injections. Patient requested further injection 40 minutes post 10mg 1m morphine. Patient not due same. Tamil/Panadol given as ordered."

31 The pain continued on 22 May 2005 and 23 May 2005.

32 A note of a social worker at 14:50 on 23 May 2005 records "patient advised of still being vague about his accident."

33 In the evening of 23 May 2005 the Respondent was transferred to Coledale Hospital. The nursing notes that were made there show that he continued to be given morphine on 24 and 25 May.

34 A note of an occupational therapist at Coledale Hospital on 25 May 2005 records:

"Poor recall of incident though now states may not have been hit by car. Patient states he was carrying a considerable amount of money in wallet - now missing."

35 A note of a case conference on 25 May 2005 reports a social worker telling the meeting "patient unclear about events of accident. Now not sure whether had car accident."

The Newspaper Report

36 A report in the Helensburgh & District News was admitted without objection. It said that the accident occurred about 4:30 pm. The report stated:

"He remembers little of what occurred apart from being thrown through the air 'like a catapult' and ending up in a ditch.

'I was off the road and I was worried no-one could see me,' Nigel said from his hospital bed in Wollongong.

'I couldn't move my legs so I grabbed onto blades of grass and dragged myself closer to the road. I heard a few cars go past before someone saw me.'

Stanwell Park carpenter Paul Kelly was first on the scene, finding Nigel semi-conscious and covered in blood.

He flagged down motorists who stopped to look after Nigel while Paul went to get the ambulance. 'He was quite dazed and I was worried he would stumble onto the road,' said Paul.

Nigel came off his bike in the 80km/hr zone but could not recall hearing a car. His $700 mountain bike has been returned to the family but had only minor damage.

...

Constable Matthew Poort of Helensburgh Police said police were still investigating the accident and had not determined if it was a hit and run."

37 The date of that newspaper report is not established, but it could not be earlier than 23 May 2005 because it states, alongside a picture of the Respondent, "Nigel Rooskov has been moved to Coledale Hospital." However, the reference in the report to the Respondent speaking " from his hospital bed in Wollongong" suggests that the interview on which it is based occurred at some indeterminate time prior to his move to Coledale.

Later Documentary Evidence

38 A neuropsychological assessment report prepared by NSW Health records that the Respondent "was out of PTA on 30 th May 2005, having scored 12/12 on three consecutive days (30 & 31 st May, 1 st June 2005)".

39 The Respondent attended Dr Day on dated 27 July 2005. A report of Dr Day to a Dr Kemper dated the same day, includes:

"He states his memory is improving however, he does not recall any of the details of the accident when he was hit by a car while riding a bicycle. This fact was unclear when he was in hospital primarily because of his head injury and his difficulty in recalling what happened to him."

40 Dr Day later reported to the Respondent's solicitors on the 27 July 2005 visit as follows:

"He had continued severe complaints of mid thoracic back pain. He remained unclear on details of the accident and I told him at that time I was suspicious that he had been struck by a motor vehicle given the severity and more simplicity of the fractures he sustained which I felt were NOT probable as a result of a simple fall from a moving bicycle." (Capitalisation in original)

41 Mr Michael Griffiths is a biomedical and mechanical engineer. An expert report that he wrote was tendered, but he gave no oral evidence. His qualifications include a Bachelor of Mechanical Engineering, and a Masters Degree in Biomedical Engineering, which includes such subjects as anatomy, physiology, pathology, and biomechanics of the human body. His practical experience has included extensive work in investigation of motor accidents and practical steps that can be taken to avoid or lessen injury or death as a result of motor accidents. By comparison with the opinion I have just quoted from Dr Day, Mr Griffiths expressed the view that the Respondent's injuries "were within the range of what might have occurred from a simple fall from a pedal cycle after a loss of control." That opinion was expressed in a supplementary report commenting on a report of Dr Short. Mr Griffiths does not specifically consider Dr Day's opinion. Further, the account that Mr Griffiths gives of the injuries of the Respondent does not consider the nature of the fractures that the Respondent sustained. However, so far as acceptance of Dr Day's opinion is concerned, it is not established whether Dr Day was aware of the speed at which the Respondent was riding immediately before the accident - but neither was Dr Day required for cross-examination to investigate his knowledge of that topic.

42 The report of the Crash Investigation Unit included a copy of handwritten notes made in a police note book on 1 August 2005, which record that the Respondent gave the following account of the accident:

"I remember a car was coming the other way a few seconds in front. I remember a car coming from behind me. This car locked its brakes while it was behind me. I thought I was going to get hit. I don't no [sic] wether [sic] it hit me but I remember trying to get [off?] the side of the road. I thought it was going to hit me. I don't remember much after that. I sought [sic] of remember regaining consciousness and trying to get out of the ditch. I remember coming to but I couldn't use my legs. I dragged myself up towards the road. I think the accident probably happened more around 3pm as I was laying in the ditch for a long time before I got out and was found."

43 That statement records him as stating that he had his first drink at 12:00 pm, his last drink at 2:30 pm and that his drinks were "schooners" , about 6 to 8 Reshes [sic]" . The questions continued:

"Q) Food?

A) I cannot remember if I had lunch.

Q) Do you remember what the car looked like?

A) I didn't see the one from behind. I think the one in front was a white van.

Q) Is there anything else you could tell me about the accident.

A) No not really. I don't remember much."

44 That statement came to be paraphrased in the COPS report as:

"... after consuming approx 6 to 8 schooners at the Helensburgh Bowling Club Rooskov then rode his bike along Walker Street Helensburgh in a southerly direction when as a VEH was travelling in a northerly direction towards him he heard the sounds of a VEH travelling in a Southerly direction close behind lock up it's [sic] brakes. The rider was unsure if he was hit by the VEH from behind but the next thing he remembered was waking up in the ditch on the side of the road.

Rooskov was unsure how long he was in the ditch but remembers waking with severe back pain. He then dragged himself from the ditch to the side of the road until approximately 4.20pm when he was noticed by a passerby. He was then transported by ambulance to Wollongong Hospital.

... He still does not have a clear memory of the incident."

45 On 12 August 2005 the Respondent submitted a form making a claim against the Nominal Defendant. His account of the accident in that claim form was:

"I was travelling south on Walker Street, Helensburgh NSW, on the left hand side of the road. I heard a car approaching, seconds latter [sic] I heard screeching tyres and I was hit on my right side. That's the last thing I remember as I was knocked unconscious."

46 A report of Jason Cusack, clinical psychologist, dated 29 November 2005 was based on assessments of the Respondent that were conducted on 14 and 28 October and 4 November 2005. That report starts its history by saying unequivocally that the Respondent "reports being hit by a motor vehicle which subsequently failed to stop" . It also records that he:

"... reported pockets of memory shortly after his accident, including crawling from a ditch at the side of the road, with no movement in his legs. He also recalled interacting with police at the scene of the accident.

47 It also stated that he:

"... reported pockets of memory at the time of his injury that suggested to him that he was struck by a motor vehicle in a hit and run incident. He stated that at the time he had a significant amount of money in his wallet which was taken from his possession and not returned."

The Respondent's Evidence at Trial

48 The Respondent gave evidence over what appears, from the number of transcript pages it occupies, to have taken most of a day. While his evidence concerning liability was brief, his case on damages had a measure of complication, and he was cross-examined concerning his evidence relating both to liability and quantum. Even though quantum is not in issue on this appeal, his evidence concerning quantum would inevitably have contributed to the overall impression that the judge formed concerning him.

49 The Respondent's evidence in chief was that as he was riding he heard a whistling noise behind him:

"Q. So you heard a whistling noise and then what?

A. And then it, it - he braked and hit me, knocked me off the road.

Q. When you say, 'he braked', was there very much time between your hearing the braking noise and you being hit?

A. It was simultaneous sort of thing.

Q. When you say he hit you, first of all, how hard did he hit you?

A. It - I'm trying to remember - it wasn't really hard but it was enough to knock me off balance and off the road.

Q. When you say he hit you, where did he hit you?

A. Well he hit me on the side and the rear - that's what it felt like. It felt like it he hit me in the thigh, the side of my leg and the back of the bike - that's how it felt."

50 In cross-examination he reiterated that " as soon as he braked, that was when he hit me " .

"Q. Where was it that you felt you were struck?

A. It felt like it hit me on the side of the thigh, down the back of the bike simultaneously, that's how it felt.

Q. When you say the back of the bike, do you mean the seat of the bike?

A. I mean the wheel.

Q. The wheel?

A. Mm.

Q. So your sense was that the car struck your hip area on your right side as well as striking the wheel of the bike itself?

A. That's what it felt like."

51 Even though in his oral evidence the Respondent was sure that he had been hit by a car, and indeed said he had always been sure that he had been hit by a car, he was unable to provide an explanation for why he had signed a statement for the police that included the words " I don't no [sic] wether [sic] it hit me" ([42] above).

52 The Respondent's cross-examination included:

"Q. There was no damage to your bike was there?

A. There's a slight wobble in the back wheel but they thought it was insignificant.

Q. Well there was no impact damage was there to your bike--

A. There was.

Q. --no buckling of the wheel?

A. There was a bit of a wobble in the back wheel I had to get fixed up.

Q. Well when do you say you found a wobble in the wheel?

A. When?

Q. Mm?

A. As soon as I got home and Julia checked it out, so I can't remember.

Q. Did you tell the police about that?

A. Yeah."

The "Julia" there referred to is Julia Seddon, the then partner of the Respondent. The Respondent also gave evidence:

"Q. Did you tell your father that you - that there was this damage to the bike, there was some wobble in the bike?

A. I think he, Jules rode it and showed him."

53 He later retreated from the final answer I have quoted in the longer passage of evidence just set out:

"Q. Mr Rooskov I suggest that at no time did you ever go to the police and tell them that in fact there was any damage to your bike?

A. Mate I can't tell you."

54 There had been no mention of the wobble in the back wheel in the Respondent's evidence in chief. Even though the Respondent's father and wife gave evidence after the Respondent had given his evidence, neither of them was asked about the wobble in the back wheel. Sergeant Castles also gave evidence after the Respondent. It was not put to him that there was in fact a wobble in the back wheel, nor was there any enquiry about whether his examination of the bicycle had included tests, such as actually riding the bike, that might reveal the presence of a wobble that was not apparent on a static inspection.

The Site of the Accident

55 On the day of the accident the weather was fine, and the road surface dry. The road at the place where the Respondent came off his bike is straight. It has a downward slope, in the direction in which the Respondent was travelling.

56 The Respondent's father, Mr Charles Rooskov, is a retired policeman. He lives in Queensland, and travelled to the Helensburgh area after hearing of the accident. The first time he was at the scene of the accident was on 20 May 2005. On that day he made some measurements of the site of the accident. He made further measurements on 26 May 2005. His observations were that the roadway at the site had one northbound lane and one southbound lane, each 3 m wide. A continuous white painted line, referred to in the evidence as a fog line, marked the left hand side of the southbound lane. A shoulder 250 mm wide lay further to the left of the fog line. At the left-hand edge of the shoulder the land rose at an angle of 45 degrees, to a grass strip that lay 150 mm above the level of the shoulder. Moving leftwards from the southbound lane, that grass strip was 4 m wide. There then occurred a ditch, in which a depression in the grass marked the spot where the Respondent had landed.

57 In the southbound lane was a pair of motor vehicle skid marks. They was no evidence of there being any other skid marks in the vicinity. Those skid marks were angled slightly towards the northbound lane. The right hand skid mark crossed the marked centre line along the length of that skid mark, so that its southern-most part lay just inside the northbound lane. The left hand skid mark was 20 m long, and started 10 m to the north of the southern-most part of the depression in the grass in which the Respondent was found. He made a sketch plan that incorporated the results of his measurements:

 

58 Mr Charles Rooskov's evidence was that when he first saw the skid marks "they were very, very black, sharp, well defined and black I would say." When he returned to the site a week later, on 26 May 2005 his observation of the skid marks was: "A slight difference but faded over those [sic] week, those skid marks slightly faded over - not faded but traffic worn I would say" .

59 That evidence was not challenged in cross-examination. Mr Charles Rooskov did not have any particular experience in investigating serious accidents. For that reason, the judge did not permit him to express an opinion about whether the skid marks he saw were fresh. That ruling of the judge is not challenged on this appeal.

Sergeant Castles' Oral Evidence

60 Sergeant Castles had joined the police force in 1992, and since 1999 had worked for the Crash Investigation Unit that covered an area from Helensburgh in the north to the Victorian border in the south. He had undergone a police certificate course in crash investigation, and an American course based in Florida involving at-scene traffic and homicide crash investigation.

61 He attended the site at about 6:40 pm on the day of the accident, after receiving information from a local police officer that a cyclist had been struck by an unknown vehicle. He closed the road, set up lights, examined the scene, and took photographs. In particular, he took numerous photographs of the bike. His explanation for so doing was:

"... there was a, a lack of visual evidence to the bike of any damage or any scuffing or any hint of it being or coming into contact with another object - was puzzling, so I, I made it, made sure there was quite a number of photos taken of the bicycle to depict that the fact that in every area of the bike, that there was no damage."

62 When asked to assume the correctness of the account that the Respondent gave of the accident (of hearing a braking noise, and being hit on the thigh) he expressed the opinion that he would expect there to be some damage to the pushbike, "at least on a minimum a scrubbing of the rear tyre where it may have come into contact" , and "some buckling of the rear wheel and some damage to the pedal which was on the side of the collision" . He also noted that there was no damage to the frame, no damage to the seat, and the chain was still on its cogs. He said that, "in my past experience usually the seat has some type of damage to it." He said that it was "just another quirk of collisions involving bikes, the chain comes off" .

63 As Sergeant Castles' COPS report of 18 May 2005 recorded ([21] above penultimate paragraph), on the evening of the accident Sergeant Castles told the Respondent that his bike had no damage, and he did not reply. Sergeant Castles elaborated on that in oral evidence:

"... I just put it to Mr -- well your bike has got no damage, what can you -- what can you tell me about the fact that your bike has got no damage. Obviously, as I said, given the fact that -- it's alleged that he's been hit by a car. My own experience, I would expect some damage to the said bike, [that's] been put to him, and there was no reply. It was more to solicit a response to say well this is why, this is what happened."

64 In cross-examination Sergeant Castles said that in giving his evidence about the damage he would have expected to find to the bike he had not taken into account the possibility of a light impact between a vehicle and a rider, such as might occur if a car's sprung side or wing mirror had come in contact with the Respondent. He said he did not consider that possibility because normally one would find some debris. When asked whether it was possible for there to be a light impact on a cyclist, and for the bike to go "into the bush" still upright but at a slight deflection he declined to express an opinion - "I'm not an expert in that field sir and I couldn't really say to you is that possible, no, is it possible, yes" .

65 Sergeant Castles said that he examined the skid marks. He noted that the particular surface of roadway that was involved was "coarse gravel" . Mr Rewell accepted in argument that that meant that it was a bitumen road with gravel protruding from its surface. Sergeant Castles said that for a fresh set of skid marks on such a surface:

"You would expect to have some flaking of the tyre, particularly you know the length of the tyre marks and the darkness of the marks. You can get some rubber residue left over, I saw none of that."

66 In cross-examination, Sergeant Castles accepted that there was no reference in his contemporaneous notes to the freshness of the skid marks, or any flaking. He did not accept that those were matters he regarded as unimportant at the time. However, he said that he documented "every piece of physical evidence that would have appeared to be relevant at that stage" . The cross-examination continued:

"Q: Thank you and so the flaking or lack of flaking did not appear to be relevant at that point in time?

A: No because it was only an indication to me."

67 He noted that the skid marks were "completely parallel or opposite to the location of the bike" and said that he found that odd. The place where the Respondent had come to rest was identifiable from a flattened area of grass, that still had the bike nearby. His evidence in chief was that the relative position of the skid marks and the bike was odd because:

"You would expect or you would make an opinion that the tyre marks would come either before or well after. Before as in realise there's someone in front of me, brake hit or hit, realise you've hit someone then brake, not braking whilst you're hitting them and then the person coming to rest completely and utterly opposite to the set of skid marks."

68 However, Sergeant Castles accepted in cross-examination that if the Respondent's evidence that he had heard the sound of braking simultaneously or nearly simultaneously with the impact was correct, then it would be possible for the skid marks to be in the position in which they were actually found.

69 Sergeant Castles gave evidence in chief that he recorded the track width of the tyre marks, "which is like a fingerprint of a vehicle" . Early in his cross-examination he said he "made some enquiries of the track width and it didn't match the make of the car." However, later in the cross-examination he accepted that Holden Commodores had been in production since about 1979, that there had been many different models over the years, that there had been a lot of standard tyres, and a lot of tyres that other people had fitted on all sorts of sized rims. He accepted that just looking at the tread of a tyre would not enable one to tell whether a vehicle was a Commodore. His cross-examination continued:

"Q: And different Commodores have different track widths?

A: That's something for a person above my expertise to give that opinion as."

70 Sergeant Castles observed another oddity with the skid marks - "... normally you would see some type of deviation of the tyre mark, there was none of that on this, it was a straight line set of skid marks. Most times I've seen where you had a collision during braking you would see a deviation" of the vehicle, as a result of the driver turning the steering wheel, or the impact itself causing a deviation of the vehicle.

71 However, in cross-examination he accepted that the fact that the skid marks veered to the west was consistent with somebody trying to avoid an impact with a cyclist.

72 In a re-examination he expressed the view that the skid marks showed that the vehicle that had made them came to a stop, and had been travelling somewhere between 65 km and 75 km an hour. He expressed the view that the direction of the skid marks was attributable to the camber of the road.

73 In some further cross-examination Sergeant Castles expressed the view that even on a slight impact to the thigh there would be damage to the bike. His reason for that conclusion was:

"Because the bike will have to come into contact with some thing. Be it the ground, be it the car, be it something other. The bike would have to come into contact with something."

74 When the problem of the bike having been found in a ditch with no apparent damage to it was put to him, the evidence continued:

"A. The physical evidence didn't bear out the fact that the bike has come down or collided with the ground to indicate some scrubbing mark on the tyre, scratch marks or any indication on the left hand side of the bike that it's fallen heavily to the ground which you would expect from a collision but now I'm being asked a slight brushing.

Q. Yes?

A. I find it - again I'll stick - the fact - I would assume there would be some damage to the bike.

Q. So at every occasion when you've referred in your evidence to matters of your opinion you've assumed a collision that does not fit within the description of a slight brushing is that correct?

A. No, no. I do not - because given the information that was supplied to me at the time of the collision was no where near a slight brushing action.

Q. Sorry so somebody gave you information at the scene as to how hard the plaintiff was hit did they?

A. The information I was given sir--

Q. That is - yes sorry. Could you just answer that question?

A. --was that he had been struck by a vehicle and that the plaintiff had come and which has caused injuries.

Q. Sir at the scene of the accident were you given any information as to how hard the plaintiff was hit? Yes or no?

A. No that would - no I was not."

Speed

75 The Respondent accepted that he did not apply his brakes as he went down the downhill gradient.

76 His evidence about the speed at which he was travelling was:

"Q. What speed do you say you were travelling at?

A. Don't know, 30 ks.

Q. On a pushbike, not applying brakes?

A. Yeah. It's just a straight bit of road mate, there's no reason to apply brakes.

Q. Sorry?

A. There wouldn't be any reason for me to apply brakes.

Q. Well you were gathering speed weren't you?

A. (No verbal reply)

Q. Correct?

A. Yeah.

Q. And it could be that in fact you were travelling as fast as 40 kilometres an hour, couldn't it?

A. Yeah, yeah it's possible it is.

Q. And continuing to gather speed, correct?

A. Yeah.

Q. You made no attempt to slow yourself down at all?

A. No."

77 Mr Griffiths obtained a bicycle similar to the one the Respondent had been riding, and rode over the stretch of road the Respondent had traversed. His findings were:

- without any pedalling, the gradient of the hill caused the bike to accelerate up to a speed of 40 km/hr

- with some light pedalling in combination with the gradient, the bike achieved a speed of 45 km/hr and maintained that speed after pedalling ceased

- with a further period of moderate pedalling, where the pedalling was sustained, the bike achieved a speed of 53 km/hr. To maintain this speed moderate pedalling had to be continued."

Effect of Alcohol

78 Dr Graham Starmer, a pharmacologist, gave an expert evidence report. His evidence was that once a person has stopped drinking alcohol for 20-30 minutes "the body disposes of alcohol at a rate which is remarkably constant and varies only slightly from individual to individual." He accepted it was likely that by the time of the accident the Respondent was in the elimination phase of his blood alcohol concentration curve. The Respondent's measured blood alcohol concentration of 0.180 g/100 ml, obtained by analysis of a blood sample taken at 5:35 pm on the day of the accident, would result in his having had different concentrations of alcohol at the time of the accident, depending on the precise time at which it occurred. Dr Starmer calculated the concentration at the time of the accident as being:

" ● 0.221 g / 100 ml (range: 0.201 - 0.232 g / 100 ml) if the accident occurred at 3.30 pm

or

● 0.196 g / 100 ml (range: 0.191 - 0.207 g / 100 ml) if the accident occurred at 4.30 pm."

79 The sample taken at 5:35 pm had been analysed by the Division of Anal ytical Laboratories at Lidcombe. Another blood sample was taken from the Respondent at 5:42 pm at Wollongong Hospital and analysed by an organisation called Illawarra Pathology. It showed a concentration of alcohol of 0.22 g / 100 ml. Dr Starmer did not rely on that result, because of the likelihood that it had been analysed using a different analytical technique to that of the Division of Analytical Laboratories.

80 Dr Starmer reported:

"Alcohol exerts its major effects on the structures of the brain which are responsible for balance (important in riding a bicycle) and co-ordination. Alcohol reduces peripheral awareness as well as impairing speed and distance judgements. The ability to successfully divide attention between two or more inputs is significantly degraded at blood alcohol concentrations as low as 0.05 g / 100 ml and impairment increases exponentially with rising blood alcohol concentration (Starmer, 1990)."

81 He gave the results of various overseas studies showing that an inebriated cyclist was considerably more likely to be injured than a sober cyclist. He reported on one study that showed that the injury risk estimate of an inebriated cyclist was at least tenfold at blood alcohol contents above 0.1 compared to a sober cyclist. However, that study also reported that alcohol increased the cyclist's risk of injury from falling more than from collision. He concluded that, "it would be very difficult to exclude the effects of alcohol on Mr Rooskov's ability to ride a bicycle as being a major causal factor in the collision."

82 The Respondent accepted in cross-examination that his ability to ride a pushbike would have been affected by the amount of alcohol he had had. He said he " felt fuzzy " , but also said that he " felt fully in control" .

The Judge's Decision

83 The judge summarised the plaintiff's evidence as being that he

"... was cycling south in Walker Street when he observed a van coming in the opposite direction. He then became aware of a car travelling behind him that hit him, knocking him off the road. The plaintiff described it as being simultaneously from hearing a braking noise and being hit on the side and rear of the thighs, side of the leg and back of the bike. As a result of that impact the plaintiff and bike went off the road and with him being projected into long grass with his bike not far from him."

84 The judge found that:

"... because of the high blood alcohol reading and Professor Starmer's evidence, that he was at the time of the accident well affected by alcohol."

85 The judge summarised the cross-examination of the Respondent. In it, the Respondent:

"... reiterated that there was a whistling noise of the car as he heard braking, like a car skidding, and he and his bike were hit from behind at the same time. He again described being hit on the side of the thigh and the wheel. The plaintiff has no memory of speaking to social workers on 25 May at hospital and little memory of that which he has told a reporter from the Helensburgh and District News. However, notwithstanding a very thorough cross-examination, the plaintiff maintained that he was never in doubt that a car was involved in this accident."

86 After reviewing the evidence about the skid marks, the judge said:

"The difficulty I have with the skid marks is that they were consistent in location and presence and time with the sworn evidence of the plaintiff and consistent with versions he had given at various times and the contemporaneous ones given, although poorly recorded, sometimes by second or third hand, when being introduced into the police documentation."

87 So far as the evidence of the Respondent was concerned, the judge found that he was a witness attempting to be honest, and noted:

"... one only has to look at his attempts at accurately recounting that which he was trying to tell different persons at different times as to the fact of the accident, indicates that honesty."

88 The judge accepted that it was important to take into account the contemporaneous records. Concerning them, he said:

"Although recorded in second or third or perhaps even fourth hand, the plaintiff has complained to lay people who have attended the accident scene, police officers who have attended the accident scene and an ambulance officer at the accident scene of being struck by a motor vehicle. He has, within a short period of time, given versions of uncertainty in the hospital as to being struck by a motor vehicle.

The contemporaneity of the initial complaint, in my view, is important in determining the accuracy of the plaintiff's evidence."

89 The judge's ultimate conclusions were:

"I, in this matter, am persuaded by the contemporaneity of the plaintiff's complaints of being struck by a vehicle. The skid marks were dismissed by Sergeant Castles however I am of the view they are entirely relevant because they are consistent with the contemporaneous complaint that the plaintiff made. Mr Griffiths does not seek to deal with the skid marks apart from accepting Sergeant Castles' view as to they having played no part. I reject Sergeant Castles' view and I reject Mr Griffiths' opinion in that respect and I reject those views because of their inconsistency with the plaintiff's' contemporaneous versions and of some vehicle, at or about the time of the plaintiff's accident, in the place where the plaintiff says he was struck, braking reasonably heavily and swerving in part to the wrong side of the road, all perfectly consistent with the plaintiff's case and consistent, as I have said, with the matters which he has reported to the passers by, the police officers and ambulance officer and some hospital staff in the early stages consistent with Dr Day's opinion."

90 The judge recognised that over time the pattern of accounts that the Respondent had given of the cause of his injuries went from initial assertion that a car was involved, through doubt about whether a car had been involved, then back to an account of causation by a car. The judge said:

"I formed the view of the plaintiff that his contemporaneous report is correct. That, within a short period of time, with his vagueness, with no doubt the police sergeant reporting to him that there was no damage to his vehicle having been confirmed several days later and no evidence forthcoming to support his initial complaint of being struck, and withdrawing from alcohol and he being an honest reporter, was expressing a view of some doubts in relation to his initial recollection.

I am of the view it is no greater than that and that which occurred for the reasons that I have expressed is that the plaintiff, in cycling down that roadway, was struck from behind in some way, whether the bike itself was hit, or whether it was just him, whether it was a glancing blow in a manner that little damage was caused, to cause him to lose control of the vehicle and be propelled off the roadway suffering the significant back injuries he suffered either in the contact between him and the car or upon him hitting the ground and that that was caused by the negligence of the driver of the unidentified vehicle. I am satisfied the plaintiff has made out a case in negligence."

Appellate Review Principles

91 While they are not a matter of controversy in the present case, it is appropriate to remind myself of the circumstances in which an appellate court can, or should, alter a decision of a trial judge. An appellate court is entitled, and required, to alter a finding of a trial judge if "... making proper allowance for the advantages of the trial judge, they conclude that an error has been shown ..." : Fox v Percy (2003) 214 CLR 118 at 127-128 [27]. Whether a trial judge has an advantage over an appellate court, and if so the nature of any such advantage, varies with the particular subject matter that the trial judge has decided - see generally the discussion in Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240 at [140]-[154] (a passage not reproduced in the report of the case at (2009) 75 NSWLR 74). In deciding whether error has been shown, it must also be recognised that there are sometimes occasions in which the appellate court has an advantage not enjoyed by the trial judge: Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; (2009) 53 MVR 187 at [3] per Allsop P; Seiwa Australia at [2] per Allsop P; Morley v ASIC [2010] NSWCA 331; (2010) 274 ALR 205 at [257] per Spigelman CJ, Beazley and Giles JJA. The advantages of a trial judge are by no means limited to topics where the judge's impression of a witness affects the outcome. However, appealing against a finding which is influenced by the trial judge's impression of a witness ("the subtle influence of demeanour" ) is particularly difficult. If the judge has used, and there is no basis for saying that he or she has "palpably misused" the advantage he or she has from seeing the witnesses, the appeal court will not intervene: Abalos v Australian Postal Commission (1990) 171 CLR 167, at 178-179; Trawl Industries of Australia Pty Limited v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 347-354A (and especially 353F-354A) per Samuels JA; Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 at 5E-G per Clarke JA (with whom Handley and Meagher JJA agreed at 17); Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349. The Court of Appeal is unable to overturn such a finding even if the Court were to think that the probabilities were strongly against the finding: Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 especially at 321 [63]; Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1 at 65-66 [309]-[312].

92 The joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy made clear the obligation of an appellate court conducting an appeal by way of rehearing (as the present appeal is) to "conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons" (at 126-7 [25]), and "give the judgment which in its opinion ought to have been given in the first instance" (at 125 [23]). However there are "natural limitations" on an appellate court that proceeds wholly or substantially on the record (125 [23]), and the appellate court's obligation to review can only be carried out within those natural limitations (126-7 [25]). At 128 [28] their Honours stated that in some cases "incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings". Their Honours also acknowledged, at 128 [29], that "In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case" , and be justified by those matters in reversing a trial judge's conclusion on a matter of fact. The inevitable advantage of a trial judge over an appellate court is one of the "natural limitations" on the ability of an appeal court to be satisfied that the trial judge has erred. In the sort of situations identified by their Honours at 128 [28] and [29] an appellate court can be satisfied that the trial judge has erred in making a factual finding that was affected by demeanour.

The Appellant's Attacks on the Finding of Liability

Wobble in the Back Wheel?

93 One error on which the Appellant relies is that the judge said at page 4 of his reasons that "both the plaintiff's father and Ms Seddon gave some evidence of there being a wobble to the back wheel of the bike." In fact neither Mr Charles Rooskov nor Ms Seddon gave any such evidence.

94 Even though this was an error on the part of the judge, I am not persuaded that it was a material error. At no later stage in his reasoning did he place reliance on, or indeed refer in any way to, there being a wobble in the back wheel of the bike.

95 The judge later dealt with the evidence about whether there was damage to the bike as follows:

"The evidence of Sergeant Castles failing to observe damage to the bike is, in my view, evidence which is of some moment however not the sole evidence which the Court must decide to rely upon in determining the events of this afternoon. It must be understood, and this was never put to the sergeant, that the plaintiff was probably cycling at a speed of between thirty to forty kilometres per hour and the vehicle, should it have existed, that made the skid mark, was probably travelling between fifty-five to seventy kilometres an hour, although again this is all problematical. The estimate of speed on the length of skid mark as proffered by Sergeant Castles while it is of some help, is not conclusive. The same view I take in relation to Sergeant Castles' opinion as to there being no damage to the bike."

96 That involves, it seems to me, an acceptance of Sergeant Castles' evidence. Evidence could hardly be "of some moment" if the judge did not accept it and propose to give it weight. What the passage quoted is concerned with is what conclusion can be drawn from Sergeant Castles' evidence of lack of damage to the bike. The passage shows the judge treating the evidence of Sergeant Castles about there being no damage to the bike, as a matter to be taken into account in the weighing process, but not necessarily conclusive of whether the accident had been caused by an unidentified vehicle. It was not necessarily conclusive because the Sergeant had not formed his view on a scenario involving an unknown vehicle coming into contact with the Respondent when the vehicle was travelling somewhere between 15 and 40 kph faster than the Respondent. Nor had he formed his view on a scenario involving the side or wing mirror of a car coming into contact with the Respondent.

97 The judge did not say whether he placed any reliance on the newspaper report ([36] above) that stated that the bike had "only minor damage" . A judge deciding a factual question is not obliged to articulate every minor matter that enters into his decision. Even so, when this Court is examining the correctness of the judge's decision, it could not safely proceed on the basis that the judge had taken into account evidence of a factual matter that he did not mention.

98 Mr Rewell submitted that the judge should have drawn an inference that, had Mr Charles Rooskov and Ms Seddon been asked in chief about the wobble in the back wheel, their evidence would not have assisted the Respondent: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at 384 [63]. The principle in Ferrcom , in the limited form approved in Kuhl , is like the principle in Jones v Dunkel (1959) 101 CLR 298 in that it licenses a trial judge to drawn an inference if the judge thinks appropriate, but does not require that the inference be drawn. More importantly, however, when the judge did not conclude that there was a wobble in the back wheel, and indeed proceeded on the basis that he accepted Sergeant Castles' evidence concerning damage to the bike, this submission does not provide a basis for doubting the correctness of the judge's conclusion concerning liability.

Mis-stating Sergeant Castles' Evidence Regarding Skid Marks?

99 At page 5 of his judgment, after a page of recounting the evidence of Sergeant Castles, the judge continued:

"As to the skid marks, the sergeant described the width of the roadway as being 6.4 metres. His sketch plan had five squares of approximate equal width and size although they were not to scale, however it would appear that the skid mark commenced about 1.6 metres in from the eastern kerb, that is the kerb to which the plaintiff and his bike had gone over, and that the skid marks commenced in the southbound lane, that is the same lane as the plaintiff had been riding his bike. The skid marks have moved to their incorrect side of the road for a south bound vehicle and would have been consistent with somebody trying to avoid impact with a cyclist and striking the cyclist in that manoeuvre."

100 Mr Rewell submits that the final sentence of this paragraph misstates the evidence of Sergeant Castles. Sergeant Castles had accepted that the skid marks moving to the incorrect side of the road would have been consistent with somebody trying to avoid impact with a cyclist, but said nothing that justified the addition of "and striking the cyclist in that manoeuvre" . Indeed, Mr Rewell submits that the thrust of Sergeant Castles' evidence is inconsistent with there being, in Sergeant Castles' view, any striking of the cyclist at all.

101 I do not find this criticism of the judgment persuasive. It seems to me that in including the words "and striking the cyclist in that manoeuvre" the judge is not purporting to state the evidence of Sergeant Castles, but rather to state his own conclusion. Even though a lengthy recounting of the evidence of Sergeant Castles had preceded the passage in question, the judgment then goes on to deal with matters other than the evidence of that witness.

No Deviation in Skid Marks

102 Mr Rewell also relied on Sergeant Castles evidence that "Most times I've seen where you had a collision during braking you would see a deviation" in the skid marks left by the vehicle, as a result of the driver turning the steering wheel, or the impact itself causing a deviation of the vehicle ([70] above). Mr Rewell submitted that the fact that the skid marks in question here were straight indicated that there had been no collision.

103 I do not accept that Sergeant Castles' evidence about a collision usually causing a deviation in skid marks was directed to the topic of a collision between a motor vehicle and a cyclist that "wasn't really hard but it was enough to knock me off balance" . Sergeant Castles accepted that he had not considered a light impact ([64] above).

Inadequate Explanation of Respondent's Doubts About Involvement of Car?

104 Mr Rewell criticises the judge's explanation of withdrawal from alcohol as the reason why nursing notes recorded the Respondent as expressing doubts about whether a car was involved ([90] above). The only mention in the evidence of withdrawal from alcohol is in some admission notes made at Coledale Hospital on 25 May 2005. Those notes include:

"? Previous heavy intake of alcohol. Lives in relatively isolated location."

...

"3. Considerable pain control issues - using high doses of opioid analgesics as well as high doses of benzodiazepines  may be relatively resistant from previous alcohol intake

4. ? Some of his symptoms may be in part secondary to alcohol withdrawal"

Mr Rewell submits that this is an isolated reference, and clearly tentative.

105 I do not accept that withdrawal from alcohol was the only reason the judge gave for accepting that the contemporaneous report of the Respondent about the cause of the accident was correct. The passage from the judgment quoted at [90] contains numerous reasons for the Respondent expressing uncertainty, while in hospital, about whether a car had been involved in his accident. One of them was "his vagueness" . The medical record shows that the time when the Respondent began expressing doubts commenced when he was being medicated with opioids, and suffering post-traumatic amnesia. In my view, the tentativeness of the evidence concerning the Respondent being in a state of withdrawal from alcohol does not provide a sufficient reason for concluding that the judge's ultimate decision on liability was wrong.

Wrong Failure to Accept Sergeant Castles' Opinion about Freshness of Skid Marks?

106 Mr Rewell criticises the judge for failing to accept Sergeant Castles' evidence concerning the lack of freshness of the skid marks. Mr Rewell reminds us that there was no expert evidence worth speaking about concerning the freshness of the skid marks that was to the opposite effect of the opinion of Sergeant Castles.

107 A Dr Short, who wrote a report that was tendered for the Respondent, said in it that he "would question the basis for" the police opinion that the skid marks were unrelated. He said: "The skid marks could possibly be indicative of some pre or post-collision braking by a vehicle." However Dr Short gave no explanation for why he expressed this view, or for how that view was based on any specialised knowledge that he had that was based on his training study or experience (cf s 79 Evidence Act 1995 ). The judge did not find the opinion of Dr Short helpful, and Mr Watson did not suggest on the appeal that we should rely upon it. Mr Watson was right in adopting that approach. An opinion expressed by an expert is capable of persuading only to the extent that the court is put in a position to evaluate the strength, or lack of strength, of the reasoning process that has led to the expert to express the opinion, or the strength of the relationship between the opinion that has been expressed and the course of experience on which it is based.

108 However, even if the evidence in a case contains only one opinion expressed by an expert on a particular topic, it can still be open to a judge not to accept that opinion. Rather, the opinion of the expert, and in particular the strength of the reasoning process by which it is derived or the relationship between the opinion and the course of experience on which is based, must be evaluated along with other evidence in the case.

109 In the present case it was open to the judge to regard Sergeant Castles' opinion on the lack of freshness of the skid marks as outweighed by other evidence. The sole basis that Sergeant Castles gave for his opinion that the skid marks were not fresh was the absence of rubber residue or flaking on the road. He did not give evidence to the effect that fresh skid marks, on a road whose surface was similar to that of the road in question, always, or usually, left such flaking. His evidence was more cautious - "You would expect to have some flaking of the tyre, particularly you know the length of the tyre marks and the darkness of the marks. You can get some rubber residue left over." (emphasis added). It is obvious that whether the skid marks were fresh was quite important in determining whether a vehicle had been involved in the Respondent's accident. The failure of Sergeant Castles to contemporaneously record the absence of flaking, in a situation where he acknowledged that he documented every piece of physical evidence that appeared relevant, is in itself an indication of the un-compelling nature of the absence of flaking as an indication of the skid marks not being fresh. He explained his failure to document the flaking as being "because it was only an indication to me" (emphasis added).

110 In evaluating the evidence of Sergeant Castles the judge would have been entitled to take into account that the Sergeant had given various reasons for the skid marks not being involved in the accident, from which he retreated under cross-examination, or concerning which he disclaimed expertise - see [64], [67]-[69] and [71] above.

111 The other evidence that the judge was required to weigh against the opinion of Sergeant Castles included the evidence about the proximity of the skid marks to the place where the Respondent went off the road, and the evidence about how their direction was consistent with the account of the accident that the Respondent gave. It included the description that Mr Charles Rooskov gave of the skid marks at the time he first observed them, and how their appearance changed in the course of a week, which is consistent with (though, of course, of itself not demonstrative of) the marks being comparatively fresh at the time of the accident. It included Dr Day's opinion. Most importantly, it included the oral evidence of the Respondent himself, and the contemporaneous evidence of what the Respondent had said to at least three ambulance officers and one police officer immediately after he was found. All that needed to be balanced against the various statements recorded in nursing notes and in some medical histories about the Respondent being uncertain whether a car had been involved in the accident.

112 I am in some doubt about whether I would have come to the same conclusion as the trial judge about liability if I had been the first instance judge. However, taking into account the advantages that the trial judge had, I am not positively persuaded that the conclusion he reached was wrong.

Contributory Negligence

113 I should say at the outset of considering the argument concerning contributory negligence that the Appellant dealt with contributory negligence, in both the written submissions and the oral submissions, in the briefest fashion. Mr Rewell said in oral submissions that contributory negligence was "a very minor part of this appeal" . However, submissions were made concerning it, and so they must be dealt with.

114 Once it is accepted that the Respondent's accident was caused by an unidentified motor vehicle, it is a "motor accident" within the meaning of s 3 Motor Accidents Compensation Act 1999 (" MAC Act "). Section 138(1) MAC Act provides:

"The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section."

115 The only difference to the common law and enacted law that is applicable in the present case arises under s 138(2)(d) MAC Act :

"(2) A finding of contributory negligence must be made in the following cases:

...

(d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so."

116 Sections 138(3) and (4) MAC Act provide:

"(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(4) The court must state its reasons for determining the particular percentage."

117 The principles in accordance with which a plaintiff's damages are reduced by reason of the plaintiff's contributory negligence, under the relevant enacted law as to contributory negligence (the Law Reform (Miscellaneous Provisions) Act 1965 )) were stated by five members of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."

118 These principles were reiterated by Hayne J (with whom Gaudron, McHugh, Gummow and Kirby JJ agreed) in Wynbergen v Hoyts Corporation Pty Ltd [1995] HCA 52; (1997) 72 ALJR 65 at 68.

The Judge's Decision on Contributory Negligence

119 In the present case the Respondent was not wearing a helmet at the time of the accident, as he was required to do, and hence it was essential for a finding of contributory negligence to be made. However, the judge found (and it is not challenged):

"... any damage that flows from not wearing a helmet, is miniscule as I will refer to later when I deal with the question of the head injury and did not attract a finding by the MAS assessor of anywhere near a matter that would attract general damages on its own. The economic loss is principally attributed to the back injury, the need for care is attributed to the back injury, so there is little damage that flows from the failure to wear a helmet."

120 The type of carelessness for a plaintiff's own interests that is involved in contributory negligence is carelessness concerning the type of risk that in fact was a cause of the particular damage that the plaintiff has sustained. If a plaintiff has been careless concerning some matter, such as his or her economic interests, but that carelessness has not actually caused him or her damage, it is irrelevant to any assessment of contributory negligence: Monie v Commonwealth of Australia [2007] NSWCA 230 at [99]. Thus, even though s 138(2)(d) required that a finding of contributory negligence be made, the judge's view was that the evidence was not such as to require the damages to be reduced significantly by reason of the failure to wear a helmet. It was by reason of the Respondent's failure to wear a helmet that the judge reduced to damages by 5%.

121 The judge continued at 14-15 of his judgment:

"As to the significant degree of intoxication, if there is any evidence to indicate the plaintiff should have been aware of the approach of the vehicle earlier than what he was, or could have responded in any other way than being forced from the roadway by the contact with the motor vehicle, then there would be a very strong case for a substantial finding of contributory negligence against the plaintiff. The difficulty for the defendant in this area is that the defendant has the onus of proving contributory negligence and that that contributory negligence is causative of the plaintiff's injuries. There is no evidence on the facts of the case as I find it, that would support the defendant's contention. The only matter being the question of failing to wear a helmet and I am of the view that the plaintiff's damages should be reduced by five per cent because of the limited affect that has on the damages and that I propose to do.

Principles for Appellate Review of Apportionment Decisions

122 Concerning the principles for appellate review of first instance decisions on the amount of apportionment there should be for contributory negligence, I venture to reiterate the principles I collected (with the agreement of Beazley JA and Pearlman AJA) in Manly Council v Byrne [2004] NSWCA 123 at [103]-[105]:

"103 In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ said:

'A finding on a question of apportionment is a finding upon a 'question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v MacGregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.'

In Phillis and Another v Daly (1988) 15 NSWLR 65 at 78 McHugh JA said:

'Determining the apportionment of responsibility for damage is a task upon which minds notoriously differ. Appellate courts are reluctant to interfere with an an assessment of responsibility unless the judge or jury has acted upon a wrong principle or the apportionment is manifestly erroneous.'

See also at 75 per Mahoney JA.

104 In Australian Breeders Co-operative Society Ltd v Jones and Others (1997) 150 ALR 488 at 546-7 Wilcox and Lindgren JJ say:

'The law reports contain many warnings about appellate courts interfering with determinations of trial judges regarding apportionment of culpability. Perhaps the leading statement on the subject is that of Lord Wright in British Fame (Owners) v MacGregor (Owners) [1943] AC 197, a case concerning relative culpability for a collision at sea. At 201 his Lordship said:

"... it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge's apportionment. The accepted rule was clearly stated by Lord Buckmaster, with the assent of the other Lords, in Kitano Maru (Owners) v Otranto (Owners) (The "Otranto'') [1931] AC 194 at 204, in these words: 'Upon the question of altering the share of responsibility each has to take, this is primarily a matter for the judge at the trial, and unless there is some error in law or in fact in his judgment it ought not to be disturbed'."

That statement has been adopted in the High Court of Australia: see Pennington v Norris (1956) 96 CLR 10 at 16 and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532. In Macquarie Pathology Services Pty Ltd v Sullivan (CA (NSW), 28 March 1995, unreported) Kirby P observed that "[a]n apportionment will only be set aside and redetermined if the trial judge has either obviously proceeded on a misunderstanding of the evidence or, alternatively, has clearly assessed the evidence incorrectly in evaluating the parties' comparative blameworthiness''. Clarke JA said:

'It is well established that a trial judge is invested with a very wide discretion in making his apportionment and that he must be allowed much latitude in arriving at a judgment as to what is just and equitable. In these circumstances the onus cast on an appellant who seeks to disturb an apportionment is a high one ... Obviously where one party can point to an error of fact or of law on the part of the trial judge it may not be difficult to argue that his or her determination as to what is just and equitable may be flawed.'

105 For more recent reiterations of an appellate court's reticence in altering a trial judge's assessment of proportions of contributory negligence see Tabvena v Oag [2002] NSWCA 61 at [8], Sierra v Anikin [2003] NSWCA 11 at [14], [17], [97], [105]."

123 The Court of Appeal decision in Sierra v Anikin was reversed by the High Court after the decision in Manly Council v Byrne was given ( Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452), but the High Court accepted that a trial judge's decision concerning apportionment for contributory negligence was "not lightly reviewed" : ibid at [50], citing Podrebersek, Liftronic Pty Ltd v Unver (2001) 179 ALR 321 at 322 [2]; 75 ALJR 867 at 868; and Joslyn v Berryman (2003) 214 CLR 552 at 578-9 [84], 601-2 [157].

Wrong Apportionment for Failure to Wear a Helmet?

124 Mr Rewell's first submission concerning contributory negligence is that the head injuries that the Respondents suffered are in themselves sufficient to justify a finding of greater than 5% contributory negligence by reason of failure to wear a helmet. Two arguments are put towards that conclusion. The first is that in the Statement of Particulars the Respondent alleged that he suffered a severe traumatic brain injury resulting in numerous cognitive deficits. I place no weight on that argument - it is what is proved, not what is alleged, that matters for the purpose of assessing contributory negligence.

125 Mr Rewell's written submissions continue:

"Whilst the Primary Judge found that the Respondent's main disabilities resulted from an injury to the thoracic spine, the Primary Judge referred to, and apparently accepted, opinions of Dr O'Neill, a Neurologist [Red 94D] and Mr Cussack, a Psychologist [Red 93D] that the Respondent did suffer a traumatic brain injury, with some consequences. That alone warranted a finding of contributory negligence greater than 5%."

126 In the part of his judgment dealing with quantum the judge quoted the opinion of Dr Spira that the Respondent's main problem was diffuse mid back pain, and continued:

"Doctor opined that,

'Although there had been some improvement in Mr Rooskov's status since he was last seen by him three years before his symptom complex remains active, thoracic fractures are there, to persistent back discomfort with which he is dealing to the best of his ability. There is a further issue of the possibility of traumatic brain injury, although there is no evidence of such in initial CT scans it is clear that Mr Rooskov lost consciousness for an uncertain period at the scene of the accident, had a significant post traumatic amnesia, although the estimation of its duration is rendered difficult by repeat interruptions to the testing. According to the information Mr Rooskov's hospital records it appears that the official ..(not transcribable).. should be recorded at twelve days making it likely that there was indeed traumatic brain injury present. The memory difficulties with which Mr Rooskov now describes are relatively settled, but almost certainly is sequel to traumatic brain injury. At no stage did I gain the impression that he was in any way embellishing his symptomatology.'

Doctor went on to say that Mr Rooskov was fit for work and currently employed in his pre-accident form of work. Nevertheless, he indicates that this involves less in the way of physical effort than his previous job did, and he is in fact looking for work in a managerial rather than physical capacity once he completes his course. Doctor said he believed that he should be spared physically demanding tasks which involve a great deal of lifting and truck flexion."

127 After referring to the fact that the Respondent had been assessed by various MAS assessors (of whom Dr O'Neil was one), the judge said:

"Dr O'Neil formed a view that the plaintiff did suffer traumatic brain injury caused by the motor vehicle accident, however was of the view that there was a no per cent whole person impairment when he applied the appropriate tables. It is for this reason that I have dealt with the contributory negligence in the manner I have, notwithstanding the views expressed by Dr Spira."

128 Of the damages that the judge awarded, $150,000 was for general damages. The rest were for out-of-pocket expenses, future medicals, past economic loss, loss of earning capacity, loss of superannuation and past and future domestic care.

129 I am not persuaded that, in the light of this state of the evidence, the judge was in error in failing to apportion more than 5% contributory negligence by reason of the Respondent's failure to wear a helmet.

Wrong Apportionment Concerning Intoxication?

130 Mr Rewell submits that the gross intoxication of the Respondent should have led to a finding of contributory negligence considerably greater than 5%. The evidence of Dr Starmer, which was unchallenged, calculated the blood alcohol content of the Respondent at the time of the accident as being very nearly four times the legal limit of 0.05 g / 100 ml for driving a motor vehicle (at the bottom of the range that Dr Starmer calculated) or well over four times that limit (at the top of the range that he calculated). Dr Starmer gave some general evidence (also unchallenged) about the manner in which alcohol impairs a person's facilities ([80] above).

131 After (realistically) recognising the difficulty that the Appellant had in running this argument by reason of there being no evidence from any driver or witness as to what in fact occurred, Mr Rewell's written submissions continued:

"[h]owever, the Appellant submits that the level of intoxication of the Respondent was such, that it is reasonable to infer that the Respondent was unable to make any proper judgment, or to take any appropriate action at all, to avoid a collision. The photographs demonstrate that it was unnecessary for the Respondent to ride within the traffic lane in which he asserts the collision occurred. There was a sealed shoulder, albeit of variable width.

There was no reason why the Respondent should have failed to hear the approach of a motor vehicle from behind, in time to move outside the fog line and away from the traffic lane. Yet it was the Respondent's evidence that he heard only a 'whistling' sound very soon before he heard the sound of brakes, at the same time as the collision occurred. This is consistent with decreased alertness due to alcohol consumption, to which Professor Starmer refers [p 5]."

132 The appeal was conducted as though there was no problem in the court drawing conclusions about the nature of the shoulder from the photographs. The argument included the following exchange:

"REWELL: ... The plaintiff was so grossly intoxicated that he obviously failed to hear the motor vehicle approaching, if there was one and could have heard it at a much earlier stage no doubt had he been less affected and there was opportunity for him to respond by simply moving himself off the traffic lane for a short distance.

CAMPBELL JA: It was a very narrow shoulder.

REWELL: It was and it was affected by grass. The photographs make that clear."

133 If it were legitimate to rely on photographs to reach conclusions of fact rather than as an aid to understanding other evidence concerning facts (cf Blacktown City Council v Hocking [2008] NSWCA 144 at [7]-[13], [167]-[173], [240]) the photographs of the road show that

- there are places (presumably relevant to this case, if they are included in the photographs at all) where the sealed surface of the shoulder of the road has either eroded away or become covered with dirt or gravel; and

- there are places where grass has grown over the shoulder, sometimes covering its entire width.

134 In light of the photographs, I would not conclude that it was practicable for the Respondent to ride in the shoulder of the road.

135 An expert report of Dr Short, that was not the subject of cross-examination, recalled that when he attended the collision site on 1 July 2009 there were:

"... no sealed shoulders, with grass directly adjacent to the road surface. This means that a cyclist on this piece of road has to ride on the road surface together with other traffic."

136 While Dr Short's inspection was over four years after the date of the accident it is, at least, not inconsistent with the impression obtained from the contemporaneous photographs.

137 Even if it were not legitimate to rely on the photographs, it was never put to the Respondent that it was practicable for him to ride in the shoulder of the road rather than in the carriageway. The topic of where the Respondent was riding on the road surface was gone into specifically in cross-examination:

"Q: I take it that when you were riding down on this particular day, you were keeping as far to the left as possible?

A: Mm-hmm

Q: Is that right?

A: I was keeping to the left but not as far as possible, but I was keeping to the left yeah I wasn't -- I didn't want to take up the road, put it that way

Q: Well how far close to the edge of the road as in the line marking, you understand there's a fog line marking?

A: Yeah it would've been within a metre probably

...

Q: Anywhere within a metre, is that what you say?

A: Probably close to a metre, I wouldn't - I wasn't close to the edge but I wasn't close to the centre you know, I was on the left-hand side of the road. The left-hand side of the left-hand lane."

138 That passage of evidence has the Respondent putting himself somewhat closer to the centre of the road than the cross examiner was suggesting he had been, and the practicability of riding in the shoulder was not mentioned.

139 Nor have I found any place where it was submitted to the judge that the practicability of riding in the shoulder of the road was a matter that he should take into account in assessing contributory negligence.

140 The failure to put the possibility of riding in the shoulder to the Respondent or submit it to the judge, has the effect that it would not be appropriate for this court to review the judge's assessment of contributory negligence on that basis. Thus the court cannot accept the Appellant's submission that the Respondent failed to take reasonable care for his own safety because he should have heard the car earlier, and then moved "outside the fog line and away from the traffic lane."

141 I would accept that the Respondent is likely to have had decreased alertness due to his degree of intoxication. I would accept that anyone who rides a bicycle on a public road in the extreme state of intoxication that the Respondent was in is placing himself at serious risk of injury. However, that the Respondent placed himself at serious risk of injury by venturing onto a public road at all that afternoon does not answer the question of whether the Appellant has discharged the onus of showing that the Respondent's intoxication actually caused or contributed to his injuries.

142 Another part of the "enacted law" that s 138(1) MAC Act makes applicable in determining contributory negligence for the purpose of this case is the Civil Liability Act 2002 . Section 5R(1) of that Act provides:

"The principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm."

143 One such principle "applicable in determining whether a person has been negligence" is s 5D Civil Liability Act 2002 :

"(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability )."

144 Thus, the Appellant will succeed in establishing that there was contributory negligence arising from the intoxication of the Respondent only if the Appellant establishes that the intoxication was a necessary condition of the injuries that the Respondent sustained.

145 The Respondent's unchallenged evidence was that he was riding "within a metre" of the fog line, "probably close to a metre" . That is not in itself an unsafe place for a cyclist to ride. There are no unbroken lines in the middle of the road, which would have inhibited a motorist approaching from behind in steering around the Respondent in a way that gave him a wide berth. For the reasons I have already given, it is not open to this court to find that it would have been practicable for the Respondent to ride on the shoulder. In all these circumstances I am not persuaded that the judge was in error, in a way that can be corrected on appeal, in concluding that the Appellant had not made out a case of contributory negligence based on the manner in which the Respondent reacted in the short period of time before the car hit him.

146 After judgment had been reserved in this matter the High Court delivered its decision in Strong v Woolworths Ltd [2012] HCA 5. As Strong turned on the construction and application of the principles for causation in s 5D Civil Liability Act the parties were given the opportunity to make any additional submissions that they wished that arose from the High Court decision. However, neither of them submitted that the High Court decision made any difference to the argument that had been presented.

Orders

147 The orders that I propose are:

1. Appeal dismissed.

2. Appellant to pay the costs of the Respondent of the appeal.

148 YOUNG JA : I agree with Campbell JA.

149 GARLING J : Campbell JA has set out comprehensively in his judgment, all of the relevant evidence at trial, and also, the judgment below. I gratefully adopt what he has written.

150 I agree with Campbell JA that the appeal ought be dismissed, and with the orders which he proposes. I have reached this conclusion by a different route and so prefer to express briefly my reasons.

Conflicting Accounts of the Plaintiff

151 Before giving evidence in Court, the plaintiff gave many conflicting accounts as to how his accident had happened - including saying that he was hit by a car, saying that he fell from his bicycle, saying that he had a poor recall of the incident and also that he may well not have been hit by a car.

152 In his evidence in chief, the plaintiff said that he had been struck by a car. He did not resile from that account in cross-examination.

153 It was a matter for the trial judge to decide whether he accepted the evidence of the plaintiff as to how the accident happened, having regard to the many conflicting statements which he had made out of Court.

154 Many, perhaps most, trial judges would have formed the view that having regard to those conflicting accounts, they could not be satisfied that the plaintiff's evidence ought be accepted.

155 However, as it seems to me, the central finding by the trial judge as to how the accident happened was:

(1) open to him on the evidence;

(2) corroborated contemporaneously by the first account the plaintiff gave to some passers by;

(3) corroborated by the presence of skid marks on the road;

(4) corroborated by the fact of, and the nature of his physical injuries; and

(5) undoubtedly made with the benefit of, and advantage which the trial judge had, of seeing the plaintiff give evidence.

156 It is clear from the trial judge's reasoning that the manner of the plaintiff's giving evidence, that is, the subtle influence of demeanour, played a part in the Judge's findings.

157 The defendant, the appellant in this Court, submits that because the evidence of a police expert, Sergeant Castles, about the presence of the skid marks on the roadway was that they were not fresh and hence he explained, unconnected with the accident, was inexplicably, not the subject of challenge by way of cross-examination by counsel for the plaintiff, it ought to have been accepted. The defendant submitted that in failing to accept that evidence, but instead accepting the plaintiff's evidence in chief, the trial judge has palpably misused the advantage he has of the demeanour of the plaintiff. There is a sound basis for the submission that the evidence of Sergeant Castles ought to have been accepted: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [112] per Tobias and McColl JJA.

158 Notwithstanding the strength of this submission, and the inability of senior counsel for the plaintiff (who did not appear at the trial) to give any, let alone a satisfactory, explanation for the failure to cross-examine Sergeant Castles, I am not persuaded that the learned trial judge has fallen into error in accepting the plaintiff's initial account.

159 An acceptance of Sergeant Castle's evidence that the skid marks were not fresh did not disprove the plaintiff's account of what occurred. It simply removed one element of fact that corroborated the plaintiff's version, which he gave in evidence.

160 Still less am I persuaded that this Court is permitted by the authorities to which Campbell JA has referred, to intervene and substitute its own conclusions as to which version of the plaintiff, as to how the accident happened, ought to have been accepted.

Contributory Negligence

161 At trial, the defendant failed to persuade the learned trial judge that the failure by the plaintiff to wear a properly fitted helmet, and the extent of the plaintiff's undoubted intoxication, caused or materially contributed to any injury suffered by the plaintiff.

162 However, because of the provisions of the statute, the trial judge was obliged to, and did, make a finding of contributory negligence and an apportionment of the causative extent of that contribution.

163 This Court should not interfere with that apportionment unless the Judge has acted upon a wrong principle, or else the apportionment is manifestly erroneous: Phillis v Daly (1988) 15 NSWLR 65 at 78 per McHugh JA. Any finding of apportionment is not lightly reviewed: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 at 532.

164 The submissions of the appellant in this Court did not advance a case on contributory negligence, other than that a greater apportionment was warranted on the proved facts. In so doing, the submissions did not bring this case within the narrow confines which the authorities require before this Court is entitled to intervene on this question.

165 As a result, I would dismiss the appeal and agree with the orders proposed by Campbell JA.

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Decision last updated: 03 April 2012