District Court New South Wales

• Medium Neutral Citation: Hall v Yang [2014] NSWDC 36
• Hearing dates: 24, 25, 26, 27 & 30 September, 11 October, last submissions received 20 January 2014
• Decision date: 17 April 2014
• Jurisdiction: Civil
• Before: Levy SC DCJ

Decision

(1)Finding that the defendant was negligent;

(2)Finding that there was contributory negligence on the part of the plaintiff;

(3)The respective culpabilities of the parties is apportioned at 75 per cent on the part of the defendant and 25 per cent on the part of the plaintiff;

(4)The plaintiff's damages are assessed in the sum of $1,310,827.15;

(5)After apportionment, verdict and judgment for the plaintiff in the apportioned amount of $983,120.32;

(6)The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered;

(7)The exhibits may be returned;

(8)Liberty to apply on 7 days notice if further orders are required.

• Catchwords: TORTS - negligence - motor vehicle accident - defendant taxi driver made right turn across path of plaintiff's motorcycle travelling in opposite direction in suburban street - whether defendant negligent - whether speed of plaintiff's motorcycle constituted furious driving to enable defence claimed pursuant to s 54 of Civil Liability Act 2002 - whether contributory negligence on part of plaintiff; DAMAGES - traumatic brain injury - orthopaedic injuries - assessment of claimed heads of damage in context of plaintiff's participation in statutory lifetime care scheme - assessment of loss of earning capacity where self-employed plaintiff failed to lodge income tax returns and his business records were poor and incomplete - use of average weekly earnings as basis for assessment
• Legislation Cited: Civil Liability Act 2002, s 5E, s 54; Crimes Act 1900, s 53; Evidence Act 1995, s 60, s 136; Felons (Civil Proceedings) Act 1981; Motor Accidents Compensation Act 1999, s 126; Motor Accidents (Lifetime Care and Support) Act 2006
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Daly v Theiring [2013] HCA 45; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; Jovanovski v Billbergia Pty Ltd [2011] NSWCA 135; Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529; Rosniak v GIO [1997] 41 NSWLR 608; State of NSW v Gee (aka Michaels) [2002] NSWCA 326; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
• Category: Principal judgment
• Parties: Christian Hall (Plaintiff); Li Yang (Defendant)
• Representation: Mr A Lidden SC with Ms E Welsh (Plaintiff); Mr J Catsanos (Defendant); Walter T Lyubicic & Associates (Plaintiff); Moray & Agnew (Defendant)
• File Number(s): 2012/214880
• Publication restriction: None

Judgment

Table of Contents

Nature of case	[1] - [4]
Issues and summary of conclusions	[5] - [11]
Array of testimony	[12] - [16]
Credit and reliability of testimony	[17] - [26]
Facts - undisputed	[27] - [60]
Plaintiff's background	[29] - [36]
Accident circumstances	[37]
Injuries	[38] - [39]
Treatment	[40] - [42]
Medical and allied assessments	[43] - [52]
Disabilities	[53] - [59]
Mitigation	[60]
Review of eyewitness accounts of the accident	[61] - [138]
Accident reconstruction by expert witnesses	[139] - [147]
Issue 1 - Resolution of disputed facts	[148] - [170]
Issue 2 - Alleged defence under s 54 of Civil Liability Act 2002	[171] - [179]
Issue 3 - Alleged negligence	[180] - [190]
Issue 4 - Alleged contributory negligence	[191] - [212]
Issue 5 - Assessment of damages	[213] - [289]
Plaintiff's probable life span	[216] - [217]
Non-economic loss	[218] - [222]
Past economic loss	[223] - [279]
Future economic loss	[280] - [287]
Past out-of-pocket expenses	[288]
Summary of damages assessment	[289]
Disposition	[290]
Costs	[291]
Orders	[292]

Nature of case

1 At about 6:20pm on Wednesday 19 March 2008, the plaintiff, Christian Hall, suffered an acquired brain injury and orthopaedic injuries in a street collision in Allen Street Leichhardt, NSW.

2 At that time the plaintiff had been riding his motorcycle in an easterly direction along Allen Street when a taxi driven by the defendant in a westerly direction along Allen Street turned right, and across the plaintiff's path, in order to travel north in North Street. At that time, the plaintiff's motorcycle collided with the rear passenger side door of the turning taxi in the eastbound lane of Allen Street.

3 As a result of those events, the plaintiff claims damages for the alleged negligence of the defendant. The defendant denied that he had been negligent, and raised a defence of alleged furious driving on the part of the plaintiff, and therefore claimed this negated any duty of care owed to the plaintiff. The defendant also alleged contributory negligence on the plaintiff's part.

4 The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"] and the Civil Liability Act 2002 ["CL Act"].

Issues and summary of conclusions

5 The essential issues calling for decision in the proceedings can be conveniently outlined as follows:

Issue 1 - Resolution of the disputed factual circumstances of the events of the accident. Essentially, the major issues in contention were the respective road positions of the two vehicles and the speed and manner of approach of the plaintiff's motorcycle in the lead-up to the collision. This required an evaluation of eyewitness accounts and expert evidence;

Issue 2 - Whether the defendant has established the allegation of furious driving on the part of the plaintiff to the required standard of proof, so as to enliven a defence of denial of the plaintiff's claim, pursuant to s 54 of the CL Act;

Issue 3 - Whether the defendant was negligent as alleged;

Issue 4 - Whether the defendant has established a defence of contributory negligence on the part of the plaintiff, and if so, the just and equitable apportionment of the respective culpabilities of the parties for the accident;

Issue 5 - The assessment of the plaintiff's entitlement to damages.

6 Although each of the above issues required careful consideration, it was apparent that the major area of dispute on the liability issues was that of contributory negligence. In order to appropriately frame the consideration of that issue and the other liability issues for determination, it is necessary to set out summaries of the evidence of the respective witnesses and the opinions of the experts.

7 The deliberations of the experts considerably assisted the resolution of the liability issues, particularly the issue of contributory negligence. The experts reached conclusions as to the speed of the plaintiff's motorcycle based on an evaluation of the damage to both vehicles, as is shown in the following sequence of photographs extracted from Exhibit "1", which were influential on the formation of the views of the experts.

8 Photograph 1 below shows a front view of the plaintiff's damaged motorcycle:

 

[Exhibit "1", p 241]

9 Photograph 2 below shows a side view of the impact damage to the passenger side door of the defendant's taxi:

 

[Exhibit "1", p 231]

10 Photograph 3 below shows the impact intrusion damage to the passenger side door of the defendant's taxi:

 

[Exhibit "1", p 232]

11 I have concluded that there was negligence on the part of the defendant as alleged. I have also concluded that the allegation of furious driving on the part of the plaintiff has not been made out. The evidence of the experts has persuaded me that the plaintiff had been riding his motorcycle at a speed in excess of the speed limit of 50 kph at the time of the accident, and probably at about 65 kph. As a consequence, for the reasons set out in my judgment, I have concluded that there was contributory negligence on the part of the plaintiff, apportioned at 25 per cent.

Array of testimony

12 The parties called the following witnesses on the liability and damages issues.

Liability witnesses

13 In addition to the evidence of the plaintiff and the defendant, eyewitness accounts were given by Ms Noelle Bairle, Ms Joanne Papadopoulos, Ms Sue Lymberis and Mr Dominic Cama.

14 The investigating police officer, Sergeant Aram Kraefft, gave evidence of his observations at the accident scene. Mr Fred Schnerring and Mr William Keramidas, the accident reconstruction engineers retained on behalf of the respective parties, gave expert evidence on the liability issues. Those experts gave their evidence concurrently: UCPR r 31.35.

Damages witnesses

15 The only witnesses called to give oral evidence on damages issues were Ms Melissa Watson, a friend of the plaintiff with bookkeeping experience, who had tried to make some sense of the disarray of the plaintiff's business records after the accident, and Mr Mario Bonaccordo, the proprietor of the poultry business Pepe's Ducks, for whom the plaintiff had successfully undertaken some major refrigeration construction works before the subject accident. No credit issues were raised concerning these damages witnesses.

16 The absence of any evidence from certain other witnesses on damages issues was the subject of adverse comment by the defendant.

Credibility and reliability of testimony

17 In the paragraphs that follow, I set out a summary of my conclusions on the credibility and reliability of the testimony of the liability witnesses who gave oral evidence.

The plaintiff

18 As a result of his head injury, the plaintiff had no recollection of the events of the accident. He has suffered a substantial period of retrograde and post-traumatic amnesia. After prompting, the plaintiff had only limited recollection of aspects of his pre-accident life. His evidence was, at some points, given in a disinhibited manner, consistent with the effects of his acquired brain injury.

19 I consider that the plaintiff gave truthful evidence on matters both within his limited residual knowledge of pre-accident events, and concerning the effects of the accident upon him.

Eyewitness accounts

20 I consider that the lay evidence from Ms Bairle, Ms Papadopoulos, Ms Lymberis and Mr Cama was given truthfully, however I consider that some of that evidence was affected by inaccurate reconstruction. My reasoning for that view appears in my consideration of Issue 1 where that evidence is analysed.

Sergeant Kraefft

21 On behalf of the plaintiff, Mr Lidden SC attacked Sgt Kraefft's credit with allegations of dishonesty in his investigation of the accident: T105.20 to T105.26. That attack was rebutted by Sgt Kraefft in the following terms:

"Q. Do you think you were honest in your investigation, sergeant?

A. Absolutely.

Q. I want to suggest to you that you were dishonest in the way that you investigated this accident. What do you say to that proposition?

A. I absolutely negate that. There is no way - I was very objective throughout this, as with all my investigations."

22 Mr Lidden SC sought to develop that attack on the credibility of the testimony of Sgt Kraefft, as appears in the following examples:

(1) It was implied that he disregarded the fact that the plaintiff's motorcycle had been moved before he had arrived at the scene to investigate the accident: T107.10. It seemed to me that this matter was of little consequence because it was the scuff mark on the roadway that indicated the point of impact that was the important piece of data on that issue;

(2) It was suggested, and conceded, that by the time he came to interview the defendant he had already formed the view in his own mind that the plaintiff's motorcycle had been driven at an excessive speed: T110.24. In my view, that was a reasonable working hypothesis for an accident investigator to adopt at the time, given the extent of damage to both vehicles. In my view, no relevant criticism arises from this as the investigating police had to consider that possibility in any event;

(3) It was suggested (and denied) that he set about distorting the ERISP interview of the defendant so as to assist his own views: T110.27. Whilst there were a number of problems with the interview, to which I shall return in my consideration of the version of events by Mr Yang, the transcript of the electronically recorded interview ["ERISP"] speaks for itself. However, in my view, it does not support the construction asserted in the attack on Sgt Kraefft. The interview was a difficult one, and he did his best in the circumstances;

(4) He had asked a number of leading and cross-examination style questions in the interview, contrary to police guidelines: T113.25 and following. Whilst some questions along those lines were asked, given the circumstances of Mr Yang's incomplete and at times difficult to comprehend answers to questions, such an approach was understandable in order to get to the crux of the matter at hand and to seek clarification of the facts;

(5) It was suggested that he was being "a bit tricky" in describing the arrest of Mr Yang for the summary offence of negligent driving when the actual charge was negligent driving occasioning grievous bodily harm: T123.25. That suggestion was denied. In any event, the charge was correctly described in the ERISP transcript of the interview with Mr Yang. Nothing turns upon this;

(6) It was suggested that in interviewing the eyewitnesses and to obtain an estimate from Mr Yang of the time interval between when he first saw the motorcycle and the time of the collision, he was trying to lengthen the estimate for his own purposes, a matter that he denied, stating he was simply trying to obtain accurate information: T129.8. Given that the estimates came from the defendant himself, and given that the object of the investigator's questions was to try and ascertain what happened in the events of the accident, I do not consider this to be a fair criticism;

(7) There was criticism of the suggestion that he had introduced the word "leaning" to describe the attitude of the motorcycle in the lead-up to the collision, when this was a word that had been provided to him by Mr Yang beforehand: T132.15. In those circumstances, nothing should turn on that matter;

(8) It was suggested that he had failed to recognise that Mr Yang had simply been adding to his story in an exculpatory way during the course of the ERISP interview, which he denied, stating that the questions were simply designed to explore the evidence at the time of the interview: T135.9. I do not see anything sinister in the police approach to the interview in that regard, where it was the choice of the defendant as to how he answered the questions that were being put to him;

(9) It was suggested that he had asked the defendant insufficient questions about whether, at the time of the accident, his vision had been affected by the westerly sun before the collision occurred, and that he had thereby prematurely moved the interview on to another topic: T137.28. I consider that when the ERISP transcript is read as a whole the criticism has no substance as the change of topic was a reasonable course to follow, especially given the late hour when the interview was proceeding;

(10) It was suggested he had inappropriately prompted the defendant with questions about the plaintiff's headlight, a matter he denied: T139.36. I accept that denial and the basis for it, namely that he was in fact trying to get the defendant to focus on his observations at the time, and as to whether he had been keeping a proper lookout;

(11) It was suggested that he was dissatisfied with the defendant's answers as to pre-impact vehicle separation distances as provided by the defendant, a matter he denied: T147.40. I accept that he was simply trying to explore the evidence in accordance with his investigative duty at the time.

23 I find that the attack on the credit of Sgt Kraefft as a witness has not been made out. In arriving at that view I have considered the correspondence and file notes exchanged between Sgt Kraefft and his supervising officer: Exhibit "H". That material comprised initial police material that analysed whether or not the police should bring charges against a party. Ultimately, no charges were brought. I consider that material has no relevance to the liability analysis required to be undertaken in this case. Furthermore, I do not consider that the views expressed by Sgt Kraefft in responding to his supervisor indicated a view that influenced his evidence in these proceedings.

24 The relevance of Sgt Kraefft's evidence was not as an expert, but in his capacity as the investigating police officer, who gathered the available facts and statements in the course of his official duties.

The defendant, Mr Yang

25 Although I am also satisfied that Mr Yang did his best to provide a truthful account of the events leading up to the accident, and after making due allowance for language difficulties and understandable combativeness in his answers in response to the attack made on him during cross-examination, I formed the view that I could not rely upon substantial portions of his evidence. My reasons for that conclusion appear in conjunction with my analysis of his evidence.

The liability experts

26 The reliability of the expert evidence is determined by the factual analysis concerning the events of the accident.

Facts - undisputed

27 In the paragraphs that follow, before giving consideration to the issues calling for decision, and unless otherwise qualified, I set out the undisputed facts concerning the plaintiff's background circumstances, the non-controversial facts surrounding the accident, and the nature of the injuries sustained by the plaintiff.

28 The treatment the plaintiff received, the details of the medical and allied assessments, his remaining disabilities, the issue of mitigation and the assessment of damages will follow the identification and resolution of the differing factual accounts from the parties and the eyewitnesses, and the evaluation of the evidence given by the respective experts.

Plaintiff's background

29 At the hearing, the plaintiff was aged almost 42 years. At the time of his injury he was aged 36 years. Before the subject injury he was in good general health apart from some residual effects of an earlier injury to his right arm, which had required elbow surgery. That injury did not appear to have any long-term ill-effects upon his earning capacity.

30 After completing his schooling to Year 12 level, the plaintiff pursued a variety of jobs, including partitioning offices, courier driving, and sales work. In 1991 he commenced employment in his father's refrigeration business known as North Shore Refrigeration. In 1994 he obtained a TAFE certificate in refrigeration and he had completed his apprenticeship in that trade whilst working for his father.

31 After leaving his father's employment the plaintiff worked as a security guard for some time but he ceased when he injured his right arm. After being off work for about 6 months due to that injury, he commenced self-employment in the refrigeration industry.

32 In 1997, at the age of 26 years, the plaintiff established a business known as Hall and Hall Refrigeration and Universal Business Systems. In 2005 he established a business known as CRS Refrigeration. These businesses were not incorporated. There is also evidence of the plaintiff trading under similar business names. At some stage, for a period that was not accurately identified, the plaintiff had also worked in a partnership in the refrigeration industry with a friend, Mr Richard Barnes, whose name appears as a joint holder of a bank account with the plaintiff.

33 The documentation of the plaintiff's business activities was largely absent. The evidence disclosed that before his accident the plaintiff had not lodged income tax returns or any Business Activity Statements. His pre-accident business paperwork was described as having been in a mess. Such business records that existed had been kept by the plaintiff in an unsorted state in boxes stored under his bed in a most unbusinesslike state.

34 A post-accident attempt was made to sort out his financial affairs. Ms Watson, a friend of the plaintiff with bookkeeping experience, spent some time assembling and ordering whatever records existed in order to establish a draft schedule which was later modified and used to negotiate with the Australian Taxation Office to resolve the plaintiff's outstanding taxation liability issues. I will refer to these matters in greater detail in connection with the analysis of the plaintiff's claim for economic loss and loss of earning capacity.

35 The evidence on the economic loss issues was restricted to the documents assembled after the accident by Ms Watson. There were also schedules based on those documents, and some general evidence from Mr Bonaccordo concerning aspects of the plaintiff's past work and future work prospects in the refrigeration fabrication industry.

36 Some potential witnesses on economic loss issues were notably absent. These included the plaintiff's father, who had been sitting in court for substantial parts of the hearing, the plaintiff's brother who had conducted the negotiations and correspondence with the ATO regarding resolution of the plaintiff's outstanding tax affairs, Mr Richard Barnes, who was the plaintiff's former business partner now living in Western Australia, and some building contractors who, according to the evidence of the plaintiff, had been waiting outside the court to give evidence in these proceedings, but who had not been called upon to give any evidence.

Accident circumstances

37 The extent to which the facts of the events leading up to the accident are undisputed is adequately set out in paragraph [2] above. However, those facts require a more detailed analysis in connection with the consideration of Issues 1, 2, 3 and 4.

Injuries

38 The details of the plaintiff's injuries have been obtained from the medical reports that had been tendered, and these are summarised as follows:

(a) a serious head injury resulting in a traumatic and hypoxic brain injury with a Glasgow Coma Score of 3;

(b) a related cardiac or ventriculo-pulmonary arrest at the accident scene requiring CPR and DC version;

(c) a fracture to the left side of the chest, an associated pneumothorax, and bilateral lung contusions;

(d) a fracture of the left ulna with displacement of the mid-shaft of that bone;

(e) degloving injury to the palmar aspect of the right hand;

(f) a cruciate ligament tear of the right knee;

(g) Multiple lacerations in unidentified locations on the plaintiff's body.

39 The consequences of those injuries will be taken up in the course of the analysis of the evidence relating to damages, and in the reasons for the assessment of damages.

Treatment

40 The plaintiff was given first aid and cardio-pulmonary resuscitation at the accident scene. He was then taken by ambulance to Royal Prince Alfred Hospital, where he remained an inpatient in the intensive care unit at the hospital for 2 weeks, followed by a transfer to a neurosurgical ward, where he remained for 2 months.

41 The plaintiff initially had increased intra-cranial pressure and a persistently decreased level of consciousness. This required the placement of an intra-cranial pressure monitor. The plaintiff's GCS remained low for a prolonged period, with the best score being noted to be 8. This required prolonged neurological observations. The plaintiff's wounds were treated by debridement and plastic surgery. The plaintiff was provided with a Zimmer splint as part of the management of his right knee injury. Whilst he was in hospital he needed treatment with Vancomycin for treatment of a serious nosocomial respiratory infection. He also required heparin for treatment of a thrombosis that was detected in his right calf.

42 On 22 May 2010, the plaintiff was transferred to Princess Alexandra Brain Injury Rehabilitation Unit in Brisbane. He was sent there because of the availability of family support. He remained there for 75 days between 22 May 2010 and 5 August 2010.

Medical and allied assessments

43 The medical reports concerning the assessment and treatment of the plaintiff were sparse and incomplete. The chronology of the assessments that were disclosed in evidence is summarised as follows.

44 On 7 March 2010, at the request of the lifetime care scheme co-ordinator, the plaintiff was assessed by Dr Alexandra Walker, a neuropsychologist. The purpose of that consultation was to assess the plaintiff's capacity to return to work, to return to driving, his capacity to manage personal decisions and to manage his financial affairs, given that he had been subject to a financial management administration order in Queensland.

45 That order was the subject of some contention until it was lifted. It had been imposed by order of an administrative tribunal whilst the plaintiff had been residing in Queensland. Dr Walker recommended that the guardianship order be revoked. In doing so, she nevertheless noted the plaintiff had significant impairments with memory, with problem solving, emotional constraints, planning, organisational and arithmetical tasks, as well as problems with mental flexibility and frustration.

46 On 1 September 2010, at the request of Dr Margaret Bryce, a general practitioner, the plaintiff was examined by Dr David Duckworth, a consultant orthopaedic surgeon and specialist in shoulder and elbow problems. Dr Duckworth noted that the plaintiff had osteoarthritis in his left glenohumeral joint. Dr Duckworth arranged for the plaintiff to have a shoulder CT scan. The result of that scan, and any related material from Dr Bryce, were absent from the evidence that was tendered.

47 On 30 November 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Brian Zeman, a consultant rehabilitation physician. Dr Zeman's report was dated 17 December 2010. Dr Zeman noted the plaintiff was a poor and not always reliable historian. He considered this to be consistent with insight problems following traumatic brain injury. Dr Zeman considered the plaintiff might have some residual physical capacity for selected work, but he concluded that his memory, cognitive, executive and behavioural issues that followed the accident, would render him unfit for open employment.

48 On 3 December 2010, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Alex Falcon, a clinical neuropsychologist. Dr Falcon's report was dated 9 December 2010. The assessment was to assess the plaintiff's post-accident cognitive impairment. Dr Falcon concluded that the plaintiff had suffered an extremely severe traumatic brain injury with the additional effects that followed a period of hypoxia following cardiac arrest. Dr Falcon noted an extensive period of retrograde amnesia. Dr Falcon's test results were consistent with those obtained earlier by Dr Walker. The significant cognitive impairments revealed on testing, including behavioural impairments and insight difficulties indicated that a successful long term return to employment was highly unlikely.

49 On 20 September 2012, at the request of his solicitor, the plaintiff was examined for medico-legal purposes by Dr Peter Conrad, a consultant surgeon. After reviewing the plaintiff's physical and brain disabilities, Dr Conrad concluded that the plaintiff was not able to work in any capacity.

50 On 6 November 2012, at the request of the solicitor for the defendant, the plaintiff was assessed by Professor Robert Pryor, a vocational psychologist. Professor Pryor's resultant report was dated 19 November 2012. Professor Pryor noted the presence of motivational issues referrable to the plaintiff's brain injury as well as behavioural issues, but suggested the plaintiff was likely to be capable of basic short course training at pre-trade and some trade levels of employment. He then went on to identify a series of potential job matches, apparently based upon statistical data.

51 Those positions comprised ticket seller, gatekeeper, line marker, vending machine attendant, rental salesperson, general sales assistant, motor vehicle parts interpreter and forklift driver. The practicalities of those suggested vocations will be addressed in the course of the consideration of the plaintiff's claim for economic loss. In the meantime, it is relevant to observe that Professor Pryor seems not to have been given or considered the medical opinions that placed physical and intellectual restrictions on the plaintiff's employability.

52 On 20 November 2012, the plaintiff was re-examined by Dr Zeman at the request of the solicitor for the defendant. Dr Zeman's second report was dated 28 November 2012, and was in essentially similar terms to his previous report dated 28 November 2010.

Disabilities

53 I am satisfied that the plaintiff gave truthful evidence about the extent of his injuries and his related complaints. I therefore propose to draw upon the available medical reports for evidence of the plaintiff's post-injury difficulties, his treatment, and his ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. My findings on those matters follow.

54 The plaintiff's physical disabilities relate to his left shoulder, left elbow, right hand and right knee.

55 The plaintiff has pain, discomfort and restriction of movement of his left shoulder and left elbow. He has reduced strength and grip in his right hand. He also has skin grafting and associated adherent skin to his right hand. He has crepitus and reduced flexion in his left knee, and his gait is adversely affected.

56 The consequences of the plaintiff's head injury and hypoxia with resultant brain damage has had adverse cognitive and behavioural implications for the plaintiff.

57 From the cognitive perspective, the plaintiff suffers from impaired memory and reduced speed of information processing. His executive functioning is impaired. He has reduced verbal fluency and reduced problem solving and mathematical skills. He perseverates when he encounters cognitive obstacles. He had a long period of retrograde amnesia.

58 From the behavioural perspective, the plaintiff has impaired insight, he exhibits behavioural changes, including aggressiveness, cognitive rigidity, disinhibition, and impairment of relationships.

59 As a result of the above disabilities, the plaintiff has suffered a major impairment in the enjoyment of the amenity of his life. He is now effectively unemployable and he needs regular domestic assistance.

Mitigation

60 The defendant did not argue that the plaintiff had in any relevant way unreasonably failed to pursue mitigation of his claimed losses. Accordingly, there should be no finding that the plaintiff had failed to mitigate his damages.

Review of eyewitness accounts of the accident

61 In the paragraphs that follow, before setting out my findings on disputed matters of fact concerning the events of the accident, I set out the essence of the testimonies given by the respective independent eyewitnesses, the evidence of the defendant, the evidence of the investigating police officer, and the effect of the expert evidence that followed the conclave between the expert witnesses.

Evidence of the plaintiff

62 The plaintiff could offer no useful evidence concerning the circumstances of the accident. It was common ground that before the accident he was a very experienced motorcycle rider. It was also common ground that he was familiar with the area where the accident occurred. It can be safely inferred from those circumstances that at the time of the accident, the plaintiff must have been aware of the general nature and topography of the roads in the area, and that he was also aware of the applicable speed limits for vehicular traffic in the area.

Evidence of Mr Yang

63 At the time of the accident Mr Yang was aged 49 years. At the hearing he did not speak English fluently. He held degrees in Chinese literature from a university in China before migrating to Australia 23 years ago. At the time of the accident he had been in Australia for 18 years. At the time of accident he had been driving taxis for about 3 years. He still drives taxis. He gave his evidence with the assistance of a Mandarin interpreter but at times he became frustrated at the process and occasionally tried to communicate without the interpreter. At times he became combative in response to the matters put to him in cross-examination. That may well have been attributed to cultural differences.

64 On the day of the accident, Mr Yang had commenced his driving shift at 3:40pm, which was some 40 minutes later than was usual. At about 6:00pm he had picked up a passenger, Miss Papadopoulos, at Central Railway Station, in order to drive her to Leichhardt. She had not given him an address for the destination, just the name of the suburb.

65 Miss Papadopoulos was sitting in the front passenger seat of the taxi and was conversing on her mobile telephone, and at the same time she was giving Mr Yang verbal and non-verbal directions, including in the moments leading up to the accident.

66 Mr Lidden SC challenged the reliability of the evidence given by Mr Yang. In his defence to that challenge, with understandable frustration, Mr Yang pointed to the fact that at the hearing he was giving his oral evidence over 5 years after the events in question. In cross-examination he stated "... it has been too long. I don't remember it clearly": T185.28.

67 Unsurprisingly in those circumstances, given Mr Yang's evidence of his length of residency in Australia, and given that his English was still "not good" (T194.32), when cross-examined on his account of events, not being familiar with the legal process, he combatively suggested that the cross-examiner should base his questions on the CD recording of the ERISP that had been recorded by the investigating police officers shortly after the accident: T184.30.

68 Mr Yang made that suggestion in the course of vigorous and repeated challenges by Mr Lidden SC to the accuracy of his evidence of the events for which he was providing estimates of the respective road positions, distances and speeds of the respective vehicles: T182.49; T183.48; T184.48.

69 From the context, I took Mr Yang's reference to the recorded interview to mean that he was saying the content of the ERISP that he had given to the investigating police was truthful (T181.50 to T182.1) and contained his most accurate account of the events in question.

70 In those circumstances, I propose to review the relevant details from within Mr Yang's oral evidence, and then proceed to review the content of the ERISP on relevant factual matters before making my assessment of the reliability of the evidence of Mr Yang on crucial matters of fact.

Oral evidence of Mr Yang

71 Mr Yang had not been given the opportunity of refreshing his memory from the ERISP before he gave his oral evidence: T185.49.

72 Some of Mr Yang's answers to questions were recorded in the transcript as being not transcribable. The parties have sought to reach agreement on what those answers were as best they could after reviewing the audio recording. They prepared a note containing those interpretations: Exhibit "8".

73 Essentially, Mr Yang's oral evidence comprised the following descriptions:

(1) His passenger (Ms Papadopoulos whom he had picked up at Central Railway Station and asked him to take her to an unstated place in Leichhardt) had been speaking on her mobile telephone, and had directed him to turn from Parramatta Road into Norton Street, Leichhardt, and then into Allen Street: T175.10 to T175.19; T176.6; 176.35 to T175.38. He had been expecting her to give him directions but she had been talking on her mobile telephone throughout the journey: T189.15 to T189.20;

(2) After travelling some distance in Allen Street, at a point about 10 metres from what turned out to be North Street, Ms Papadopoulos told him "Turn right here": T176.6 to T176.50. This was possibly a verbal direction as well as a hand gesture: T190.11; T203.27;

(3) Mr Yang said he then turned on his right turn blinker signal, looked ahead and then turned right: T177.2 to T177.10;

(4) Before making his turn, Mr Yang said he saw the motorcycle ahead of him. Some of the evidence he gave on this point is not transcribable but it is agreed that it included the word "roundabout": T177.15, Exhibit "8". The juxtaposition of the words right turn and left side make the answer indecipherable;

(5) Mr Yang said he saw the plaintiff's motorcycle at the roundabout ahead at a vehicle separation distance of about 90m to 100m: T177.18 to T177.46;

(6) Mr Yang said his assessment was that in those circumstances he had "plenty time to turn right": T178.17;

(7) Those circumstances were that the motorcycle was coming towards him on the eastbound side of the road into which he was turning: T178.5 to T178.13);

(8) Mr Yang was travelling at a speed he described as being about 40 to 50kph: T178.20. In cross-examination, he emphasised that his estimates of speed were not accurate (T183.48) and could possibly have involved mistake on his part: T184.50. He had been looking at the speedometer and was watching the road instead: T183.12 to T183.22;

(9) He was not sure whether he had slowed his speed, but thought he may have done so a "little bit": T178.23;

(10) When turning to his right he first looked in front, at which time he made the judgment that he had time to turn, he then turned, and presumably looked to where he was going, and half-way through his turn to the right he looked to his left out of his front passenger window (T178.38) to "double-check again" and at that time he saw the motorcycle at an estimated separation distance of about 50m from his taxi: T178.25 to T178.30;

(11) At that point Mr Yang thought the speed of the motorcycle was about 90kph: T178.45. He said that he based that estimate on "Just thinking about it" in the context of his road position, the separation distance between the two vehicles and because he was only 2m or half-way into his turn: T179.5 to T179.8;

(12) At that point Mr Yang thought that the plaintiff had lost control of his motorcycle because it looked to him that this was so based on his perception of the rider "shaking": T179.8. This was clarified by him using exaggerated vibrating movements of both arms with his hands in the grip position as if holding handlebars and using a jackhammer to demonstrate what he was seeking to convey: T180.44 to T181.5;

(13) Mr Yang then said he quickly turned in [to the intersection of North Street] and he then felt the motorcycle strike the rear passenger side door of his taxi: T179.40 to T180.7.

74 Mr Yang forthrightly rejected as "nonsense" the rolled-up assertions Mr Lidden SC put to him to the effect that he was "making up" or "fabricating" his evidence (T192.25), and he denied telling "a whole lot of untruths" in describing the manner in which he had turned his vehicle at the time: T198.20.

75 I now turn to consider the ERISP transcript of the interview, which was conducted some 6 hours after the accident. I consider that it can be reasonably assumed that at that time, Mr Yang's memory of the facts was relatively fresh when he was questioned in some considerable detail about those events.

Mr Yang's answers to questions in the ERISP on 20 March 2008

76 At 12:14am on 20 March 2008, Sgt Kraefft interviewed Mr Yang using the ERISP procedure at Glebe police station, with the assistance of Sgt Ibrahim. The interview proceeded for 1 hour and 52 minutes with some short breaks in the recording until it concluded at 01:38 am. It can be reasonably described as a gruelling experience for Mr Yang.

77 That interview was conducted with the assistance of a Mandarin interpreter. Some of Mr Yang's answers were provided in English, and others were provided through an interpreter. The same process occurred during his evidence given at the hearing. In all, there are 414 questions and answers raised and addressed in that ERISP. It was a lengthy, tiring interview given the time it was undertaken.

78 The transcript of the ERISP was tendered: Exhibit "1", pages 149 to 188. Before he was interviewed by the investigating police, Mr Yang had been arrested for negligent driving occasioning grievous bodily harm: ERISP Q.20. Ultimately, the police did not proceed with that charge against him.

79 Some parts of the ERISP in which Mr Yang gave his account of the events of the accident were difficult to follow because a number of his answers were recorded as being incomplete and were disjointed. The interview was conducted with the assistance of a piece of paper on which Mr Yang made some drawings and markings in order to assist himself with his answers: Exhibit "F".

80 Sgt Kraefft explained that the interviewing style he adopted for the ERISP was described as a "cognitive" one in which non-leading questions were sought and then the answers were explored in broken down segments: T127.50 to T128.1.

81 The electronic version of the ERISP was not tendered. Some of the incomplete answers contained in the transcript of the ERISP have been extracted in the following paragraphs to demonstrate significant examples of the incompleteness of the answers, the inclusion of difficult to decipher non-verbal answers to some questions, and the disjointedness of the process of the conversation between interviewer and interviewee. These appear between Q.54 and Q.94 in Exhibit "1", pages 156 to 160.

82 Since that material is critical to an understanding of Mr Yang's version of events, I set out that extract below:

"Q54 I'm going to say that it's been alleged that around about 6.15, 6.20 earlier this evening or, that evening on the, on the Wednesday, the 19th of March, 2008, that you were the driver of that white Ford Falcon taxi, registration number T-3-0-1-8 when it was involved in an impact with a motorcycle at the intersection of Allen Street and North Street at Leichhardt. Can you tell me, were you the driver of that taxi at the time of that collision?

A Mmm.

A(lnt): O.K. What time again, 6.15?

Q55 6.15 to 6.20.

A Yes. Yes.

Q56 Yep. Can you please tell us your version or your explanation of how the crash happened and please feel free to use Miss Chan if you need to - - -

A Yep, O.K.

Q56 - - - if you want to speak in your tongue, your native tongue, that's fine.

A Yep. Can I ah, get some paper and then ah, draw - - -

Q57 Certainly.

A - - - um, the ....

Q58 Yep, yep.

A It's a bit more comfortable:

Q59 Ah hmm.

A Yep

Q60 Just remember, please, that that's the microphone, that needs to -

A Yep.

Q60 - - be - - -

A ....

Q61 Thank you.

A Yep. Ah, it's all .... It's ah, Allen Street. It's Allen Street from this one, it's ah, from ah North Street here. Do you understand that?

Q62 That's North Street here, yep.

A North Street here.

Q63 Ah hmm. Ah hmm.

A Yep. I ---

Q64 O.K. Suspend it again. 12.35am.

INTERVIEW SUSPENDED

INTERVIEW RESUMED

LEADING SENIOR CONSTABLE KRAEFFT

Q65 O.K., 12.35am. We'll recommence the interview.

A Yep.

Q66 O.K. Now, you were going to explain your version ---

A I ---

Q66 --- to us of how the crash happened.

A --- I want to, I want to speak ah, English, try to speak ....

Q67 O.K.

A And if, and I can't speak very well, I need interpreter to ....

Q68 Certainly.

Yep. Yep, that's, yep, that's certainly ....

A And ah, I hope I, I can draw and .... This ah, Norton Street in Leichhardt, Norton Street.

Q70 Norton Street, yep.

A And I driving taxi from ah, here .... to, to here ah, to Allen Street ---

Q71 Ah hmm.

A --- Allen Street. My, my passenger tell me to turn right, turn right here, yeah, so I, when I, when I drive here, about here l put a light on and then tried turning. I saw a .... from ah ---

Q72 Saw a what, sorry? A - - -

A I saw them walk umm .... motorbike, sorry.

Q73 A motorbike.

A Motorbike.

Q74 Ah hmm.

A It was turning here .... two car here. I, I remember one is red car, one is red car here. The other one is a white car in front of That car, he turn in just here .... Then I tried to, to ah, to turn around here, turn around. About the, the forty to fifty kilometre I just slowly turning. Then I turn halfway, about halfway here and .... then the motorbike already here about fifty metre .... about fifty to eighty metre .... Then I saw the window .... He already .... and another driver .... on the top.

Q75 AH right. I, I don't quite understand what you mean.

A Um - - -

A (Int): O.K. When I saw the motorbike and the driver lost control, kind of like a jagging a couple of times.

Q76 O.K.

A .... Then I, and then just about fifty metre, and then I tried to .... as he move a little bit in, he keep going, going past but ah, he know .... I think in the .... ninety kilometre an hour .... from here. .... more, more faster to come through, through here and this way, he already hit me here. Then he got back, jumped back like here and then person lie here in the corner here .... already in the street, in Norton Street, but ah, he turn in, like, a little bit, little bit like that.

Q77 He was driving in towards ---

A .... passing me, but .... behind there I already inside near the inside. Then I .... I turn in then I, I hit a .... here. My car there ---

Q78 O.K.

A --- on the corner.

Q79 All right.

A Just like that.

Q80 Can I ask you just to, you put here, is that fifty to eighty?

A Metre.

Q81 Metre. Just put metres behind there.

A Yep

Q82 O.K.

A Yeah, metre.

Q83 Metre. And, and you've ---

A .....

Q84 Yeah.

A Yep.

Q85 And you've put here ninety. Is that kilometres per hour?

A Yeah, kilometre per hour.

Q86 Kilometre per hour or?

A .... yeah, yep.

Q87 And can you just write where your taxi came to a stop?

A Stop.

Q88 On the corner. Can you just write taxi stop.

A Stop. Ah, taxi, about .... about here .... here. From here and then go to here.

Q89 O.K. All right, thank you. That, that, that fulfils your requirement under our road rules ---

A Yep.

Q89 --- for supplying a version, so ---

A Mmm.

Q90 --- from here on in, you do not have to say anything further unless you wish. Do you understand that?

A Yep. Yeah, I understand.

Q91 O.K. I would like to ask you some more questions.

A Yep.

Q92 Would you like to still keep going with the interview?

A Yep. Yep, sure.

Q93 O.K.

A Yep.

Q94 All right.

A Yep."

83 Some portions of the ERISP transcript bordered upon the incomprehensible, for example, the questions and answers between Q.164 to Q.174 in Exhibit "1", at pages 165 to 167, which were as follows:

"Q164 Ah hmm. O.K. Rightio. O.K. All right. And when you came into the Leichhardt area -

A Ah hmm.

Q164 - was this lady, your fare, was she still giving you directions where to go?

A Ah, yeah. She tell me, I, from, I .... turn to Norton Street .... right turn. I turn there, is a .... so I turn to pass the ah, Leichhardt Town Hall. Lady tell me turn in, turn here and see, I turn in. Then tell me turn to Norton Street, I turn.

Q165 O.K. Did you, do you know this area well off Allen Street in Leichhardt?

A Yeah. I probably -

Q166 Have you been through that road before?

A Yeah.

Q167 How many times would you have been along that road before?

A Oh, it's, I can, I can't count, it's just ah, I pass there before and....

Q168 All right.

A Yeah.

Q169 Would you go through there, you know, a number of times a week or a number of times a day?

A A number times a week, a month. Yeah.

Q170 Ah hmm.

A Yeah.

Q171 What's the speed limit along there? What is the speed limit along Allen Street?

A Allen Street um, about fifty. Yeah, fifty.

Q172 All right.

A I, I, in my opinion, it's on the, this .... it's a speed just about fifty kilometre a hour, so I .... here, that's right, I .... and it's a Mobil, Mobil .... the speed should be fifty or more, be seventy like that, I should ....

Q173 Ah hmm.

A 'Cause I count it.

Q174 O.K.

A 'Cause I don't know. She, she just so fast and I go eighty or ninety kilometre. I don't know."

84 Another example of a portion of the ERISP transcript that was difficult to follow appeared in the questions and answers between Q.211 to Q.217 in Exhibit "1", page 170, where the answers were being given in conjunction with a drawing, which became Exhibit "F", as follows:

"Q211 --- how far away from the intersection of North Street were you when you first saw the motorcycle?

A How far away? You mean here to here?

Q212 No, how far away was your taxi ---

A Ah huh.

Q212 --- from the intersection ---

A Ah hmm.

Q212 - - - of North Street - - -

A Ah hmm.

Q212 --- if you can estimate metres ---

A Ah hmm.

Q212 --- when you first saw the motorcycle?

A Oh, about ninety ah, ninety metre. Oh, you say .... here or here or just here to here?

Q213 So to, let's say to the point where you turn, so to the centre area of North Street - - -

A Ah hmm. Ah ---

Q213 --- how far were you from the centre area?

A (Int): You mean, from this point to that point or from this point to that point?

Q214 Yeah, from this point to, to the centre area. So where, before he turned.

A (Int): Just from here to there?

Q215 Sorry? Yep.

A From here to here?

Q216 Yes.

A About um, about two metre.

Q217 Ah hmm. When you first saw the motorcycle ---

A Ah hmm.

Q217 --- were you still travelling straight in Allen Street?

A Yeah. I still, still on, on the ah .... I tried to turn in."

85 Essentially, a condensation of Mr Yang's account of the events leading up to the accident, as recorded in the ERISP transcript, can be summarised as follows:

(a) At about 6:20pm he was travelling in Allen Street, on a long straight stretch of roadway in a slightly uphill westerly direction, in dry conditions, into the sun with a clear view of the roadway ahead, including to the roundabout ahead: ERISP Q's 183 to 186; 197 to 207;

(b) He was able to see the "very first glimpse" of the plaintiff's motorcycle when it was at the roundabout, and he saw this when he had reached North Street, at which time he put on his light, meaning his right turn indicator: ERISP Q's 186; 208 to 210;

(c) At the time he first saw the motorcycle it had just passed the roundabout and it was leaning to the right: ERISP Q's 222 to 229;

(d) At that time he estimated the distance between the motorcycle and his taxi as being about 90 metres: ERISP Q. 212. He made that observation through his front windscreen: ERISP Q.255;

(e) He estimated that it took the motorcycle about "a second ... or something" to cover the distance from that first sighting to the point of impact: ERISP Q. 230;

(f) After giving that timing estimate of about "a second" some further thought, his attention was brought back to it during the ERISP, he said that interval between first sighting, the motorcycle and the impact was "Um, about two seconds" and then through the interpreter, he said: "I feel like two or three seconds", and then later, after being asked to go through a timing exercise where the interviewer kept track of the passing of time using a watch or a clock, Mr Yang expanded that estimate to "about four seconds": ERISP Q's 234 to 245;

(g) At the time his taxi had turned into North Street, he was travelling at about 40kph to 50kph, and his stated intention had been to make a right turn into North Street at that speed: ERISP Q's 218 to 220;

(h) In those circumstances Mr Yang considered that in the course of that turn, the motorcycle could travel a distance of 50 or 60 metres out of those 90 metres, and that he would still have enough time in which to make his turn: ERISP Q. 232;

(i) Significantly, Mr Yang did not keep watching the motorcycle after he had commenced his turn: ERISP Q. 250;

(j) It appears that Mr Yang had turned his taxi across the path of the motorcycle when it was about 50 to 80 metres away from him, and he then only saw the motorcycle on a collision course with his vehicle when he was half way into his turn, at which time he believed the plaintiff had lost control of his motorcycle : ERISP Q's 250 to 252; 374. He said he made that observation through his front passenger side window: ERISP Q. 258;

(k) Mr Yang stated that he believed that when he had turned across the plaintiff's path he had enough time to turn, and it appears that in making that judgment, he had assumed that the plaintiff must be slowing down to 50kph: ERISP Q's 260 to 261; 262;

(l) Mr Yang stated that he was about 2 to 3 metres away from making his turn before he activated his right turn blinker, and in those circumstances, he had travelled about 2 metres before turning his wheel to the right: ERISP Q's 353 to 360;

(m) Mr Yang said when he first saw the plaintiff's motorcycle at the roundabout, he had already put his blinker on: ERISP Q's 361 to 367;

(n) Mr Yang claimed that the plaintiff's "light was not on" so he "did not pay attention to the light", and reiterated that the plaintiff's speed was very fast: ERISP Q's 380 to 383;

(o) Mr Yang denied having been distracted whilst he was driving in the lead-up to the accident: ERISP Q. 295. He was of the opinion that Ms Papadopoulos had used her mobile telephone for conversation before he had turned into North St: ERISP Q. 300. He said that when she told him to turn right he had already prepared himself and he turned on his right indicator signal. In relation to that manoeuvre, he said "I put on light, just turning": ERISP Q. 389;

(p) Mr Yang did not see the impact between the motorcycle and his taxi because he was driving, into North Street: ERISP Q's 331 to 333;

86 In those events, at Q.250 to Q.263, at pages 174 to 175, the following questions and answers appear in the ERISP:

"Q250 - - - leaning - - -

A Mmm.

Q250 --- were you watching it the whole time to when it crashed?

A No. I, I just turn in the half, I saw he, in the, about fifty to eighty metre

Q251 Mmm.

A I quicker, wanted to drive in there, it's because of the halfway in the middle.

Q252 O.K. So why did you quickly want to drive in?

A Well, I, I .... I just drive in there, in the halfway. I saw the motorbike, it's lost control, like, like, it jumped and that. He lost control and the .... move up and move up and jumped and moved and jumped and that. Then I want to, no quick, I just want to .... I, before I try, I want to stop, but the .... I just .... move in like that.

Q253 O.K. Initially, from the start, were you able to see the motorcycle through your windscreen when you first saw it?

A Ah hmm.

Q254 Yes. Was that yes or?

A (int): When, when he first saw it?

Q255 Yeah. Was he, initially when you first saw the motorcycle, were you able to see it through your windscreen properly?

A (Int): Yeah, the front windscreen, yeah.

Q256 O.K.

A Mmm.

Q257 When you were turning ---

A Mmm.

Q257 --- which window did you see the motorcycle through?

A Um, the ah, left-hand side.

Q258 The left-hand side.

A Left-hand side.

Q259 The passenger side of the window. O.K. Did the motorcycle have its headlight on?

A No.

Q260 O.K. Can I ask, is there any reason why having known that the motorcycle was coming down the road, why you made a right-hand turn in the path of the motorcycle?

A Because it's a, it's a, it's from here and here, it's far away. So far away. I got enough time to turn in. Yeah.

Q261 Yeah. Ah hmm.

A And also in the, in the, it's, it's ah .... it's everyone .... must be slowing down to fifty kilometre.

Q262 Is that because of the speed limit there?

A Yeah, it's a speed limit in there, so I think I got plenty, plenty of time. I turn in. I just turn in already here, just turn in, that's all. He just already down there. You can, you can count the, you can .... metre. .... more than hundred metre, I don't know, because I just ....

Q263 I will measure up that distance ---

A Yeah.

Q263 --- when I have more time tomorrow.

A Yeah. Yeah."

87 During the course of the ERISP, the investigating police had asked Mr Yang for his opinion on the cause of the collision. Mr Yang replied that he thought the motorcycle was travelling too fast, that is, in excess of 50 kph, and that the plaintiff had lost control of his motorcycle whilst travelling "at full speed": ERISP Q. 345. The term "full speed" was not further defined.

88 In assessing Mr Yang's evidence, his ERISP answers must be compared to his oral evidence in order to make an overall assessment of the reliability of his account of events. In that process, allowances must be made for the fact that he gave his oral evidence, some 5 years after the accident. It can also be assumed that having worked as a taxi driver in the meantime (T174.2), Mr Yang can be reasonably taken to have improved his ability to express himself in English.

89 When Mr Yang's contemporaneous ERISP account of the events of the accident are compared to the content of his oral evidence, some significantly telling variations and discrepancies emerged. In my view, this indicated that critical parts of Mr Yang's account of the relevant facts were based upon reconstruction rather than an actual recollection.

90 Before expressing a final view on that issue, I shall review the other eyewitness accounts in the paragraphs that follow.

Evidence of Ms Papadopoulos

91 Ms Papadopoulos was a front seat passenger in the defendant's taxi. Immediately before the collision, she had been talking to someone on her mobile telephone. As the taxi continued to travel east in Allen Street she realised that it was going to drive past North Street. As a result, she abruptly exclaimed, "Right here" to the defendant. She did so just as the taxi had just passed the entrance to North Street: T66.40 to T67.16.

92 In the ensuing events, she felt the taxi stop abruptly, and as a result she was thrown slightly forward in her seat: T67.19 to T67.24. She could not recall whether the taxi had then actually stopped, but at that time she was aware of the taxi making what she described as an abrupt right turn: T67.28.

93 At that time, she saw the plaintiff's motorcycle approaching from her left. She estimated that at that time, it was approximately 2 metres away from her. The collision between the taxi and the motorcycle then occurred: T67.37 to T 68.8.

94 On the evening of the accident Ms Papadopoulos gave a handwritten statement to the investigating police: Exhibit "1", p 144. Eleven days later, on 30 March 2008, she gave another statement to the investigating police: Exhibit "1", p 196.

95 During cross-examination, Ms Papadopoulos provided the following clarifications of her statements and of her evidence in chief:

• The journey in the taxi from Central to Leichhardt was of the order of 10 minutes. During that time, the defendant's driving had been unremarkable: T70.30 to T70.37;

• The expression she used immediately before the accident in requesting the defendant to turn right into North Street was to the effect "Oh, no, right". This was because she had earlier given him a conflicting direction to turn left: T70.16 to T70.25. Those differing instructions had apparently been given in relatively quick sequence: T70.19;

• She could not recall the pace of the approach of the plaintiff's motorcycle in the lead-up to the collision, and by the time she had seen the approach of the plaintiff's motorcycle, the taxi had already turned into North Street: T73.2 to T73.14;

• Although her statement given 11 days after the accident referred to her pre-accident observation of the plaintiff having sat up for an instant on his motorcycle and then the motorcycle started to wobble from side to side, at the hearing she could not recall this as having occurred: T73.49 to T74.5; T74.35;

• Given that she was talking on her mobile telephone at the time, and she was therefore distracted from making any accurate observations, and the effluxion of time, it is difficult to reliably reconcile these different positions in her evidence;

• She could not recall the pace of travel of the taxi before she called out to the driver to turn right, but up to that point there had been no reduction in the speed of the taxi, as distinct from the abrupt reduction in speed after she had called for the defendant to make a right turn: T76.10 to T76.25; T76.42;

• When she first became aware of the approach of the motorcycle, she was aware that it was making a loud noise and that the engine was revving: T77.4 to T77.30.

96 The police statements made by Ms Papadopoulos on 19 March 2008 and 30 March 2008 form part of Exhibit "1", at pages 144 to 148, and pages 196 to 198.

Evidence of Ms Bairle

97 Ms Bairle lived in the neighbourhood of the accident scene. At the time of the accident she had just left a nearby butcher's shop and was approaching her vehicle, which was parked in Allen Street. She marked the plan comprising Exhibit "C" with the symbol "X" to denote the position of her parked vehicle.

98 As Ms Bairle walked towards her vehicle, she heard the sound of the plaintiff's motorcycle approaching from her right. This caused her to look up from where she had previously been looking. In those events, she noticed the defendant's taxi then appear in her left peripheral vision, whereupon it "seemed to suddenly turn" right and in "the next instant [it] hit the motorbike": T53.8. I consider Ms Bairle was in a good position to make a reliable observation at that time.

99 Ms Bairle described the taxi as turning in front of the motorcycle, and in front of her own position on the footpath, which caused her to step back from the edge of the footpath: T62.8. She variously described the whole incident as having taken place first, in a matter of seconds, secondly, very quickly, and thirdly, in a second: T53.15 to T53.9; T60.43; T64.49.

100 Ms Bairle described her fluid motion of having looked up, seen the approaching motorcycle, seen the taxi come into her line of vision, and this was followed by a collision which occurred a split second later: T64.15; T65.2.

101 Ms Bairle then called the emergency services number. She described the event as a shocking accident that had stayed with her in her memory: T55.47. She showed visible signs of upset when she gave this evidence.

102 In cross-examination, Ms Bairle was taken to the content of a statement she had given to investigating police some 23 days after the accident, on 11 April 2008: Exhibit "1", pages 205 to 207. The effect of that cross-examination was to confirm her evidence in-chief, with the following points of emphasis:

• The acceleration noise of the motorcycle was loud: T56.40 to T56.47;

• She could not say whether the motorcycle was travelling in excess of the speed limit because she found it hard to make such judgments: T57.33;

• Her earlier statement to the investigating police to the effect that she thought the motorcycle "was travelling too fast for the circumstances" was a response based upon the police officer having earlier put to her that the scene was the subject of a 50 kph speed zone: T58.8 to T58.28;

• She considered that the taxi had made a wider turn into North Street than one would normally do: T61.41;

• She was unable to describe the speed of the taxi, and simply described it as appearing to just continue travelling on into North Street after the collision: T62.45;

• She described the position of the motorcycle as being about 6 houses from the corner of North and Allen Streets when she first saw it, which was about half-way between the Elswick Street roundabout and North Street: T63.41;

• According to her observations, at no stage during the approach of the motorcycle towards her, was the front wheel of the motorcycle a metre off the ground, or doing a wheelstand: T63.50 to T64.2; T65.16. This was in contrast to the evidence of Mr Cama.

103 The police statement made by Ms Bairle on 11 April 2008 forms part of Exhibit "1", at pages 205 to 207.

Evidence of Ms Lymberis

104 At the time of the accident Ms Lymberis lived nearby at 64 Allen Street. At that time she was in her the front room of her house, which meant she was located within a few metres from the footpath of Allen Street. The front door and window to the street was open at the time. She marked Exhibit "C" with a green rectangle to identify the position of her home in Allen Street.

105 From that vantage point Ms Lymberis described having heard the sound of a motorcycle accelerating and gear changing. She described the noise as very loud and coming from the direction of the Elswick Street roundabout: T208.5 to T208.36. She said that as the gears changed, the noise was becoming louder: T210.31. She became concerned at the noise and then she heard the sound of a collision: T215.27; T214.37. She initially said she had "guesstimated" the interval of time between when she first heard the motorcycle, to the time of the collision, as being roughly around 5 or 6 seconds: T215.18; T216.8.

106 That 5 or 6 second time estimate provided by Ms Lymberis became extended in the course of cross-examination. She conceded that the interval could have been 5 seconds, 6 seconds, 7 seconds then 6 seconds, and maybe 8 seconds, or possibly 10 seconds: T222.17 to T222.28.

107 After the collision, Ms Lymberis ran to the street where she saw that there had been a collision between the plaintiff's motorcycle and the defendant's taxi. She rendered assistance and waited for the police to arrive. On 30 March 2008, some 11 days later, she provided a formal statement to the investigating police. Aspects of that statement contained material that was not admissible, and therefore, parts of her statement were excluded from the evidence, as is identified in the transcript.

108 In re-examination, and then by further questions in chief asked by leave, when Ms Lymberis was asked how she had arrived at the initial 5 second estimate, she replied that when the investigating police officer asked her about that interval of time, her response of 5 seconds was predicated upon what she considered the interval of time to have probably been: T223.25. In further cross-examination on those questions asked by leave, Ms Lymberis acknowledged that the time she estimated when initially interviewed by the police was a "guesstimate" and that in her oral evidence she had "expanded on the guesstimate": T223.31 to T223.36.

109 The police statement made by Ms Lymberis on 30 March 2008 forms part of Exhibit "1", at pages 203 to 204.

Evidence of Mr Cama

110 Immediately before the collision, Mr Cama was walking towards his vehicle parked on the roadway outside 91 Allen Street. He marked Exhibit "C" with a red square to roughly represent the position of his vehicle at the time. As he was about to open the door of his vehicle he heard the sound of revving of the motorcycle: T225.21. At that time he was facing the house he had visited on the northern side of Elswick Street. The Elswick Street roundabout was on his left.

111 Mr Cama stated that when he heard the sound of revving he looked to his left and he saw the motorcycle approaching him and then pass him: T226.42. He formed the opinion that the motorcycle, which he said was accelerating, was travelling at a speed of what he "would say" was about 50 kph or 60 kph at the time the motorcycle had passed him: T228.15.

112 Mr Cama described seeing the plaintiff's motorcycle as having its front wheel momentarily raised about a metre off the road and then go back down onto the roadway at a point that was about 5 metres from where he was standing and observing: T231.5 to T231.19. He then turned to watch the motorcycle as it travelled away from him, and he then observed the revving and the noise continue as he continued his observation of the motorcycle: T231.24 to T231.44.

113 Mr Cama said he continued to watch the motorcycle after it had passed him. He said that as it passed him the motorcycle had continued to rev and he observed the handlebars to have been held in a way that to him indicated a turning of the throttle. It was not clear as to how he could have made that observation after the motorcycle had passed him, other than by way of a deduction he had made from the sound of the motorcycle and from watching it travel over a distance during a time interval he could not have accurately measured in the circumstances. In those circumstances, he formed the view that the motorcycle had been travelling at a rate that was quite fast: T229.21

114 In those events, Mr Cama saw the defendant's vehicle, which he did not immediately recognise to be a taxi, travelling from the opposite direction to the plaintiff, turn across the plaintiff's path in order to travel into North Street: T231.34 to T232.34.

115 Mr Cama estimated the distance separating the defendant's vehicle and the motorcycle at the commencement of the turn to be about 20 or 30 metres, which he qualified as being an imprecise estimate: T232.34 to T232.49; T233.20. He estimated the distance from where he had been standing to the point where the impact had occurred as being about 40 or 50 metres. His view of that scene was a downhill view: T233.7.

116 With those limitations, Mr Cama was asked to mark Exhibit "C" with a perpendicular red line to indicate approximately where the motorcycle was on Allen Street when the defendant's vehicle had commenced to turn across the eastbound lane of Allen Street: T235.15.

117 My impression of that exercise was that it included a degree of inherent and significant imprecision and factual reconstruction. This was because until the taxi had commenced to turn, Mr Cama had not noticed that vehicle on the roadway at all: T235.39. Whilst that may well be explained by the fact that he had no reason to notice the taxi because there were no untoward circumstances concerning the taxi until it had turned, this nevertheless remains a question to be considered.

118 Mr Cama described the events of the collision at T235.49 to T237.12, in the following terms:

"Q. Just tell us what you saw.

A. Well, the car crossed to go in North Street. The gentleman on the bike would have broke

OBJECTION.

CATSANOS

Q. Mr Cama, you've got a habit of saying "would have". What I want you to tell us is what you saw. Not what somebody would have done, just what you saw.

A. Okay. The car crossed to go in North Street. The gentleman on the bike was swaying - the bike was swaying from side to side, and at the time I could see an accident happening because the taxi was gradually turning into North Street, and the bike smashed into the passenger seat.

Q. You said - you described with your hand, moving your hand from left to right that the bike was moving from side to side. Prior to the car crossing onto the east bound lane, had the bike been moving from side to side?

A. No.

Q. How soon after you saw the car cross into the east bound lane did the bike start to move from side to side?

A. I'd say where I sort of marked there, about 20 metres away. 20, 30 metres.

Q. So you say the bike started moving from side to side at the point where you've marked on the diagram?

A. Yes."

119 Significantly, at that point, Mr Cama gave the following evidence as to his observation of the speed of the motorcycle:

"HIS HONOUR

Q. At that time was there any change in the speed of the bike?

A. Hard to say."

120 Mr Cama's evidence then continued as follows:

"CATSANOS

Q. So you saw the bike start moving from side to side. My earlier question was you'd seen the car move into the east bound lane.

A. Yes.

Q. The bike went from, I think you told us, from travelling a certain way to moving from side to side, and you said you could see an accident was

A. About to occur, yes.

Q. Can you tell us what, if anything, about the speed of the car turning?

A. Gradually. There was no urgency. Just a normal slow turn into North Street.

HIS HONOUR

Q. Was the turn part of a continuous movement of the car? Or had the car stopped before turning?

A. No, just continual.

CATSANOS

Q. You said the bike was moving from side to side. Did that continue to happen up until the point of impact?

A. Yes.

Q. After that happened, that is the impact, what if anything did you do?

A. I actually saw the accident happen. I saw the gentleman flip onto the car, land on the front of the car and then onto the ground. Then it was just mayhem. People running from everywhere screaming."

121 Mr Cama agreed that the accident had been an upsetting event for him. He gave a formal statement to the police some 13 days later, on 1 April 2008. Following a request to do so, some 5 months after the accident, he provided a further statement to the police on 5 August 2008: Exhibit "1", pages 199 and 202.

122 In his answers to questions asked of him in cross-examination, Mr Cama agreed that as a generality, it was very difficult to judge the speed of a vehicle that was moving away from the observer: T241.40.

123 Mr Cama agreed that he never saw a flashing indicator on the taxi before the collision: T243.16 to T243.40.

124 Mr Cama said the accident happened in the space of about 4 or 5 seconds: T243.34. It was not clear from his evidence as to whether that time was estimated to commence from the point of his sighting of the motorcycle, or from the point where he had turned to follow the motorcycle, or from the time when he estimated that the motorcycle and the vehicle were about 20 or 30 metres apart: T232.34 to T232.39. This suggests he could only have been observing it for a very short interval of time.

125 Mr Cama confirmed that the taxi had turned in a continuous movement without stopping during the turn. He expressed the view that if the vehicle had stopped, there was plenty of room for the motorcycle to continue on, and to pass the vehicle without a collision. Instead, the vehicle continued to make the turn until it had completely covered the eastbound lane in Allen Street: T244.19 to T244.23.

126 Mr Cama could not tell whether the motorcycle had braked whilst he was observing it travel the 50 metres or so from where he had been standing and to the point of impact: T244.35 to T245.4. All that he noticed was that the motorcycle had appeared to wobble from side to side at the time that the taxi had started to make its turn: T244.29.

127 The police statements made by Mr Cama on 1 April 2008 and 5 August 2008 form part of Exhibit "1", at pages 199 to 201, and page 202.

Evidence of Sgt Kraefft

128 Sgt Kraefft who was then a Leading Senior Constable investigated the accident in his capacity as senior crash investigator and accident reconstructionist with the Metropolitan Crash Investigation Unit. He attended the accident scene at 8:00pm on the evening in question. Other police had been in attendance earlier, and had taped off the area to preserve clues.

129 Sgt Kraefft took some photographs of the area that same evening and he made some spray paint marks on the road to denote the position of certain objects. He then returned the next day at around the same time the accident occurred on the previous day in order to take further perspective photographs, and to take some measurements.

130 He photographed the respective views of the roadway that the plaintiff and the defendant would have had as they approached each other: Exhibit "D" (defendant) and Exhibit "E" (plaintiff).

131 He also photographed a scuff mark that he saw present on the roadway. He deduced that it had been made by the motorcycle tyre at the time of the collision. That scuff mark was identified as a yellow rectangle on one of the photographs: Exhibit "1" p 247; T89.05.

132 He made some circular yellow markings on the roadway to identify the position of the front and rear wheels of the motorcycle where it came to rest after the collision (T89.25) as well as some perimeter lines to identify the position of the taxi when it had stopped: T89.44.

133 Initially, Sgt Kraefft said that when he had arrived at the scene the motorcycle was still on the roadway: T89.48. It subsequently transpired that the motorcycle had already been moved from its initial post-accident point of rest, by the time he had arrived: T106.7 to T106.26. It had sustained major damage, as had the taxi: T93.25 to T93.30. The motorcycle was lifted from the roadway after he had finished photographing the site: T91.3.

134 Sgt Kraefft described the accident scene as being subject to a 50 kph speed limit. He said it was an urban residential area that included a bus route, and one where it was expected that there would be a reasonable amount of pedestrian traffic given the location of some shops in the vicinity.

135 Sgt Kraefft's role was to conduct an investigation into how the accident had occurred. He directed his examination to the motorcycle's front portions, including the wheel and the forks, the frame, and the lights. He noted the wheels and the forks were bent, the light switch was in the "on" position, and the motorcycle was found with the gears engaged in second gear.

136 Sgt Kraefft measured the distance from the roundabout in Elswick Street to the point of impact in Allen Street to be 117.6m: T99.27. He recorded that measurement, and other measurements, on a drawing which was later replicated in the form of a plan which was tendered in different forms to allow for witness markings: Exhibits "C"; "3"; "4".

137 Sgt Kraefft took statements from the eyewitnesses and he undertook an ERISP interview with Mr Yang. That interview was conducted in the presence of a Mandarin Chinese interpreter who was called upon to assist with translations from time to time. The interview covered some 414 questions: Exhibit "1", pages 149 to 188.

138 Sgt Kraefft formed a number of opinions and conclusions during the course of his investigation. On grounds of fairness, those matters of opinion were admitted with qualifications as to their utility: T84.22; s 136 of the Evidence Act 1995.

Accident reconstruction by expert witnesses

139 On 5 November 2010 Mr Keramidas provided a liability analysis report for the defendant's solicitor. Subsequently, on 17 December 2012 Mr Schnerring provided a report to the plaintiff's solicitor. On 27 February 2013, Mr Keramidas provided a report in reply. In their reports, the experts expressed differing opinions on the liability issues.

140 On 24 September 2013, at the commencement of the hearing, a direction was made requiring the experts to confer with one another and to prepare a joint report stating the areas on which they agreed, the areas of remaining dispute and the reasons for dispute: UCPR r 31.25; Sch 7, cl 5.

141 It was unfortunate that the parties had not sought directions for this to occur earlier, when directions could have been sought at the preceding case management listings, as is required to be considered in the court's Standard Directions.

142 The experts met on the second day of the trial, 25 September 2013, and prepared a joint experts' report on the same date in accordance with the above direction. That report, which simplified the issues canvassed in the earlier reports, dealt with the following matters:

(1) The site layout and point of impact. The experts agreed with the geometric layout of the roadway and the likely point of impact as outlined by the investigating police;

(2) The speed of the plaintiff's motorcycle. The experts agreed that this speed should be determined from an assessment of the damage to the motorcycle (principally the rear-ward bending of the front forks and correlation of crush data from crash tests, assessing the damage to the alloy front wheel of the motorcycle) and pre-impact braking, based on estimates of braking distance and braking rates;

(3) The speed of the defendant's taxi. The experts were in general agreement that the speed of the taxi was between 10 kph and 20 kph. For the purposes of calculation, Mr Keramidas used a speed range of 15 kph to 20 kph, whereas for his calculations, Mr Schnerring used a speed range of 12 kph to 15 kph. I considered the difference to be immaterial;

(4) The time of impact. On the basis of the assumptions they employed, Mr Keramidas and Mr Schnerring each made calculations of the likely time that would have elapsed from when the taxi started to turn until the impact, and alternatively, when the taxi entered the eastbound lane of Allen Street. Those calculated estimates are summarised in the following table which interprets their evidence:

Table 1

Taxi	Keramidas	Schnerring
From start of turn by taxi	2.8 to 3.8 secs	2.8 to 3.5 secs
From entry of taxi into eastbound lane	1.8 to 2.4 secs	1.8 to 2.3 secs

(5) Position of the motorcycle. On the basis of Mr Keramidas' estimates of time to impact as set out in Table 1 above, and on the basis of different assumed impact speeds and allowing for braking distance, the experts made qualified calculations of estimates of the separation distance between the motorcycle and the taxi at the start of the turn by the taxi, and alternatively, from when the taxi had entered the eastbound lane of Allen Street. Those estimates are summarised in the following table.

Table 2

Position of motorcycle	Agreed opinion assuming 61kph	Agreed opinion assuming 83kph
From start of turn by taxi	About 47m to 64m away	Up to 88m away
From entry of taxi into eastbound lane	About 31m to 41m away	Up to 55m away

(6) Perception to reaction time. The experts expressed differing opinions on perception to reaction times because they had each adopted different assumptions concerning whether the plaintiff would have been likely to have been "covering the brakes" due to a perception that the taxi would have been seen by the plaintiff as a potential threat. Mr Keramidas used a "covering the brakes" assumption whereas Mr Schnerring did not agree that the plaintiff was necessarily in a position to "cover the brakes" due to the suddenness of the turn of the taxi. Mr Keramidas considered that the plaintiff could have reduced his reaction time by 0.4 seconds if he had covered the brakes. Mr Schnerring pointed out that concept applied to motor vehicles, whereas motorcycles have a different brake set-up, and a reduction of 0.1 seconds was possible. Mr Schnerring also pointed out that if the taxi had turned suddenly, the plaintiff may not have had sufficient observation time to cover the brakes. As a consequence, the experts expressed differing and qualified opinions on perception to reaction time, as set out in the following table.

Table 3

Perception to reaction time	Opinion	Qualifications
Keramidas	1.1 sec	Assumed 85th percentile and covering the brakes, reduced latency if taxi perceived as threat
Schnerring	1.2 to 1.3 sec	Keramidas' qualifications not adopted

(7) Gap acceptance. Assuming a motorcycle speed of 50 kph at the time the taxi started to turn, the experts identified their respective views on estimated gap times at 50 kph (using the assumptions identified in (5) above) as set out in the following table.

Table 4

Time	Distance
3.4 sec	47m
5.6 sec	78m
6.3 sec	88m

(8) Motorcycle rider crash avoidance. The experts prepared some calculations aimed at estimating what they described as motorcycle crash avoidance. The common assumption with those calculations was a motorcycle speed of 50kph, with scope for a variation to 55kph in one calculation. The variations within the calculations involved a range of perception to reaction times of 1.1 seconds, 1.2 seconds and 1.3 seconds, also in a range of braking rates varying from 0.75g to 0.85g. The following two tables summarise those calculations.

Table 5

Perception Time	Time	Perception/Reaction Distance	Braking Distance	Total Distance
Keramidas (0.85g/50kph)	1.1 sec	15.3m	11.5m	26.8m
Keramidas (0.85g/50kph)	1.2 sec	16.7m	11.5m	28.2m

Table 6

Perception Time	Time	Perception/Reaction Distance	Braking Distance	Total Distance
Schnerring (0.75g/50kph)	1.2 sec	16.7m	13.1m	29.8m
Schnerring (0.75g/55kph)	1.3 sec	19.9m	15.9m	35.85m

143 The oral evidence given by the experts concurrently provided clarification of their opinions for the purposes of resolving the liability issues. The experts explained that their views on the dynamics of the collision were arrived at by an examination of the significance of the physical evidence in conjunction with the published research literature on accident reconstruction. Significantly, given the ranges evident in their calculations they identified the fact that their calculations were necessarily susceptible to a range of tolerances.

144 In my view, the following propositions relevantly emerged from the expert evidence:

(1) The expert estimations of the speed of the plaintiff's motorcycle at the time of the collision was calculated from a range of data which resulted in reasoned compromise calculations based on a line of best fit with the available data: T253;

(2) The experts considered that the most useful evidence was the physical damage to the front of the motorcycle and to the door of the taxi: T261.40 to T261.45;

(3) Mr Schneering's process of estimation of the speed of the plaintiff's motorcycle based on the crushing of the front forks of the motorcycle, and the inward crushing of the rear door of the taxi. This led him to an estimated calculation of the speed of the motorcycle at 6 0kph: T259;

(4) In contrast, when Mr Keramidas undertook a similar exercise he reached a calculation of about 80 kph: T254.18;

(5) Within those estimates there were tolerances and margins for error and variation that could be the subject of legitimate allowances;

(6) Whereas in his report dated 27 February 2013, Mr Keramidas initially considered the upper limit of the speed of the motorcycle at 104 kph, and he then indicated that an estimate of 80 kph, which could be reduced down to 65kph by applying the tolerances previously referred to when considering the applicable research data: T255.49;

(7) In contrast, Mr Schnerring estimated that range of the speed of the plaintiff's motorcycle was between 58 kph to 65 kph: T253 to T254;

(8) Mr Keramidas considered that the minimum speed of the plaintiff's motor cycle should be considered to be 65 kph: T252.47;

(9) It seems that a tolerable compromise was reached by the experts as to a probable impact speed of about 65 kph, on the proviso that this should be understood to be subject to the margin of error identified in the evidence of the experts: T259;

(10) Given that the tail lights were found to have been operating on the motorcycle at the time of the collision, the experts were of the view that had the brake light come on at the rear of the motorcycle, it would have been readily distinguishable from the tail light and it would have been observable to someone in the position of Mr Cama if they were looking at the rear of the motorcycle: T289 to T290;

(11) The experts could not support Sgt Kraefft's conclusion that the plaintiff's motorcycle was braking harshly at the time of the collision: T288.1 to T288.10;

(12) The speed of the taxi during the turn to the right was relatively low: T284.9;

(13) Estimating the speed of the taxi is determined by its turning angle: T284;

(14) The motorcycle probably swerved before the collision, and this must be considered in the context of the phenomenon described in the evidence of the experts that there could have been target following or tracking, which influences the behaviour of the rider in approaching an impending collision: T298 to T300.

145 At one point in their evidence the experts determined that it was not possible to determine from the physical evidence that the motorcycle was braking at the time of the collision: T297.25. At another point the evidence the experts stated that there probably was some pre-impact braking, to which Mr Keramidas ascribed a high probability (T308.40 to T309.5) but that evidence was equivocal: T320 to T321.

146 That latter evidence must be read and reconciled in light of the evidence of Mr Cama, who did not see the brake lights come on. Furthermore, there was no evidence of any sound of tyres screeching as if under braking, and there were no tyre skid marks on the roadway from a wheel that was locked due to braking. It seems that if there was braking, it was not harsh braking as was assumed by Sgt Kraefft who did not have the qualifications for the more elaborate engineering analysis within the ken of Mr Schnerring and Mr Keramidas.

147 I now turn to consider the issues calling for decision.

Issue 1 - Resolution of disputed facts

148 The relevant areas of factual dispute that require resolution are first, the circumstances of the defendant's right turn across the path of the plaintiff's motorcycle, secondly, the speed and the manner in which the plaintiff rode his motorcycle to the point of collision, and an analysis of the opportunity that the plaintiff might have had for avoiding the collision that ensued.

Right turn by defendant

149 The defendant made a sudden turn to the right from Allen Street into North Street. He did so in circumstances that he had not beforehand anticipated. He was expecting to make a turn at the roundabout much further to the west along Allen Street.

150 The defendant's right turn was executed suddenly, without warning and without the display of a turning indicator light to warn traffic that was both following and ahead, of the defendant's intention to turn to the right at the intersection of North Street.

151 The reason the defendant's right turn was so sudden was that his passenger, Ms Papadopoulos, gave him a sudden and unexpected direction to turn right at North Street.

152 The suddenness of the instruction from Ms Papadopoulos, which was accompanied by words as well as gestures, occurred because she was pre-occupied with talking on her mobile telephone during the journey from Central Railway Station to Leichhardt. Beforehand, she had only advised the defendant of the suburb of her destination, and not the street address. As the defendant's taxi proceeded along Allen Street, she suddenly realised the need for the taxi to turn right, hence the sudden instruction for the defendant to turn at that point.

153 I find that in those circumstances, the defendant reacted instinctively and suddenly, by braking to a slower speed, probably around 10 kph - 20 kph, and he then started making a wide turn into the mouth of the intersection of North Street. That manoeuvre occupied his attention until he was well into his turn, at which time he then looked to the left, and he then saw the plaintiff's motorcycle approaching from the west, on a collision course.

154 I do not accept that the defendant saw the plaintiff before turning into North Street, and when he said that at an earlier point in time the plaintiff was at the roundabout some distance ahead to the west. I consider that the evidence from the defendant to that effect was an inaccurate self-exculpatory reconstruction that should not be relied upon.

155 I consider that any observations that Ms Papadopoulos said she made in those events was also unreliable reconstruction as she was distracted by attending to her conversation on her mobile telephone and also with giving the defendant the instruction to turn to the right. I do not accept her evidence as to her claimed observation of the plaintiff's motorcycle in the events leading to the point of the collision.

156 In coming to those findings, I have preferred and accepted the eyewitness accounts of Mr Cama and Ms Bairle. They are independent witnesses who were, from their respective vantage points, better placed to make the observations they described in their evidence, compared to the evidence of Ms Papadopoulos and the defendant. I find that each of those two persons resorted to an understandable, but nevertheless unreliable process of reconstruction, when giving their respective accounts of the events.

Speed, braking and swerving of motorcycle

157 On the question of the likely speed of the plaintiff's motorcycle, I find that the plaintiff was more probably than not travelling at about 65 kph at the time of the impact.

158 In coming to that view I note the terms of the concession made on behalf of the plaintiff to that effect. I consider that concession was properly made in light of the opinions of the experts to that effect.

159 In that regard, I have discounted a speed in the upper end of the range of 80 kph or more as suggested by Mr Keramidas because of the nature of the consensus reached by the experts and the scope within the opinions of the experts for a margin of variation.

160 I consider that the speed of 65 kph seemed to me to be the more reliable speed in that range as it was less affected by the scope for significant variation whereas the higher speed of 80 kph suggested by Mr Keramidas seemed to me to be a less safe assumption in view of the nature, extent and scope for the variations in speed estimates, which he acknowledged.

161 In coming to that view, I have not overlooked the issue of the motorcycle brakes being applied. Several matters need to be considered in that regard.

162 First, the evidence of Sgt Kraefft suggesting the motorcycle was subjected to harsh braking before the collision cannot be sustained on the expert evidence. Secondly, there is insufficient physical evidence in terms of marks on the road or signs on the tyres of the motorcycle to support a conclusion of significant braking. Thirdly, if there was any significant or sustained application of the brakes of the motorcycle, from his vantage point and given his other observations, I consider it would have been more probable than not that Mr Cama would have seen the operation of the brake light on the rear of the motorcycle.

163 In coming to those findings, I have accepted the opinions of the experts who considered that the scuff marks on the road and the tyre wear and striation marks were not indicative of the conclusions reached by Sgt Kraefft on the braking issue, as well as their joint opinion that the evidence does not permit a conclusion that there was significant or sustained braking on the part of the motorcycle.

164 Allowing for the possibility considered by the experts to the effect that there may have been a degree of braking, which Mr Cama may not have noticed because of possible intermittent feathering of the brakes, I consider the evidence of the plaintiff's motorcycle swerving should compel the conclusion that there was no significant braking of the motorcycle in the lead-up to the collision.

165 In arriving at that finding I have accepted the opinion of the experts to the effect that it was unlikely that there would have been braking and swerving at the same time. There is no evidence that the wheels of the motorcycle had become locked under braking, and there is no evidence of a sideways skid, suggesting that the swerve was as a result of steering an evasive course rather than a lack of control due to braking. Furthermore, the tyre marks on the rear passenger door of the taxi suggested to the experts that the front wheel of the motorcycle was turning at impact.

166 There is little doubt that the plaintiff's motorcycle swerved as it moved from the eastbound traffic lane of Allen Street into the bicycle lane. I consider this was due to the tracking phenomenon described in the expert evidence. It is also consistent with Mr Cama's evidence of the motorcycle swaying after the taxing turned: T236.10. At that time, no observable change in the speed of the motorcycle was observed: T236.30.

167 In those circumstances, it was unlikely that the speed of the motorcycle would have been significantly reduced from the moment the defendant commenced his turn to the right, and until the time of the impact. At that point, accepting Mr Cama's estimate as I do, the vehicles were separated by a distance of about 20 - 30 metres: T233.17.

168 Given the range of calculations by the experts as shown in Tables 1 - 6 above, after allowing for reaction time, I consider that there would not have been sufficient time available to the plaintiff for an effective application of the brakes to avoid a collision.

169 In that regard, I do not consider the broken brake lever on the motorcycle to be indicative of a strong application of the brakes. Instead, it seems more consistent with damage caused during the collision, as was the case with the broken alloy wheel.

170 I now turn to the issue of the alleged defence pursuant to s 54 of the CL Act.

Issue 2 - Defence claimed under s 54 of Civil Liability Act 2002

171 On behalf of the defendant it was submitted that the circumstances of the accident afforded the defendant the benefit of a defence based upon s 54 of the CL Act, which provides as follows:

"54 Criminals not to be awarded damages

(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:

(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and

(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).

Note: Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence.

(3) A "serious offence" is an offence punishable by imprisonment for 6 months or more.

(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981.

(5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned."

172 The question of whether the plaintiff's conduct in riding his motorcycle in excess of the applicable speed limit, justifies, or arguably supports a finding of a criminal offence, is a matter that is to be determined on the balance of probabilities. An assertion along those lines involves a level of gravity that required a commensurate level of satisfaction, but unlike in a criminal case, here, proof is on the balance of probabilities: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

173 The defendant in this case asserts that the serious offence committed by the plaintiff within the meaning of s 54(1)(a) of the CL Act is that of furious driving.

174 Furious driving is defined in s 53 of the Crimes Act 1900, as:

" s 53 Injuries by furious driving

Whosoever, at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for 2 years"

175 The defendant carries the burden of proving the allegation of furious driving: s 5E of the CL Act.

176 In his final submissions responding to the claim of an available defence pursuant to s 54 of the CL Act, Mr Lidden SC offered the following excoriation of the position taken by the defendant:

"The fact that the defendant made this turn and a collision ensued proves negligence. Negligence should have been admitted on the pleadings. For the defendant to escape liability an extraordinary high speed would have to be involved [on the part of the plaintiff] and there is no evidence of that here. The remarkable step by which the defendant has pleaded that the plaintiff was engaged in serious criminal misconduct should never have happened. Even at this late stage that plea should be withdrawn given the professional obligations of those appearing for the defendant."

177 I express no view on the conduct of those appearing for the defendant, but otherwise accept the general force of that submission. In my view, for the reasons that follow, the allegation of furious driving has not been made out on the balance of probabilities.

178 First, there are no relevant admissions by the plaintiff that assists the defendant on this issue. Secondly, the analysis in paragraphs [148] to [177] above proceeded upon the basis of weighing of the opinions of the eyewitnesses as to what they saw in the evidence on the balance of probabilities. Thirdly, a similar conclusion applies to the context of the expert opinions. Fourthly, whilst the findings on resolution of disputed matters of fact are to the effect that the plaintiff was more probably than not travelling in excess of the speed limit in the lead-up to the collision, that analysis falls far short of achieving the state of satisfaction required to sustain an allegation of furious driving on the part of the plaintiff in these proceedings: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

179 Accordingly, the defence sought to be relied upon pursuant to s 54 of the CL Act must be rejected. As foreshadowed, this leads to an evaluation of whether or not the defendant was negligent as alleged.

Issue 3 - Alleged negligence of the defendant

180 The circumstance that directly led to the plaintiff's injury was that the defendant made a right turn directly across the path of the plaintiff's motorcycle.

181 He did so, without adequately pausing to consider the safety of either himself, his passenger, or other road users, such as the plaintiff. His reaction to the request made by his passenger was to make a right turn into North Street at a speed of around 10 to 20 kph after reducing his speed from a higher speed, and without signalling his intention to turn.

182 I find that in those circumstances, his failure to stop and allow the plaintiff's motorcycle travelling in the opposite direction to pass before he turned, was negligent.

183 A collision between the front of the plaintiff's motorcycle and the rear left side passenger door of the defendant's taxi followed almost immediately after the taxi turned. The moment the defendant decided to make a right turn in those circumstances, the resulting collision was inevitable as the plaintiff continued on his slightly downhill journey without the defendant leaving him with an adequate opportunity to taking effective action to avoid the impending collision.

184 At that time, the defendant had a particular duty towards other road users to take reasonable care when changing the direction of travel of the vehicle he was driving. That duty included the obligation of applying reasonable attention to all that is happening on and near the roadway that may present as a source of danger. The duty of the defendant was not only to keep a proper lookout, but to also be aware of the presence of other road users including, to anticipate that other vehicles might be driven in an unpredictable manner, including negligently: Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228, at [11]-[12].

185 I find that the defendant ought to have seen the plaintiff approaching on his motorcycle and he should have therefore desisted from turning across the path of the plaintiff until the plaintiff's motorcycle ceased to pose a danger of potential collision.

186 Because of the relatively short distance separating the plaintiff's motorcycle and the defendant's vehicle travelling in opposite directions, at the moment before he decided to turn, the defendant ought to have realised that he was not in a good position to accurately gauge the speed of the plaintiff's motorcycle. This was yet another reason why he should not have attempted to turn at the time he did. Despite those circumstances, in reacting to the request to turn right, the defendant created the scene for an inevitable collision with the motorcycle because of the timing of his turn and the speed of the motorcycle.

187 The duty of the defendant extended to the requirement that he consider that other road users, in this case the plaintiff, might conduct themselves negligently: Manley v Alexander.

188 I find that the defendant was negligent in turning his vehicle. That finding is plainly required on the evidence and on the found facts without any more elaborate analysis.

189 I also find that but for the negligence of the defendant, the collision with the plaintiff's motorcycle would not have occurred as the defendant's vehicle would not have been on the plaintiff's side of the roadway.

190 I now turn to a consideration of the defence of alleged contributory negligence.

Issue 4 - Alleged contributory negligence

191 On behalf of the plaintiff it was submitted that on an acceptance of the fact that he was riding his motorcycle downhill in Allen Street at about 65 kph, a finding that was conceded to be one that was open on the evidence, there should nevertheless be no finding of contributory negligence in the circumstances of this case.

192 In contrast, the defendant argued that there should be a finding of contributory negligence and a consequential apportionment of the order of up to 100 per cent culpability on the part of the plaintiff. The defendant carries the onus of proof for those propositions: s 5E of the CL Act.

193 The defendant relied upon the following pleaded particulars of alleged contributory negligence that claimed the plaintiff had:

(a) driven at an extremely high speed in a suburban street with a speed limit of 50 kph, contrary to the Road Rules;

(b) driven at a speed which was excessive in the circumstances;

(c) failed to keep a proper lookout;

(d) failed to observe that the defendant had commenced a right hand turn ahead;

(e) so recklessly managed his motorcycle on the approach to the intersection that he was unable to stop or swerve to avoid a collision;

(f) failed to keep his motorcycle under any, or any proper control;

(g) failed to exercise reasonable care for his own safety, and the safety of other road users.

194 On behalf of the plaintiff it was submitted that in the event there was a finding that the plaintiff had been riding his motorcycle at a speed in excess of the speed limit at a speed of up to 65 kph, there should be no finding of contributory negligence against the plaintiff.

195 That argument was founded upon the series of cumulative propositions to the effect that a speed of 65 kph was safe in circumstances where the plaintiff was travelling on a wide suburban street, with a clear and uninterrupted view without intersections on his right, and only one intersection on his left, and where pedestrians and other vehicles appearing ahead could be easily seen.

196 I find myself quite unable to accept that argument.

197 Contrary to the argument put on behalf of the plaintiff, I consider that it was inherently and self-evidently negligent of the plaintiff to be riding his motorcycle in a suburban street at a speed of 65 kph in a 50 kph speed zone at 6:20pm on a weekday afternoon in summer daylight saving time.

198 That speed was 30 per cent over the signposted speed limit for the area.

199 It is no answer to that proposition to argue, as was put on behalf of the plaintiff, that there were no intersections to the right of the plaintiff's motorcycle as it travelled east towards where the defendant turned.

200 Just as the defendant was required to anticipate that other road users might behave in a negligent manner, the same applied to the plaintiff: Manley v Alexander.

201 The plaintiff was under a duty to anticipate the sudden appearance of obstacles in his path, whether this be as a result of a pedestrian or another vehicle assuming an unexpected position on the road ahead of him, whether due to the negligence of that person or otherwise.

202 By travelling at 65 kph, or 18.05 metres per second, instead of 50 kph, or 13.88 metres per second, a difference of just under 4 metres per second, the plaintiff substantially reduced his opportunity to avoid a collision.

203 The fact that the plaintiff was travelling at approximately 4 metres per second over the speed limit meant that if a random situation of a danger of collision presented itself, the plaintiff necessarily reduced the opportunity for avoiding action, on a number of levels.

204 Assuming for the purposes of argument, that reaction time was a neutral common factor in any given situation, the general proposition must be that the faster the speed a vehicle travels over a given distance, the shorter the time it takes to travel that distance.

205 Assuming that proposition, travelling at a lesser speed meant that when danger presented itself, there was greater scope to not only travel less distance over time, but there was greater scope for braking or taking avoiding action.

206 To illustrate the point, if it is assumed that the taxi was travelling at 10 kph at the time of impact, it would be travelling at 2.77 metres per second. If the speed of the taxi was 20 kph, that distance would have been 5.55 metres per second.

207 The significance of those illustrations is that the distance between where the front wheel of the motorcycle collided with the passenger side door of the taxi, that point appears to be only a few metres from the rear of the taxi.

208 It is therefore plain that at a lesser speed, the plaintiff could have had a better chance of either stopping before a collision, or recognising an opportunity to take different evasive action, such as a different direction for swerving. Alternatively, the taxi could have continued to move forward so as to clear the path of collision.

209 That analysis indicates that the contributory negligence of the plaintiff's speed of travel should be seen as having a causal influence on the accident that in fact occurred.

210 Having reached that conclusion, it becomes necessary to evaluate the just and equitable apportionment of the respective culpability of the parties: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529.

211 In my view travelling at a speed of 15 kph in excess of the speed limit, or 30 per cent higher than the speed limit, should be recognised as being contributory negligence of a high order. This is because the plaintiff's speed necessarily meant that he left himself with significantly less opportunity to utilise his post-reactions time opportunity to avoid having an accident.

212 In those circumstances, I consider it just and equitable that the plaintiff's culpability for his contributory negligence should be assessed at 25 per cent, which means that the defendant's culpability should be assessed at 75 per cent.

213 In the paragraphs that follow I set out my consideration of the evidence relating to damages before setting out my assessment of the plaintiff's entitlement to damages.

Issue 5 - Assessment of damages

214 After judgment was reserved the parties sent a note in agreed terms advising that the plaintiff's claim for damages for domestic assistance was no longer maintainable as the plaintiff is a participant the scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, which restricts his claim for damages to non-economic loss, economic loss, and out-of-pocket expenses that are not covered by that scheme: Daly v Theiring [2013] HCA 45.

215 In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages.

Plaintiff's probable life span

216 In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances.

217 At the hearing the plaintiff was aged almost 43 years, which indicates that he has a rounded down probable median statistical life span of a remaining 45 years. There is no evidence to indicate that the plaintiff's normal expectation of a working life to age 67 years would be curtailed. For the purposes of assessing future loss of earing capacity to age 67 years, the undiscounted 5 per cent multiplier for 24 years is 737.8.

Non-economic loss

218 On behalf of the plaintiff it was submitted that his damages for non-economic loss should be assessed at $400,000.

219 In contrast, on behalf of the defendant it was submitted that those damages should be assessed as being no more than $350,000.

220 In assessing this head of damage, I have had regard to my findings at paragraphs [38] to [39] concerning the plaintiff's injuries, and I have also had regard to the medical summaries set out between paragraphs [40] to [59] concerning the plaintiff's disabilities.

221 The plaintiff has acquired frontal lobe brain damage of the kind that has had a profoundly adverse effect on his life. It interferes with his enjoyment and the amenity of his life to a significant degree. His memory, cognition, and physical abilities are adversely affected. In those circumstances, I consider that the appropriate assessment for non-economic loss should be in the amount of $350,000.

222 I therefore assess the plaintiff's entitlement to damages for non-economic loss in the amount of $350,000.

Past economic loss

223 On behalf of the plaintiff, it was submitted that damages for past economic should be awarded at the rate of $2600 per week net.

224 The plaintiff's submission did not nominate a total sum claimed for past economic loss, but assuming the loss claimed accrues from the date of the accident on 19 March 2008 until the commencement of the trial on 24 September 2013, a period of 287 weeks, that claim is in effect revealed to be in the sum $746,200, although no actual calculation was submitted.

225 In contrast, on behalf of the defendant, it was submitted that damages for past economic loss should be assessed in the amount of $255,965. The defendant arrived at that sum by reference to an amount estimated by the expert accountant engaged by the defendant.

226 In my view, there are significant difficulties in the way of accepting the past economic loss submission made on behalf of the plaintiff.

227 This is because the plaintiff relies upon an analysis appearing within reports dated 7 December 2012 and 30 January 2013 prepared on behalf of the defendant by a forensic accountant, Mr Richard Ivey, of the firm WHK Ivey. Those reports contained an analysis of what, on any reasonable view, constituted only meagre and incomplete financial materials. As a consequence, the estimate within the Ivey report was based upon a great deal of speculation, and it included material that had little if any probative value, as well as containing unproven assumptions.

228 Those comments should not be understood to be a criticism of the defendant's legal advisors or the accountant whom they engaged. This is because the defendant was entitled to obtain a report from a forensic accountant on the available materials in order to obtain an understanding of the potential exposure of the defendant to economic damages in this case.

229 The defendant did just that, by briefing Mr Ivey with the economic loss materials, meagre as they are, that were served by the plaintiff in the proceedings.

230 It is relevant to set out the context of how Mr Ivey's reports were prepared. The solicitor for the defendant instructed Mr Ivey to analyse the plaintiff's economic loss claim. The documents provided to him for that purpose were identified in section 2.3 of the resultant report he prepared on 7 December 2012: Exhibit "5", Tab 5, p 66. Mr Ivey was later asked to review some further documents as listed in his supplementary report dated 30 January 2013: Exhibit "5", Tab 2, p 94 - p 95.

231 The documents referred to in the reports of Mr Ivey include assumed summaries of the plaintiff's income and expenditure for the financial years ending 2007 and 2008. Those documents were not separately attached to the report of Mr Ivey. That is not to be read as a criticism of Mr Ivey.

232 It remains unclear on the evidence as to whether those documents were the actual documents included in the bundle of documents tendered on behalf of the plaintiff.

233 Mr Ivey's second report makes reference to an economic loss report prepared by Fiona Bateman of Dolman Bateman, dated 8 December 2010. That report was not tendered by either party in the proceedings and there is no sound basis upon which to infer which party had commissioned that report.

234 The only economic loss materials relied upon by the plaintiff comprised a folder of papers compiled on behalf of the plaintiff: Exhibit "M". That folder was assembled by Ms Watson, a friend of the plaintiff with some experience in bookkeeping. The evidence was that out of kindness to the plaintiff, the content of the folder was assembled by Ms Watson through a process of sifting, sorting and filing papers found after the accident in a number of boxes located under the plaintiff's bed. The documents are said to be the plaintiff's business records.

235 The full business significance of those documents, and the schedules which were prepared on the basis of those documents by an unknown person, remains incompletely explained on the evidence, and leaves several matters unknown in several important respects, as is apparent from reviewing them and from Mr Ivey's commentary. Ms Watson had prepared some rudimentary schedules but those had been developed by someone who was not identified in the evidence. It was those latter schedules that were relied upon by the plaintiff.

236 At the outset of the consideration of the economic loss claim, due regard must be had to the manner in which the plaintiff conducted his business. After the accident, it fell to the plaintiff's brother, as his Private Financial Manager, to try and make some sense of the plaintiff's financial records. In doing so, in the context of an undated letter sent some time after 7 January 2009, the plaintiff's brother wrote to the Australian Taxation Office, making the following representations:

"...

Christian Hall did not keep accurate documentation or records.

The records that are available to me are extremely poor and are not accurate enough to supply records to the Taxation Department, very few receipts and banking records are available.

Some limited and inaccurate records are available for the financial year 2007-2008. Years prior become even more limited and inaccurate."

[Part of Exhibit "6" - Emphasis added].

237 From the description, the records considered by Mr Ivey appeared to have been in a better shape or form than the description represented to the ATO by the plaintiff's brother, as cited with emphasis added in the above extract quoted from the brother's letter that formed part of Exhibit "6".

238 Consequently, the past economic loss submission made on behalf of the plaintiff to the effect that his loss should be assessed at $2600 per week net was breathtakingly remarkable, given the sparse materials and the unproven and speculative assumptions upon which it was based, and also because it appeared to overlook the absence of the fundamental pre-requisite matters that needed to be proven in order to enable such a submission to have any persuasive force: s 5E of the CL Act.

239 The submission under present consideration was in the following terms:

"i. Approach 1. This involves accepting the defendant's report of WHK Ivey of 7 December 2012. Obviously the plaintiff's economic records are incomplete. There is nothing sinister about this. He was a poor record keeper and then the accident intervened. Indeed he was doing his best to get his records into order when the accident occurred. If the taxation office has taken no adverse stance against this position then neither should anyone else.

The Ivey report at page 68 contains a calculation of the plaintiff's probable business deposits for 2008 as being $433,508. This however is only for 8V2 months work. It is $51,000 gross per month or, over a 12 month period $612,011. There is no reason to take into account the 2007 income since 2008 was much higher.

Allowing (as the accountant suggests) 64% of that sum by way of expenses (page 74) this would leave the plaintiff with a taxable income of $220,324 or $4,237 gross per week. This easily exceeds the claim of $2,600 nett (sic) per week and the value of the claim is thereby proved. Incidentally, there is no reason to deduct 25% after averaging the income for 2007 and 2008 as the accountant has done in alternative 1 in respect to his report.

ii. Approach 2. It is quite obvious from the evidence of Mario Bonaccordo that the plaintiff would have derived an extremely high income from Pepe's had the accident not occurred. After all there seems to be about $1 million of work going on hand which would have gone to the plaintiff had the accident not intervened. The plaintiff apparently did about $800,000 worth of work over a period of 3 to 4 months for Pepe's (T351.01 to .09). Once again assuming that the plaintiff would have been able to perform valuable work during the period when Pepe's did not require him but at a significantly less remunerative rate the claim of $2,600 per week is easily achieved.

iii. Approach 3. This simply involves an analysis of this plaintiff's earning capacity in comparison with average weekly earners. Average weekly earners made between $1,286 gross and about $1,550 gross during the relevant period. It is probably fair enough to take somewhere around $1,050 nett (sic) per week as an average. The plaintiff's earning capacity was at least 2.5 times average weekly earnings before this accident it is submitted. Now it is agreed that there is none."

240 Before giving consideration to those submissions, as a preliminary matter, it is both convenient and relevant to identify the most likely circumstances of the plaintiff but for his injury: s 126 of the MAC Act.

241 Whilst the identification of those circumstances is mandatorily required as a precursor to any assessment of future economic loss, given the continuum of the respective claims for past and future economic loss in this case, I consider that as a useful starting point, it is relevant to identify those circumstances at this stage before making any assessment of future losses.

242 On reviewing the evidence, I find that the plaintiff's most likely circumstances but for his injury were as follows:

(1) The irregularity of the plaintiff's financial affairs, including his non-lodgement of income tax returns and GST compliance documents would necessarily have had an adverse and limiting impact on his economic situation and his earning capacity, irrespective of the accident;

(2) That position was unlikely to be improved upon because of the poor and inaccurate records kept by the plaintiff, and which was likely to have continued to be his practice;

(3) As the plaintiff's pre-accident business had it's inception in 2005 (Exhibit "A") this was an inauspicious method of operation of a relatively new business insofar as developing successfully and maintaining profitability;

(4) The plaintiff's ability to conduct his business affairs without an ABN because he was not a tax payer or registered for the GST would necessarily have had a limiting effect on his commercial life as a businessman. This is because he was in the business of supplying goods and services and he would necessarily have had to deal with other businesses concerning GST issues, whether those dealings were as a supplier or as a customer;

(5) Properly run businesses would be likely to encounter practical difficulties when dealing with a supplier or a provider of services who did not have an ABN;

(6) Against that background, it is likely that at least in the short term, the plaintiff would have, as best he could, continued to seek, accept, and carry out refrigeration work for industrial and other customers on the best terms available;

(7) The plaintiff's business was heavily reliant for its success on the continued goodwill of his principal client, Pepe's Ducks. That was a high risk business plan, if it was a plan, which suggests the plaintiff's opportunities to seek out other work, at least in the short term, were limited. The scope for expansion of the business Pepe's Ducks must have had some limits, capital works were likely to be finite, as would have been the scope for maintenance and renewal works, and therefore the profits available to the plaintiff from such endeavours in respect of a single client. It seems unrealistic to suggest otherwise;

(8) At least in the short term, some of the plaintiff's work would have involved his business in supplying his services on a commercial basis, most probably profitably, for Pepes Ducks and other entities prepared to do business with him on the terms he was accustomed to offer, despite his irregular taxation affairs, of which they may or may not have known;

(9) The problems the plaintiff encountered with the Australian Tax Office after the accident, were likely to have arisen at some stage in the not too distant future in any event, most likely shortly after the accident, and this may well have had a significant limiting effect on the viability of the plaintiff's business;

(10) Irrespective of whether the plaintiff continued to operate his business under various entity names, he would have nevertheless retained his capacity to market his skills and labour in the commercial refrigeration market, at competitive rates of remuneration;

(11) There is no evidence to reasonably suggest that at the time of the accident, the plaintiff was earning anything near the claimed average of $2600 per week net over a significant period of time. For a start, he was not paying tax and there was no objective or reliable method for identifying his net earning capacity.

243 In considering those circumstances, it is necessary to make some observations about the financial materials relied upon by the plaintiff and by Mr Ivey concerning the attempts to prove the claim made for economic loss. I shall refer to those materials shortly.

244 Before doing so, it is appropriate to return to a consideration of the past economic loss submission made on behalf of the plaintiff that is cited at paragraph [239] above. In that regard, I find myself quite unable to accept any quantitative aspect of that submission for the following reasons:

(1) There are no structured business records in the possession of the plaintiff or accessible on his behalf, that would enable any degree of confidence in the economic assumptions upon which the plaintiff's submissions were based;

(2) Those circumstances, taken together with the fact of non-lodgement of tax compliance documents casts significant doubt upon the medium to long term business efficacy of the plaintiff's business undertaking, and therefore, his ability to exploit his earning capacity for the purposes of deriving significant financial profits of the order that has been submitted on his behalf;

(3) The bank statements relied upon for the plaintiff's submissions were stated to be in the joint names of the plaintiff and Mr Richard Barnes. As the business deposits relied upon for the economic loss analysis were placed into that joint account, this suggests the business was operating as a partnership;

(4) Neither the plaintiff nor anyone else was able to satisfactorily explain the reason for the existence of that joint bank account. There is no evidence as to the plaintiff's entitlement to shares of profits in a working partnership. I have reservations about accepting what appears to me to be the somewhat glib explanation to the effect that the account description was in the form of an old former trading name of his business;

(5) There was no satisfactory evidence of the level of the plaintiff's business overheads, either in identifiable annual amounts for particular financial years, or as a more general percentage figure. Therefore, there was no reasonable way of testing the level of overheads or operating costs assumed by Mr Ivey as being at 64 per cent, to see whether this was reasonably applicable to the plaintiff's situation for the purposes of estimation of his taxable income and net losses;

(6) There is a real and unanswered question as to whether the plaintiff would have been able to continue to operate a profitable business for any significant length of time in circumstances where his inattention to tax compliance was a feature of his method of trading;

(7) Where the business of the plaintiff involved substantial purchases of materials for which GST was claimable, and the plaintiff had not lodged income tax returns that would have enabled him to obtain tax credits for his GST outlays, unless his clients invariably paid for materials and the GST on them, this would have had a significant adverse effect on the plaintiff's profits as a result of not being in a position to claim tax credits. The state of the evidence does not reasonably permit that assumption to be made, that the plaintiff's clients would be purchasing the materials in question;

(8) Witnesses who could have been expected to be able to throw some light on the plaintiff's business activities and give some evidence tending to show the profitability of that undertaking, were notably not called to give evidence, despite their availability for that purpose. Those witnesses included the plaintiff's father, his brother and a number of employees who were said to be in the precincts of the court during the hearing.

245 The plaintiff's submission was based on the proposition that his past loss of earnings should be assessed at the rate of $2600 per week net over the past 5.5 years between the date of the accident and the date of the commencement of the hearing.

246 In my view, in light of the state of the evidence concerning economic loss issues, and for the reasons that follow, the submission made on behalf of the plaintiff must be seen to be based on most unsound assumptions as there was no satisfactory record of the plaintiff's pre-accident income. I find that the evidence did not permit any reasoned conclusion as to the monetary level of the plaintiff's pre-injury earning capacity.

247 The correspondence between the plaintiff's brother and the ATO indicating that the plaintiff's financial records were not capable of reconstruction, and referring to the plaintiff's failure over years to keep proper records, and to lodge tax compliance documents, does not assist the plaintiff to discharge the onus of proving the elements required for a reasoned assessment of economic loss damages: s 5E of the CL Act.

248 Such financial records as exist, comprising some assembled receipts, some incomplete bank statements, and some attempt at analysis by an unidentified person, fall far short of providing a satisfactory basis for assessing the submitted claim for economic damages: Exhibit "M".

249 The tendered folder of materials comprising 423 pages was in 7 parts: Exhibit "M". No oral evidence was given in the proceedings to seek to explain these materials, apart from some limited evidence from Ms Watson of her attempts to sort papers found under the bed at the plaintiff's home after the accident.

250 Part 1 of those materials comprised copies of bank statements issued to R Barnes and CF Hall covering the period 4 March 2005 to 1 July 2006: Exhibit "M", p 1 - p 58.

251 Part 2 of those materials comprised another constructed schedule of income received in 2006 and 2007, along with some further copies of bank statements issued to R Barnes and CF Hall covering parts of the financial years ended 2007 and 2008: Exhibit "M", p 61 - p 147. That schedule was of unknown provenance.

252 Part 3 of those materials apparently comprised a schedule of income received in 2007 and 2008, together with some invoices issued by an entity described as Hall & Hall along with some further copies of bank statements issued to R Barnes and CF Hall covering the period 3 July 2007 to 19 May 2008: Exhibit "1", p 150 - p 222. That schedule was also of unknown provenance.

253 Part 4 of those materials comprised a schedule of income received in 2007 and 2008, together with some invoices issued by an entity described as Hall & Hall along with some further copies of bank statements issued to R Barnes and CF Hall covering parts of 2007 and 2008: Exhibit "1", p 224 - p 256. That schedule was also of unknown provenance.

254 Part 5 of those materials comprised a series of invoices variously addressed: Exhibit "1", p 258 - p 289.

255 Part 6 of those materials comprised a collection of invoices and requests for credit: Exhibit "1", p 291 - p 373.

256 Part 7 of those materials comprised some invoices variously addressed: Exhibit "1", p 375 - p 423.

257 That Exhibit, and the evidence of Ms Watson, established the basis for the draft spreadsheet as a starting point to an analysis of the plaintiff's financial affairs, and shows that his records were in an unbusinesslike state of disarray, were incomplete and of only very limited if any, probative value. They also represent a meagre, and in parts, unreliable foundation upon which to build a substantial claim for damages for economic loss in the terms that were submitted.

258 Mr Ivey has observed, correctly I find, that there is no evidence of a comprehensive review of the plaintiff's trading undertaken by an accountant; there were substantial deficiencies in the analysis relied upon by the plaintiff; the materials are incomplete and therefore of limited reliability; some of the matters relied upon by the plaintiff are either unsubstantiated or inaccurate; it is unsafe to assume the plaintiff would have maintained high levels of income once the Pepe's Ducks work was completed; it was likely the plaintiff's income would have declined after 2007 and 2008.

259 I accept Mr Ivey's commentaries as stated in his two reports. On behalf of the plaintiff, there was no effective answer to those comments. In my view, they stand in the path of any acceptance of the economic loss submissions made on behalf of the plaintiff.

260 Accordingly, I find that there was no reliable evidence showing the plaintiff's likely pre-injury level of income or earning capacity, whether it be gross or net. Furthermore, there was no useful historical evidence of the plaintiff's asset position before the accident, which might have provided some clues to his true pattern of earnings or his level of financial resources over time, and how they were derived.

261 The evidence called by the plaintiff from Mr Bonaccordo, which was to the effect that he had in the past, and would probably have again in the future, engaged the plaintiff to carry out significant refrigeration or air-conditioning work for his business known as Pepe's Ducks, was of limited utility, in the absence of contractual documents and financial statements.

262 At least that evidence supported the proposition that the plaintiff was skilled in his vocation, that he produced good work on large and difficult refrigeration and air-conditioning construction projects at competitive rates, and that he was efficient and apparently businesslike in his work, unlike the position evident from his business records.

263 Mr Bonaccordo described the plaintiff as having been paid large amounts in respect of such jobs, and he said that if he were not injured, he would have likely have been engaged in similar jobs for Mr Bonaccordo.

264 Whilst that evidence was relevant to an assessment of the plaintiff's earning capacity, it was of only very limited probative value as it was not accompanied by documentation of any kind, and as the payments for the jobs in question were for gross amounts that included labour as well as expensive plant, parts and materials. Most significantly, the evidence provided no useful insight into the degree of profitability of the plaintiff's pre-injury business activities or the likely profitability of his activities at the time of the accident.

265 The evidence of the structure of the plaintiff's business affairs was unreliable as his bank statements were in the name of what appeared to be a partnership entity with Mr Barnes, whereas his evidence was that he was a sole trader. Whilst it was understandable that the plaintiff had memory deficits due to his head injury, and therefore could not himself give such evidence, neither Mr Barnes, nor any other witness with knowledge of those matters was called to provide satisfactory explanatory evidence on such matters.

266 The plaintiff carries the onus of proving his economic loss claim: s 5E of the CL Act. For the reasons outlined above, I consider that there is a substantial shortfall between what is claimed and what can be reasonably accepted in the assessment of that claim.

267 That said, the fact that there is an evidentiary shortfall which creates difficulties for a reasoned assessment does not mean that the task of assessment should not be undertaken: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [71].

268 What is therefore required is the identification of a reasonable approach to assessment.

269 Given the paucity of reliable evidence concerning the level of the plaintiff's likely post-accident earnings, I propose to take the conservative approach that courts resort to from time to time where there is an absence of reliable proof of earning capacity, namely to use average weekly earnings as a background guide to the assessment process: State of NSW v Gee (aka Michaels) [2002] NSWCA 326, at [35]; Rosniak v GIO [1997] 41 NSWLR 608, at pages 621F, 622B-E, 628E.

270 In adopting that approach it is recognised that in other cases, the equation of average weekly earnings with lost earning capacity has been seen as problematic: Jovanovski v Billbergia Pty Ltd [2011] NSWCA 135. However, given that the plaintiff's business had only been operating since 2005, and given the absence of any sound evidentiary indications for adopting some other economic yardstick by which to measure the loss in this case, I consider the approach of using average weekly earnings is an appropriate method to adopt in the absence of proper business records being available for analysis.

271 Mr Ivey's report set out a number of assumptions for the estimation of the plaintiff's loss of income on a number of alternative scenarios, as at 10 December 2012. Whilst there is no doubt his calculations are correct, it must be remembered that there can be little confidence in the substantive assumptions underpinning those calculations due to inadequacies within the plaintiff's financial information. That is not a criticism of Mr Ivey, who attempted to undertake the task constructively.

272 In the circumstances of this case, I consider that a broader approach is required, based on AWE. Mr Ivey set out a summary of historical AWE rates at page 75 of Exhibit "5" for the period 2008 to 2013. Those figures are as follows:

2009     $1158 per week

2010     $1193 per week

2011     $1229 per week

2012     $1266 per week

2013     $1304 per week

Average: $1230 per week gross

273 After allowing for applicable tax and the Medicare Levy of 1.5 per cent, a gross weekly sum of $1230 equates to about $990 per week net.

274 I consider that in the circumstances, a broad average of $1000 per week net over the period to the date of the commencement of the hearing, represents a reasonable approach to the task of assessment of the plaintiff's past loss of income, as distinct from the speculative manner in which the plaintiff's submission of a loss $2600 per week was obtained.

275 The period from 19 March 2008 to 24 September 2013 is 287 weeks. A loss of an average of $1000 per week over 287 weeks is the equivalent of $287,000.

276 I consider that this sum requires some discounting to reflect the need to make allowances for past adverse vicissitudes because the loss in question is being ascribed to a business undertaking with uncertain long term prospects and profitability in the building sector, which is notoriously vulnerable to the rise and fall of economic tides, which must also include the impact of the past global financial crisis of recent years.

277 In those circumstances, I consider that the appropriate discount to allow for those factors is 10 per cent. In applying that factor to the figure of $287,000, this yields an amount of $258,300, which I propose to round up to $260,000. In the described circumstances, whilst this may not be seen to be generous compensation for past economic loss, given the absence of satisfactory proof, I nevertheless consider it to be fair and reasonable compensation.

278 I therefore assess the plaintiff's entitlement to damages for past economic loss in the amount of $260,000.

279 The evidence was that as a self-employed person, the plaintiff had not contributed to any superannuation fund for his retirement. Accordingly, there was no claim for either past or future loss of employer funded superannuation contributions: Exhibit "7".

Future economic loss

280 On behalf of the plaintiff it was submitted that his damages for future economic loss should be assessed by projecting a net loss of $2600 per week over 25 years to yield the sum of $1,959,360. After discounting that sum by 15 per cent for the impact of possible adverse vicissitudes, this revealed the sum of $1,665,456.

281 In my view, for the same reasons identified in my consideration of the claim for past economic loss as outlined above, the approach taken on behalf of the plaintiff was problematic because of the state of the plaintiff's financial records.

282 On behalf of the defendant it was submitted that this component of the claim should be assessed at the rate provided by net average weekly earnings, namely $940 per week net.

283 Although the evidence put forward on behalf of the plaintiff as to his earning capacity was deficient in many respects as already described, having regard to the evidence of Mr Bonaccordo, and the photographs of some of the plaintiff's work (Exhibits "K" and "L") I consider that some additional allowance is required in order to reflect the plaintiff's skill in his trade.

284 In view of my findings in respect of past economic loss, which also apply to the assessment of future economic loss, I consider that the plaintiff's future economic loss should be assessed in an amount slightly higher than AWE to reflect the level of the skills the plaintiff had, and to reflect the potential for him to deploy those skills at a rate that would possibly be higher than AWE. In that regard, I consider the appropriate amount for a projection should be in the sum of $1100 net per week.

285 Inherent in that conclusion is the rejection of the proposition advanced through the vocational capacity assessment opinion of Professor Pryor dated 19 November 2012. Contrary to the views expressed by that expert, I consider that as a result of his acquired brain injury, the plaintiff has no useful residual earning capacity capable of producing significant mitigatory earnings. In my view the assessment of the plaintiff's future economic loss should proceed on the basis that his earning capacity has been totally destroyed.

286 The projection of an amount of $1100 per week net at 5 per cent, not over 25 years but over 24 years of the plaintiff's remaining working life to age 67, (x 737.8), yields the amount of $811,580, which after discount by 15 per cent for vicissitudes, yields the sum of $689,843, which I round up to the buffer sum of $700,000: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536.

287 I therefore assess the plaintiff's entitlement to damages for future economic loss in the amount of $700,000.

Past out-of-pocket expenses

288 The parties ultimately reached agreement that the out-of-pocket expenses incurred by the plaintiff as a result of the accident, and which were payable before he entered into the lifetime care programme, were agreed in the sum of $827.15. I therefore assess the plaintiff's entitlement to damages for past out-of-pocket expenses in the amount of $827.15.

Summary of damages assessment

289 My assessment of the plaintiff's damages is summarised as follows:

(a) Non-economic loss	$350,000
(b) Past economic loss	$260,000
(c) Future economic loss	$700,000
(d) Past out-of-pocket expenses	$827.15
Total	$1,310,827.15

Disposition

290 The plaintiff is entitled to an apportioned judgment in his favour for 75 per cent of his damages assessed at $1,310,827.15, namely $983,120.32.

Costs

291 As the plaintiff has been successful in the proceedings, he should have all of his proper costs paid by the defendant on the ordinary basis, unless otherwise ordered.

Orders

292 I make the following orders:

(1) Finding that the defendant was negligent;

(2) Finding that there was contributory negligence on the part of the plaintiff;

(3) The respective culpabilities of the parties is apportioned at 75 per cent on the part of the defendant and 25 per cent on the part of the plaintiff;

(4) The plaintiff's damages are assessed in the sum of $1,310,827.15;

(5) After apportionment, verdict and judgment for the plaintiff in the apportioned amount of $983,120.32;

(6) The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered;

(7) The exhibits may be returned;

(8) Liberty to apply on 7 days notice if further orders are required.

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Decision last updated: 22 April 2014