Supreme Court
New South Wales
- Medium Neutral Citation:
- Egan v Mangarelli & Ors [2012] NSWSC 867
- Hearing dates:
- 22/11/2011, 23/11/2011, 24/11/2011, 25/11/2011, 28/11/2011, 29/11/2011, 30/11/2011, 1/12/11, 6/12/2011, 10/4/2012, 11/4/2012, 12/4/2012, 13/4/2012
- Decision date:
- 07 August 2012
- Jurisdiction:
- Common Law
- Before:
- HOEBEN J
- Decision:
-
Judgment for the defendants.
The plaintiff is to pay the defendants' costs of the proceedings.
- Catchwords:
- TORTS - negligence - motor vehicle accident - boy on bicycle crossing road - collision with bus - unreliability of plaintiff's version of how accident occurred - inability of expert evidence to fill factual gaps - inability of plaintiff to prove failure to keep proper lookout on part of bus driver - inability of plaintiff to prove breach of duty by bus driver in failing to apply emergency braking - causation - contributory negligence - damages - assessment on a contingency basis.
- Legislation Cited:
- Motor Accidents Compensation Act 1999
- Cases Cited:
-
Joslyn v Berryman & Anor [2003] HCA 34; 214 CLR 552
Luxton v Vines [1952] HCA 19; 85 CLR 352
Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; 59 ALJR 492 - Category:
- Principal judgment
- Parties:
-
Mitchell Joseph William Egan - Plaintiff
Johnny Carmine Mangarelli - First Defendant
Westbus Region 3 Pty Ltd - Second Defendant - Representation:
-
Counsel:
Mr H Marshall SC/Mr P Frame - Plaintiff
Mr DE Grieve QC/Mr TJ Clarke - Defendants
Solicitors:
Slater and Gordon Lawyers - Plaintiff
Vardanega Roberts Solicitors - Defendants
- File Number(s):
- 2010/126606
Judgment
1HIS HONOUR:
Nature of proceedings
On 1 July 2007 a collision took place between a bus owned by the second defendant, which was being driven by the first defendant, Mr Mangarelli, and the plaintiff. As a result of that collision, the plaintiff suffered brain damage and the loss of his right leg, which was amputated above the knee. The plaintiff said that he was commencing to cross Bunker Parade while straddling a bicycle when the collision occurred. The plaintiff said that Mr Mangarelli, and through him the second defendant, was negligent in failing to keep a proper lookout and in failing to apply the brakes on the bus in time.
2Liability and damages were both in issue. The matter occupied 13 hearing days - 22 November to 6 December 2011 and 10 - 13 April 2012.
Factual background
3Unless otherwise indicated, I find the facts to be as follows.
4The plaintiff was born in December 1990 and was aged 16 at the time. He is now 21. Shortly before the accident, the plaintiff and his friend, William Aslett, who was then aged 14, decided to ride their bicycles to Bonnyrigg Plaza in order to get some lunch. To get there, they rode along an unnamed laneway which started at a park some hundreds of metres back from Bunker Parade, a suburban street in Bonnyrigg. The laneway continued on the other side of Bunker Parade. The plaintiff and Mr Aslett were travelling in a generally westerly direction.
5At the intersection of the laneway with Bunker Parade, there is a cement ramp which allows wheeled vehicles to access the roadway without having to negotiate the cement kerb. At that point Bunker Parade runs in a generally north-south direction. The surface of the laneway and of Bunker Parade is asphaltic concrete. A footpath exists along both sides of Bunker Parade, including a sealed area at the bus stop where the bus stopped before the accident.
6There is a wooden fence on the north side of the laneway which effectively limits the view of persons in the laneway towards any bus located at the bus stop. It also limits the view of a bus driver at the bus stop towards the laneway. The distance from the fence line to the eastern kerb of Bunker Parade at the ramp was 6.7 metres. The width of Bunker Parade at that point was 11 metres. The accident occurred at approximately 12.12pm on Sunday, 1 July 2007.
7The bicycle on which the plaintiff was travelling was described in the police COPS report (exhibit AO p3) as follows:
"A racing bicycle, however it has a mountain bike tyre fitted to the front which is of smaller diameter than the bicycle was designed for. As such, the front brakes do not make contact with any part of the front wheel.
The rear brakes were tested and found to be functioning correctly. However, the tyre was completely bald."
8The bicycle did not appear to have sustained any substantial damage in the incident such as the distortion of its frame or wheel rims as would be consistent with having been driven over by the tyres of the bus. It was accepted that the position of the bicycle shown in police photographs taken following the accident, might not have been precisely where the bike was positioned following the accident. This was because the bike had been moved so that access could be gained to the plaintiff. The experts agreed, however, that the position of the bike shown in the police photographs was generally in accord with where they would have expected it to be.
9The bus was yellow-green in colour with a wide windscreen. The wheel base was approximately 6.4 metres and the width approximately 2.5 metres. The overall length of the bus was 12.5 metres and the front overhang to the commencement of the front wheels was 2.6 metres.
10It was the defendants' case that the accident could not have occurred in the way described by the plaintiff. In order to understand the factual issues which arose, it is necessary to set out the allegations in the Amended Statement of Claim and the relevant liability evidence.
Amended Statement of Claim
"7. On 1 July 2007 the plaintiff rode a certain bicycle west upon an unnamed laneway that transected Bunker Parade, Bonnyrigg in the State of New South Wales.
8. The plaintiff brought the bicycle to a stop at the eastern kerb of the said Bunker Parade.
9. At the same time the second defendant's bus, registration No MO 8337, was stopped at the bus stop a few metres to the north of the plaintiff's position.
10. The plaintiff, then straddling his bike, commenced to walk the bike in a westerly direction with the intention of crossing Bunker Parade and continuing upon the unnamed laneway.
11. At or shortly before the time that the plaintiff walked his bike onto the carriageway of Bunker Parade the first defendant suddenly and without warning pulled out from the kerb and proceeded south upon Bunker Parade and thereby brought his bus into collision with the plaintiff and/or the plaintiff's bicycle, knocking the plaintiff to the road surface and subsequently running over the plaintiff.
11A Alternatively, the plaintiff moved his bicycle from the pathway and footpath area onto the road surface at Bunker Parade after the first defendant had commenced to drive the said bus south from the bus stop, whereupon the said bus collided with the plaintiff and/or the plaintiff's bicycle, knocking him to the road surface and subsequently running over the plaintiff.
11B At all relevant times pleaded in paragraphs 8, 9, 10, 11 and 11A the plaintiff was clearly visible to the first defendant."
11In his evidentiary statement, dated 12 August 2011 (exhibit A), the plaintiff described the occurrence of the accident as follows:
"19 On 1 July 2007 at about 11.40am I was riding my bicycle with William Aslett. It was a hot day. We were going to get something to eat. I was wearing jeans and navy blue jumper.
20 William was riding his bicycle in front of me. We were riding down a lane towards Bunker Parade in Bonnyrigg. Bunker Parade is two lanes; one going north and one going south at this juncture. There is a bus stop on the north-eastern side of the laneway.
21 I rode down the alleyway, stopped and put both feet on the ground, straddling my bicycle. William was on the western side of Bunker Parade. He had already ridden across Bunker Parade.
22 When I was in that stationary position there was a yellow West Bus stationary at the bus stop just to the right of me. I don't know now whether the driver was letting people on or off the bus, but it was definitely stationary, so I decided to cross in front of it.
23 I was straddling the bike and had both feet on the road. I commenced to walk forward across Bunker Parade in front of the bus, with the bike still between my legs and the bus still stationary. Suddenly I head the roaring noise of an engine. I didn't have enough time to do anything to avoid the bus and it hit me. I went under the bus. I could feel myself rolling under the bus. I was going in and out of consciousness.
24 The bus continued on and finally stopped by which time I was under the bus beside the back wheels.
25 I do not recall hearing the sound of brakes. I do not recall hearing the sound of a horn prior to the bus hitting me."
12At trial the following evidence was given by the plaintiff. When assessing the evidence of the plaintiff, some allowance needs to be made for the brain damage which he suffered as a result of the accident.
"Q. And as you left, who was in front?
A. William Aslett.
Q. What sort of bike was he riding?
A. A mountain bike.
Q. And what sort of bike were you riding?
A. A mountain bike.
Q. Were you in a hurry?
A. No, not really.
Q. Now as you got near the ramp was William Aslett in front of you?
A. Yes.
Q. What was the distance?
A. Couple of metres.
Q. Couple of metres. Now as you approach the intersection with Bunker Parade and are riding towards it, on your right hand side there is a fence?
A. Yes.
Q. When you came out from behind the fence or just level with it, what were you able to see of Bunker Parade?
A. You could probably just see the road. I could see a bus approaching.
Q. What did Mr Aslett do as far as you could see?
A. He just kept going, kept going forward. I come to the gutter to a stop.
Q. And as you came to a stop, in the gutter, can you describe the gutter, the feature that you stopped on?
A. Not really. I just remember stopping, putting my feet down, coming to complete stop before I looked at the bus and thought I could go and I went." (T.25.41-26.23)
"Q. At any stage did you go off either the pathway or the ramp before you got onto the road?
A. I can't remember. I don't know.
Q. Did you ride on the grass, for example?
A. I'm pretty sure - I don't really know. I know I come to a stop. I can't remember like if it was on the grass. I remember I was on the footpath.
Q. All right. And you came to a stop. Why did you stop?
A. Because there was a bus stopped, stationed.
Q. When you were stopped, was the bus stopped?
A. Yes.
Q. What's the next thing you remember?
A. I remember having my feet down, straddling my feet, going across.
Q. Sorry, just say that again?
A. I had my feet down, straddling my feet down, starting to go across the road, I figured the bus would see me, he would give me way, because the bus is fairly wide and you couldn't see around it, so I was focusing, trying to poke my head to have a look around, but in a couple of seconds I heard a big roar. By the time I turned, I turned my head, I seen it.
Q. You are turning your head to your right?
A. Yes.
Q. Was that the side the bus was on?
A. The right. I heard a roar.
Q. You heard a roar. What was the roar from?
A. It was just a big loud engine.
Q. Sorry?
A. Big loud engine. I turned. When I turned to the right I seen it. My first reaction was to try to get out of its way. I swerved to the left on my bike, but I couldn't do much, because he was just there. As soon as I turned my head, he was there.
Q. You said you tried to get out of its way. Were you still on the bike, straddling at that point?
A. Yeah, yes.
....
Q. What did you do to try to get out of its way, do you remember?
A. I tried to turn the bike, but it wasn't going, like moving at all, because I was straddling my feet, I tried to move out of its way and turn and I kind of fell.
Q. Which way were you trying to turn?
A. To the left. When I seen I went, I lent that way.
Q. Away from the bus or towards the bus?
A. Away from it.
HIS HONOUR: Perhaps I should describe that. The witness had his head turned to the right, but was leaning his body to the left and moving his arms as though he is holding the handle bars of the bike and turning to the left away from the bus.
Q. When you heard the noise - it may be difficult to tell us, but could you try - what sort of time elapsed or passed between hearing the noise and the next thing that happened?
A. It was like seconds.
Q. Were you able to get out of the way?
A. I tried to.
Q. What happened?
A. I was hit. I went under.
Q. Do you remember what part of the bus hit you, or?
A. I think it was more to the right. Like, I'm not really sure, but I remember going under and I could just see black.
..." (T.26.45 - 28.29)
"Q. Now, at the time you started to straddle your bike or walk across the road on your bike, where was William Aslett, had you seen him?
A. I don't remember, but he would probably have been across - I don't remember. " (T.29.25)
"Q. You recall the accident very clearly, don't you?
A. Yes.
Q. You recall it as clearly as if it happened yesterday?
A. Yes. " (T.55.50 - 56.3)
"Q. I see. You are not sure whether you told Dr Harrison that the bus hadn't stopped when William darted across?
A. I'm not sure, but I know the bus was stopped as I was going.
...
A. As I told him I was going to the - when I was crossing the road I knew the bus was there, so I had to look, going across, I was getting ready to look around the bus to see if any traffic was coming, because I couldn't see around the bus when I was on the road. Before I could do that, the bus took off.
Q. Right. How far across the front of the bus had you got when the bus took off?
A. I'm not too sure of that. I was still on the right side. I can't really recall how far I was on the road, but I remember straddling my feet, just feet on the road, straddling my feet. I heard the noise and turned my head and it was just too quick, like, to know exactly where I was on the road.
...
Q. And how far do you think you were, short of getting to that point where you could see to the right of the bus?
A. Not far enough, I was still working my way to go across.
Q. You were in about the middle of the bus by the time you were hit or the bus took off?
A. I'm pretty sure I was more to the right.
Q. When you say the right, what do you mean?
A. When I'm looking more to the, to the bus door, where the bus door is, like when we're going across more, not over that way (witness indicated). Over where the bus door is, more to that side.
Q. You think you were on the nearside of the bus rather than in the middle of the bus, is that what you're saying?
A. I could have just been getting on the road. It's hard to - I'm pretty sure I was on the road. " (T.58.7, 26-59.8)
"Q. ... Now, you just told us a minute ago that you were pretty sure that you were on the road, but then you went on to say you don't know whether you were on the road?
A. I know, I don't know whether I was, the whole in the road, but I'm pretty sure most of my bike was on the road. I just got on the road as the bus had taken off. It was too late, by the time I've heard the bus, I've looked and I've turned and there was nothing I could do. I didn't get the chance, I knew I had to look around the bus before I crossed onto the next bit of the road, so I was ready to do that, but I didn't get the chance to even get to do that, because the bus took off too quickly and didn't look, didn't stop." (T.59.30)
"A. I don't know. All I remember is coming to a stop, seeing the bus approaching, coming to a bus stop. The bus stopped. Thinking that the bus had given way, I went across.
...
A. Yes, it was approaching.
Q. I see. So your evidence is, is it, that when you came down the laneway past the paling fence on your right-hand side you could see the bus approaching?
A. Approaching and as I got to the gutter he was stopping and I stopped.
...
Q. He was coming to the bus stop, was he?
A. When I was coming down, I was on the bike. I could see the bus was just pulling out, it is not far from where it is, was pulling in, I pulled there and stopped. It was a couple of metres away from me. I started to go and the bus started taking off virtually at the same time without looking and we collided." (T.60.37 - 61.15)
"A. ... More like I heard the sounds of its doors opening, yeah. I started to put my feet across, both feet on the road. I was going to walk it. By the time I got one foot off the pedal, and that's it. Swerved to the left, I went under.
Q. Do you say that you did see the doors of the bus open or not?
A. I said I heard, I heard the sound, you know, the shhh.
Q. Did you hear the doors close?
A. I don't remember that, no.
Q. But your recollection is that as you heard the doors opening you started off, is that right?
A. Yep. I, when the bus stopped, the doors open, it stopped. That is my first reaction is it's stopped, it has given me way to cross the road.
Q. So you went, is that right?
A. Yes.
Q. And you started walking across in front of the bus, is that right?
A. Yes.
Q. Now, can you tell us whether you were walking at a normal pace or quicker than normal or slower than normal?
A. Probably normal, bit slower than normal. Like, you get the bike off, to get on, like, I wasn't a risk taker, I was always careful. I was coming towards, you know, where the bus was. I got to make sure there is no traffic coming the other way.
Q. You weren't dawdling?
A. No.
Q. You were walking a bit slower than normal, is that right?
A. Yes, I wasn't dawdling." (T.61.35 - 62.18)
"Q. Your evidence is that you actually saw the bus stop?
A. I didn't assume it stopped, I saw it stopped. That is what give me the right to go. It was stopped, he was stationed." (T.63.23)
"Q. That it appeared to you that the bus had stopped?
A. No, the bus was stopped. It was station, it was stopped. It wasn't moving when I looked at it, it was completely stopped. I'm not going to go while the bus is moving, I'm not a f-wit." (T.64.47)
"Q. Do we understand that you told her that as you walked the bike across the road you recall seeing the bus in your face?
A. Well, no. When I heard the sound I turned to the right, I turned to the right, it was in my face. When I turned it was in my face because it was, it was there.
Q. How far away?
A. When I turned I swerved, I tried to swerve.
Q. You tried to swerve?
A. I can't recall, I can't recall. Too hard.
MARSHALL: May I just ask that that movement the plaintiff made be recorded?
HIS HONOUR: The same movement he made yesterday.
MARSHALL: Yes.
HIS HONOUR: He looks to the right and then he turns away, makes a gesture consistent with turning the handlebars of the bike away and turning to the left." (T.65.42 - 66.12)
"Q. And were you actually holding the handlebars of the bike as you fell over to the left, is that right?
A. Yes.
Q. And when you hit the ground were you still holding the handlebars of the bike?
A. I don't remember hitting the ground. I went straight under, just started rolling, seeing the light and then the blackness." (T.67.6)
"Q. Let me just ask you this question, Mr Egan: Were you in fact hit by the bus before you went under it or not?
A. I was hit - I was hit, then went under.
Q. And on what part of your body were you hit by the bus before you went under?
A. I can't recall, because I was on the side, so that I probably would have got hit by - my leg probably would have got hit first.
HIS HONOUR:
Q. Don't speculate, Mr Egan. Do you remember or not?
A. I don't really remember. " (T.73.14)
"Q. Now, going back, you recall I put to you the proposition as contained in this document "the plaintiff brought the bicycle to the stop on the south-eastern kerb of Bunker Parade"?
A. On the gutter, like, stopped, yes.
Q. "And at the same time the bus stopped at a bus stop a few metres to the north-east of the plaintiff's position"?
A. Yes.
Q. Do you accept that?
A. Yes.
Q. In other words, you say that as you stopped so, too, did the bus?
A. I stopped, the bus was coming to a stop so I was already stopped before the bus come to stop. It is just the way you are saying it, I'm not really understanding it because I speak it different.
Q. That's all right, Mr Egan. You say that you came to a stop and within a very short time to your observation the bus also came to a stop is that right?
A. Pretty much at the same time, probably, yeah. I'd say it is.
Q. Can we just clarify what we understand by the expression a very short time? When you came to a halt will you agree that the bus came to a halt within one or two seconds after you came to a halt?
A. Yes." T.104.28 - 105.2)
"Q. So now I just want to understand. The front wheel of your bike, was that past the mid point of the bus, the front of the front wheel?
A. I haven't got a clue, I wasn't looking at the wheel, where the wheel was. When I get, I turned to the bus, I wasn't looking to where the wheel was.
Q. You are not able to tell us one way or the other whether the front of the front wheel was past the mid point of the bus or not?
A. No, I'm not.
Q. That was at the point the bus immediately started to move?
A. I don't know where my wheel was, I wasn't focussing. I was crossing the road, I heard the noise, I turned to my left. I was looking at the bus, I wasn't looking at my wheel.
Q. So the four things that happened, namely the first, you coming to a stop. Secondly, the bus coming to a stop. Thirdly, the bus starting to move and fourthly the bus hitting you all occurred within the space of a few seconds?
A. Probably, could have. I don't know exactly the rough time it was but it happened pretty quick." (T.105.25)
"Q. And you were walking slowly but not dawdling?
A. No, not dawdling. Just, yeah, doing the normal thing, walking the bike, my feet on the ground.
...
Q. Tell us this, how is it that you knew that the bus came to a halt?
A. I seen the bus stop. Then once the bus come to a stop, I got ready to go, looked straight ahead once it was stopped. I heard, I heard the doors open but I didn't look to see if anyone got out and by the time I was on the road he was moving, the bus.
Q. When you started to move, that is immediately after the bus had stopped, where was William Aslett?
A. I can't remember, I wasn't, I wasn't like paying, I was paying attention to myself, worried about myself.
Q. Isn't it your recollection that he had already got to the other side of the road?
A. He was already on the other side but I wasn't watching him, I know he was already gone past.
Q. He was already over the other side when you started to move?
A. I didn't see him over the other side but he would have been because he was in front of me. I was stopped at that place and he wasn't stopped, he kept going." (T.106.3 - .30)
"Q. And it would be quite wrong to say, would it, that when you first saw the bus as you emerged past the fence, it was moving and it kept moving as you attempted to go across the road in front of it?
A. No.
Q. You would reject that all together, would you?
A. Yeah, it stopped, I know it stopped. I seen with my own eyes it stopped. I stopped. I put my legs down to walk, because he was stopped, thinking it's a big window, the bus would see a person on a bike in front of him.
Q. And you say that it was within a couple of seconds of your starting to walk your bike out in front of the bus that you first heard the engine of the bus ignite?
A. As I started to get on the road, the roar.
Q. And you immediately turned your head in the direction of the bus?
A. Yes." (T.113.6 - .22)
"Q. Are you saying that Aslett was travelling faster than you, or at the same speed?
A. No, I said he was travelling faster than me, that's why he was in front.
Q. How much faster?
A. I don't know. I don't know. He was in front a couple of metres. That's all I know.
Q. Is it your evidence that as you went down the laneway from the very beginning to Bunker Parade, he was progressively getting further and further in front of you, because he was travelling faster than you?
A. Yeah, he was travelling faster, yes.
Q. And does that mean that he was progressively getting further and further in front of you--
A. Not like you're saying. He was a couple of metres in front--
...
A. He was a couple of metres in front the whole the time. I stayed at one stage, he stayed at one speed, but he was a couple of metres in front. He went across. I seen the bus coming. I come to a stop. I stopped. And that's what I assumed he was across the road, because I seen him go across. I didn't see him stop at the end of the other side, but I know he went across, because I come to stop and he was beside me. " (T.116.6 - .34)
"A. That's what I'm trying to say, he didn't keep getting further and further away. He pulled ahead a couple of metres and that's it. It wasn't like he kept pulling and pulling and pulling. Do you know what I mean?
...
Q. And do we take it from what you've said, that as you reached the position shown in the photograph marked 9 for identification, which you have before you, you've got another copy of it, he was only a couple of metres ahead of you?
A. Yeah. Three or four metres, something like that." (T.118. -.13)
13Mr Aslett was not able to provide much evidence as to how the accident occurred since he did not see it. He said that when he emerged from behind the fence he observed the bus to be stopped and saw a passenger getting onto the bus. Mr Aslett then rode his bicycle across the road in front of the bus.
14Mr Aslett provided a statement on 19 August 2011 (exhibit F). In that statement he said:
"6. ... We rode down the alleyway towards Bunker Parade.
7. Mitchell was somewhere behind me. As I got to the fence line of the house at the corner of the alleyway in Bunker Parade I slowed down. I could see the bus stationary at the bus stop just to the right of where the alleyway emerges from between the houses. I could see that there was a Chinese man getting onto the bus.
8. I'm absolutely sure that the bus was stationary. I glanced around and I could see that Mitchell was a few metres behind me so I decided to proceed. I cycled out in front of the bus and looked around and could see a red car that was coming out of Reeves Crescent. I crossed over the road riding my bicycle and as I got to the footpath on the other side, I first heard the engine of the bus as it took off and shortly after that I heard a loud thump. I looked back and saw the bus still moving. The driver was looking at the outside rear vision mirror."
15In evidence at trial, he said:
"Q. And what did you see in relation to the bus?
A. I saw there was a passenger getting on.
Q. And did you see where Mitchell was at that time?
A. No, I didn't.
...
Q. Did you get across to the pathway on the other side?
A. Yes, yeah.
Q. Did you hear anything?
A. I just heard the bus engine and then just a noise, noises. A couple, yeah.
Q. What noises did you hear?
A. I can't explain them. It was like a bang and then some other noise, yeah.
Q. A bang and some other noises?
A. Yeah.
Q. What did you then do?
A. Turned around, dropped the bike and turned around.
Q. And what did you see of the bus? What did you see the bus doing, if anything?
A. Just slowing down to a stop." (T.79.2 - .32)
"Q. How far do you say Mitchell was behind you at that point, that is when you rode under tree 21?
A. I'm not sure. I'm not sure.
Q. Well, have you any idea at all?
A. I only looked back once.
Q. When was that? Where were you when you looked back?
A. I'm not sure.
Q. Have a look at the aerial photograph. You see you have got the oval, that's where you started and then you go down past tree 14 and then tree 15 or house 15 and tree 16. Where were you in relation to those markings when you looked back?
A. I can't remember.
...
Q. Your evidence, to the best of your recollection, is that it is some point on the way down the laneway you looked back and you saw Mitchell behind you?
A. Yes.
Q. And just tell us again, how far behind you was he at that point when you looked back?
A. Two, 3 metres, I'm not sure.
Q. Two or 3 metres. But you are not too sure about it?
A. Yeah, I'm not sure.
Q. Do you recall observing that he was travelling at the same speed as you, slower than you or faster than you or do you have no recollection?
A. No, I couldn't tell you. I don't remember." (T.86.15 -.50)
"Q. In paragraph 8 of your statement of 14 September 2010 you say "I glanced around and I could see that Mitchell was a few metres behind me so I decided to proceed." Now, was that statement, that part of your statement, was that accurate?
A. Yes.
Q. I see. You have not told us about that this morning though, have you?
A. No.
Q. And--
A. I told you at one stage that I looked back.
Q. But you have told us this morning that you were not able to recall when it was that you looked back?
A. Yeah, I don't know.
Q. But according to your statement, the second sentence of paragraph 8 that I read to you, you seem to suggest that when you made the statement you had a recollection of looking back as you passed the western edge of the fence. Is that right?
A. Possibly.
Q. But you don't really know whether you did or you didn't, is that right?
A. I know I looked once.
Q. But you don't know where it was that you looked?
A. No.
Q. Do I take it from that, that you don't suggest that you are now happy with that sentence, "I glanced around and I could see that Mitchell was a few metres behind me so I decided to proceed". You are no longer confident that that is a statement of your accurate recollection, is that it?
A. I'm confident I did look. I'm not sure exactly when it was." (T.90.33 - 91.15)
16Mr Aslett said that as he went past the bus he "slowed right down" to make sure there were no cars coming around the bus. He denied that the bus was moving when he rode in front of it.
17I have concluded that exhibit F is unreliable to the extent to which it asserts that before he commenced crossing Bunker Parade, Mr Aslett observed the plaintiff to be "a few metres behind me". I find that Mr Aslett's recollection is that at some point between them getting on the bicycles and him commencing to cross Bunker Parade, he did observe the plaintiff a few metres behind him, but that he has no recollection as to where on that journey this took place.
18An important witness in the plaintiff's case was Ms Luchˆt . She was interviewed by the police on 8 December 2007. The circumstances in which she came to be interviewed and a record of what she said is set out in the police COPS report (exhibit AO p10) as follows:
"At 1pm Saturday 8 December 2007 ... police speak with his aunt Tracy Egan ... Whilst speaking with Ms Egan she nominated another witness, Diana Luchˆt , as having seen the collision. Egan escorted police to the address where police spoke with Luchˆt .
Luchˆt stated "I'd been to the plaza. I was coming back through the alleyway towards the bus stop. One kid went across. The second kid was crossing but not riding. He was sort of straddling the bike. I looked at the driver. He was looking in his rear vision mirror the whole time. The bus started, moved off and went straight over the boy. I don't remember anything else."
19Ms Luchˆt provided a statement to the plaintiff's solicitors on 1 February 2008 (exhibit B). In that statement she said:
"9. I was approximately 6 metres from the western kerb of Bunker Parade.
10. I was walking slowly and looking ahead.
11. I noticed a Westbus had stopped at the "bus stop" and the bus was stationary.
12. I witnessed two children riding down the laneway towards Bunker Parade. This section of laneway runs parallel to Stroud Way.
13. The children were riding towards me.
14. The first child rode his bike out of the laneway and in front of the Westbus and crossed Bunker Parade.
15. The second child was close behind the first child but he actually stopped on the eastern side of Bunker Parade at the kerb.
16. The second child was positioned a few metres in front of the Westbus.
17. The second child was Mitchell Egan, a local boy.
18. Mitchell is a tall boy.
19. The Westbus was still stationary and Mitchell began to walk across Bunker Parade with the bicycle between his legs.
20. The bike was one of those smaller BMX type bikes.
21. Mitchell had straddled the bike between his legs and he walked the bike with the feet on the ground.
22. Mitchell was definitely not peddling the bike. I recall the events clearly.
23. Mitchell had nearly reached the centre of the bus.
24. I estimate that there was 1.5 to 2 metres space between Mitchell and the front of the Westbus.
25. I saw the driver look into the driver's side mirror and pull out from the kerb.
26. At no stage did the driver look forward and to the front of the bus before pulling out from the kerb.
27. The front of the bus knocked Mitchell down to the road.
28. I remember screaming and then I must have gone into shock.
29. The next thing I remember is reaching my front stairs to my home and vomiting. I don't know who ended up with my groceries which were left at the scene."
20She also made a statement on 28 September 2011 (exhibit C). That statement was as follows:
"7. I was walking in a generally easterly direction towards Bunker Parade and I was just a few metres from the western kerb - maybe six or eight metres, when I noted the Westbus stationary at the bus stop. At the same time I saw a boy on a bicycle come straight across from the laneway. He crossed Bunker Parade and went back into the pedestrian laneway on the other side riding towards me.
8. At the same time I noticed a boy on a second bike. He's almost stopped his bike and was straddling the bicycle with both feet on the ground and walking the bike to the eastern kerb alignment of Bunker Parade. As he got to the road the bus was still stationary and he started to walk the bike out into the road still straddling the bar. I remember the bike. It was red with curly handlebars.
9. The boy was quite tall. I did not recognise him at the time. I now know though I don't remember how I found out that the boy was Mitchell Egan. I had met Mitchell before but only briefly. He is a nephew of one of my neighbours, Tracy, and he was staying with her. He does not usually reside in the Bonnyrigg area.
10. I cannot remember with any precision how far the boy was away from the front of the bus when it started moving, though I estimate he was 1.5 - 2 metres away.
11. As the boy walked his bike onto the road the Westbus took off. I looked at the driver to see what he was doing and could see that he was peering into the mirror to his right on the outside of the bus. He just kept going forward quickly and peering into his mirror.
12. I am a 100 percent confident that Mitchell didn't ride his bike onto the road. He was definitely not peddling but walking the bike as he straddled it.
13. As the bus struck Mitchell I remember screaming and then I must have gone into shock.
14. My next recollection is sitting at home on the top step of the stairs leading to my house with a pool of vomit beside me. I never retrieved the week's groceries that I had with me when I witnessed the accident.
15. Some time after the accident, I think 3 - 4 months, although I can't remember exactly, a woman who I know as Mitchell's aunt named Tracy brought police to my home. I know Tracy because she lives across the paddock from my home in Bonnyrigg. I do not know Tracy socially and I'm not sure how she became aware that I witnessed the accident.
16. A female officer asked how well I remembered the accident because it had happened some time ago. I pointed to my head and conveyed that it felt like it happened 5 minutes ago. The accident is etched on my mind. The officer took a statement from me which I read and signed. I did not hear from the police again."
21The important parts of Ms Luchˆt 's evidence were:
"Q. She was heading east. Had you reached Bunker Parade yet?
A. No, I was approximately six to eight metres from Bunker Parade.
Q. Did you see something on the opposite side of the road?
A. A bus stationary at the bus stop.
Q. Just stopping you there. Did you stop or did you continue walking?
A. Oh, I continued walking.
Q. What is the next thing you saw?
A. A boy crossing the road on his pushbike, he was riding his pushbike across the road. Then I saw a second boy.
Q. Just before we get to the second boy, the boy you saw riding his pushbike across the road, did you see where he had come from?
A. He had come from the continuation of the laneway I was walking on.
Q. And did he pass behind the bus, in front of the bus?
A. In front.
Q. How far in front of the bus did he pass, are you able to tell us?
A. Oh, not exactly. I'd say a metre and a half, two metres.
Q. Right. At the point where he passed in front of the bus was the bus stationary or moving?
A. Stationary.
Q. Where did that first boy, what did he do?
A. He just rode across the road and I didn't pay any attention what he was doing after that.
Q. The second boy you mentioned, where did you see him when you first saw him?
A. He was behind the first boy. He came to Bunker Parade, stopped his bike, he straddled the bike. He started walking the bike across the road. He was maybe a metre and a half on to the road and I heard the bus motor. I looked at the bus, the driver was looking in the side mirror to the right-hand side and then I just heard the noise like a collision. I remember screaming and I don't know what.
Q. When you saw the boy, you said a metre or a metre and a half on to the roadway?
A. Yes.
Q. Was he moving?
A. He was straddling, he had straddled the bike. He was walking across in front of the bus.
Q. And what did you do after you saw this?
A. I wouldn't have the faintest idea. My next recollection of any sort of reality was sitting on my top step near the front door of my house and there was vomit all over the steps and I was just sitting there.
Q. Some three months later you spoke to police?
A. Yes.
Q. Can you tell us the circumstances how it was that you came to speak with the police?
A. A woman from the area that I found out since is the young boy's auntie, she was an acquaintance, she quite often went up my street going through to the Plaza for shopping and it was a hello, how are you. So that is how I knew her. I don't know how she knew that I had seen what happened but she came to me with the police and they asked me what happened.
Q. Had you spoken to anybody about this accident --
A. No.
Q. Please listen, between when you saw it and when the police came to speak to you?
A. No." (T.167.10-168.29)
"Q. May we take it from your evidence that you did not observe the bus driving or being driven in a southerly direction along Bunker Parade and coming to a halt at the bus stop?
A. No.
Q. Right. Now, you don't know how long it was that the bus had been at the bus stop, is that right?
A. No, no." (T.172.1)
"Q. At the point when the first boy passed you, where was the second boy?
A. He was near the kerb on Bunker Parade." (T.173.9)
"Q. Just concentrating for the moment if you would on the second boy, you have told us when you first saw him he was on the bike riding it in an easterly direction towards Bunker Parade, is that right?
A. He was coming from the east going west.
Q. Did you say that you saw him at some point come to a halt?
A. Yes, and he straddled his bike, put his feet on the floor.
Q. He got off the bike and put his feet on the ground, is that right?
A. Yes.
Q. How long was it from the time that you first saw him, that is to say when he was on the bike riding it, until he came to a halt and put his feet on the ground?
A. Not very long at all.
Q. A matter of 10 seconds?
A. Seconds.
Q. Well, would you say 10, 20?
A. I don't know, just a few seconds.
Q. From the moment that you first saw the second boy until he stopped his bike and put his feet on the ground was the bus stationary?
A. Yes.
Q. Did you observe any passenger or passengers get on or off the bus?
A. No.
Q. You could see the driver of the bus?
A. Yeah, the driver's on this side, the passengers get on on the other side.
Q. And you couldn't see, as it were, past the driver?
A. I wasn't looking.
Q. You say the second boy, having got off his bike and put his feet on the ground, did you observe him look at the bus?
A. No.
Q. As far as you could recall he was looking straight ahead, is that right?
A. No, I don't know, I didn't see where he was looking." (T.174.30 - 175.19)
"Q. My question is: Between that time and the time that the bus hit him, had he moved further across the front of the bus?
A. I don't know. I saw him, I looked straight at the bus as soon as I saw him where he was.
Q. Did you see the bus actually hit him?
A. No.
Q. You were looking straight at him when the bus started to move, weren't you?
A. As soon as I heard the bus take off I looked at the bus. I didn't--
Q. Not at him?
A. No, I wasn't looking at him, I was looking at the bus. Actually, the bus driver. His face was in that mirror (indicating).
Q. So you didn't see the bus hit the boy?
A. No. No, I heard.
Q. You heard it? And did you hear the bus hit the bike as well as the boy?
A. No, I heard the initial impact, I screamed and then hours later I am sitting on my front steps." (T.177.20 - .41)
22Evidence was given by Senior Constable Tiffany Duane who was one of the investigating officers following the accident. She had no recollection of seeing Ms Luchˆt at the accident site. She was one of the police officers who spoke with Ms Luchˆt in December 2007. She had initially attended the residence of the plaintiff's aunt Tracy in the belief that he was living with her at that time. Her evidence was:
"Q. When you arrived at Tracy's residence, did you have a discussion with her concerning the accident?
A. Yes, I did.
Q. What was she able to tell you about it?
A. She told me that there was somebody else who had witnessed the accident.
Q. Did she identify where that person lived?
A. Yes, she did.
Q. Did you then proceed in Tracy's company and in the company of the other officer to that person's place?
A. Yes, we did.
...
Q. But what did it appear to you to be the relationship between Tracy and Ms Luchˆt?
A. They knew each other.
Q. How far was Tracy's house from Ms Luchˆt's house?
A. About a hundred metres." (T.182.15 - 183.6)
23In relation to the COPS entry, exhibit AO, Constable Duane said:
"Q. Towards the foot of the document there is a passage that starts "Luchˆt stated"; do you see that?
A. Yes, I do.
Q. Is that the sum total of everything she said to you?
A. Yes, it is." (T.183.31)
24The driver of the bus, Mr Mangarelli, gave evidence. He said that the bus came to a halt just before the bus stop to the north of the laneway. It did so to allow a passenger to get onto the bus. The bus was already carrying two passengers. After the passenger had sat down, he said that he checked his offside mirror to make sure that there was no other traffic. He did observe a red car, but it had come to a halt behind the bus. He said he looked to the front and commenced to move the bus away from the kerb.
25Just as he started to move, he said that Mr Aslett came out of the laneway across the front of the bus to the other side of Bunker Parade. He said that he continued to drive the bus until one of the passengers screamed "Stop stop" at which time he felt a bump under the front wheels and shortly afterwards something hit the side of the bus. He said that at no time did he see the plaintiff or the plaintiff's bicycle. He said he brought the bus to a halt but did not apply the brakes in an emergency fashion.
26The day following the accident (2 July), Mr Mangarelli provided an electronically recorded interview for the police (exhibit D). The relevant parts of that interview are:
"Q. Can you just tell me what happened?
A. Okay what happened. I pulled up to the bus stop there in Bunker Parade. There was a passenger waiting for the bus, I pick him. After I pick up the passenger, I was ready to leave, I put the blinker and look on the back if there was any car coming, next moment this boy with a pushbike just went across in the front and he crossed the road. So and well then I just mentioned to the passenger, I said "silly that boy, you know, he could have got killed for what he just did" because the car behind, he stopped, usually they don't stop when you put a blinker to pull out. And the next moment, I started moving slowly to pull out from the kerb and as I move about a bus length, I hear a bang on the left side of the bus and the next moment, the passenger says "stop stop". So by the time he said "stop" and the time I stopped, actually stopped I hear something under the bus a noise and I stop. I opened the door, I went and had a look. I thought it could have been, I don't know, a bin, or something on the road and I noticed there was a boy under the bus, he was screaming for help. And straight away I realised the weight of the bus was on the top wheel so I run back inside the bus and I pushed the button to lift the bus up.
...
Q. And then on the other side of that, there's about 2 metres before you get to that laneway.
A. Yes and that's where the boy with the pushbike, he come through in front of me before I started moving out. It was just a moment before, wasn't really you know, because he wasn't going very very fast but he couldn't stop but he didn't have time to look left or right, the boy, he just went straight through. So I presume the boy went under the bus, he was to follow him because the other boy after he come and he started screaming "get my friend, out get my friend out, help my friend", he's saying, that's what he's saying.
...
Q. So that car had stopped, the boy had gone across and you started to pull out?
A. I started to pull out and I went about one bus length but before the bus length that's when I heard the bang and after it was just behind a bus length where I stop so he could have been a couple of metres before that I stop when the boy scream "stop stop", you know because I didn't know what was going on. If I knew it was a boy who hit the bus I would have went for the brakes straight away but because I didn't know what was going on it took me a fraction of a second to stop.
...
Q. You said, you did hear something hit the front of the bus is that right?
A. No hit at the front it's on the side, I felt bang first and the next moment I felt a roll underneath. That was in the time of the person that he screamed "stop stop stop".
27In his evidence at trial, Mr Mangarelli said:
"A. Yes, I started moving. I move 4, 5 metre, not even that. The next moment the boy with pushbike come in the front, he just went zoom straight across and I jump.
Q. How far away was that boy from the front of the bus to your observation?
A. He wouldn't be more than - reckon less than a metre.
Q. Did you apply the brake when you saw the boy ride his bike straight across the front of the bus?
A. No, I didn't apply the brakes, but I believe I released the accelerator. And the boy went across, as he went across I look in the mirror on the right side and in that moment I thought, you know, if the car--
...
Q. Why was it that you looked in the right wing mirror at that point?
A. Because the boy went across and he took my attention.
Q. Immediately after looking in the right wing mirror, where did you then look?
A. My eyes was still in the front to look at the road.
Q. After the boy had driven past the offside front of the bus, did you continue to drive the bus in a southerly direction?
A. Yes.
Q. At what speed was the bus travelling when the boy first rode his bike out in front of the bus, can you tell us?
A. I would believe about 15, maybe 20, not even that.
Q. Are you able to tell us your estimate of the speed at which the boy was riding the bike?
A. The boy would be at least 15 K.
Q. After he passed the right hand or offside front edge of the bus did you continue to drive the bus in a southerly direction?
A. Yes.
Q. Did you at that point observe any other vehicle, be it a motor car, a van, a lorry or a pushbike, anywhere within your vision ahead in Bunker Parade?
A. No.
Q. Did you observe any other person, other than the boy who had ridden his bike across in front of you --
A. No.
Q. --in the vicinity? Tell us then what next occurred to your observation?
A. Yes, I was travel about two bus length, about good 20 metre, next moment the passenger, he screams, "Stop, stop."
Q. Before the passenger screamed "stop stop", did you hear or feel anything unusual?
A. About the same time I felt a bump in the front under the wheels and at the same time, after, I felt on the side, something hit on the side of the bus. And I just - I pull up gently because there was nothing on the road. I didn't just brake all at once, and it took me a couple of metres to stop and I just bring the bus to stand still--
HIS HONOUR:
Q. Have I got the sequence correctly: There is the bump as the wheel goes over something and then there is a bump on the side?
A. Yes." (T.212.14 - 213.38)
"Q. When you moved forward, where were you looking then?
A. When I was looking forward I looking straight on the road. And next moment this pushbike come crossing in front of me and I believe reaction, I jump, I think I just remove the, the pedal from accelerator but I'm not sure on that. I usually do. But I was going very slowly." (T.218.14)
"Q. You saw the bike before you started to move in a southerly direction?
A. As I say, I was not sure if I was already starting or it was stationary and I don't recall either for sure hundred per cent what I said to the police." (T.222.11)
"Q. You did not see, forget the first bicycle then, you did not see Mr Egan's bicycle at any time before the bus hit it or Mr Egan?
A. No, because I was looking straight forward and at the same time I was looking in the right side mirror because the boy crossed, it took my attention.
Q. Did you see the first boy get to the western side of the road?
A. Yes.
Q. But you didn't stop your bus at that point?
A. No.
Q. Would you agree that you were travelling about 5 kilometres an hour?
A. A bit more.
Q. When Mr Aslett crossed? 5, 6, 7?
A. The bus, as it started moving, I would say at least 10 K.
Q. And at 10 K you could stop the bus within a couple of metres, couldn't you?
A. Yes. " (T.226.39-227.7)
"Q. When you say in your statement to the police "I heard a bang on the left-hand side of the bus"?
A. Yes.
Q. What did you think that was?
A. I didn't know because there was nothing there.
Q. Well, you didn't look, you have just agreed?
A. Well, as I said before, when I took off it was clear the road completely, so I do not expect to be nothing there so I could not say what it was that hit the bus. I only pull up - sorry.
Q. At the time you felt that bump, you didn't put your foot on the brake, did you?
A. No, I stop. I heard the bump after the passenger screamed "stop stop", so I do not brake straight away because there was nothing in the front and the road was clear, so I slow down just slowly normal.
"Q. My question to you is: When you heard a bang on the left-hand side of the bus, at that moment you didn't put your foot on the brake, did you?
A. I am not sure that." (T.227.28)
"Q. After the passenger said "stop stop", what did you do as far as braking is concerned?
A. I just stop. I didn't stop - how do you want to put it?
Q. Suddenly?
A. No, I didn't.
Q. What you mean to tell--
A. I slow down and I stop. It took me a couple of metres to stop.
Q. You slowed down gradually?
A. I slowed down gradually, I didn't stop rashly.
HIS HONOUR
Q. You didn't do an emergency stop?
A. No. " (T.228.31)
"Q. Did you look?
A. I was looking the boy and the front of the bus, so my vision on the left side it was a blank, but I was looking forward at the same time I was looking in the mirror at the boy that he went across the road. It took part of my attention.
Q. So you say your eyes were following the boy across to the western side of the roadway?
A. Now, when you look in the mirror you can see in the front and plus you can see on the side because--
Q. When you look at the rear wing mirror on the right-hand side you can see behind you?
A. You can see behind because I already pass the boy. The boy already cross--
Q. The boy has already passed, but you could see him to the western side of the roadway out of your peripheral vision?
A. So at that moment he kept my attention.
Q. At that point you didn't look to your left-hand side, did you?
A. No, I didn't. "(T.235.6)
"Q. Is there any particular reason as to why you stopped the bus gradually rather than suddenly?
A. I stop gradually because the road was clear, there was nobody there and there was no reason me to brake suddenly. If I knew the boy was there, of course I would have brake, I would have tried to avoid to go so far under the bus, whatever happened, but there was nobody there." (T.244.28)
28It was common ground that the passenger who called out "stop stop" was not the passenger who got onto the bus immediately before the accident. Mr Duong was the passenger who got onto the bus. He was available to give evidence, but neither side called him.
29A statement from Mr Duong was tendered in the plaintiff's case and became exhibit M. That statement was recorded in a police notebook on 3 July 2007. Relevantly, the statement recorded the following:
"5 The bus pulled up. I got on and paid the money. I got a ticket and I walked down to get a seat. I walked down to the first seat past where the fold up seats were on the side closest to the kerb. I noticed that there was another man sitting on the bus, he was further back on the same side of the bus.
6 I hadn't even sat down when I heard a thumping noise. Then the other man yelled out "stop the bus you hit someone".
7 I didn't know what he was talking about. I start looking around and I see the bicycle on the ground beside the bus."
30Mr Duong appears to be mistaken when he suggests that the other passenger was seated on the nearside of the bus. It is clear from the CCTV footage that the other passenger, who called out, was seated towards the rear of the bus on the offside of the bus, i.e. on the same side as the driver.
31The last source of evidence as to how the accident occurred came from the experts. Two experts were qualified - Mr Johnston, on behalf of the plaintiff, and Mr Bailey, on behalf of the defendants. Mr Johnston is a Civil and Mechanical Engineer with expertise in reconstructing motor vehicle accidents. Mr Bailey is a Mechanical Engineer, who also has expertise in the reconstruction of motor vehicle accidents. Mr Johnston provided reports dated 24 November 2008 (exhibit U), 24 October 2011 (exhibit V) and 15 December 2011 (exhibit AH). Mr Bailey provided reports dated 3 May 2011 (exhibit 3), and 13 March 2012 (exhibit 10). Both experts signed joint reports dated 24 November 2011 (exhibit 6) and 30 March 2012 (exhibit AJ). At the trial both experts gave evidence concurrently on 25 November 2011 and 10 and 12 April 2012.
32An important piece of evidence, which was not available to Mr Johnston when he prepared his first report, was CCTV footage recovered from the bus by the police. That footage showed the inside of the bus looking backwards from a location in front of and above the driver. From the point of view of the observer, the camera was positioned to the right of the driver.
33There were certain uncontroversial matters which the CCTV footage revealed. At 6.84 seconds after the bus moved off, the plaintiff's bike could be seen lying to the nearside of the bus with the offside handlebar of the bike on the roadway with both wheels on or next to the kerb. The bike could still be seen at 7.02 and 7.20 seconds after the bus commenced moving. It was clear from that footage that by that time the plaintiff had become separated from the bike. The camera operated so as to provide an image every .18 second.
34Mr Bailey prepared an analysis of the bus movements by reference to the street geography and set it out on a spreadsheet. Both experts accepted that Mr Bailey's analysis was accurate. Mr Bailey took 0 seconds as the start point for the movement of the bus.
35Useful information to emerge from that process was:
2.4 seconds - front of bus reached northern side of concrete ramp - 2 metres from start point.
4.32 seconds - northern edge of concrete ramp closely aligned with lower edge of door window - 6.2 metres from start.
5 seconds - front of bus passed southern side of concrete ramp - 8.4 metres from start.
5.22 seconds - southern edge of concrete ramp closely aligned with lower edge of door window - 9.1 metres from start point.
5.76 seconds - southern edge of concrete ramp closely aligned with rear edge of door window. Driver activates right blinker - 11.4 metres from start point.
6.20 seconds passenger turned head - 13.2 metres from start.
6.84 seconds - rear cycle wheel first visible in front door window - 16 metres from start.
7.2 - 7.38 seconds - driver depressed brake pedal which caused suspension seat to visibly rise, relative to the bulkhead behind him - 17.9 metres from start.
10.2 seconds - bus stopped - 23.9 metres from start.
36By reference to the location of human tissue on the road, and by reference to the CCTV footage, the experts agreed that the front nearside wheel of the bus probably passed over the plaintiff's leg at a distance of approximately 17.9 metres from the start point and after the bus had been moving for 7.2 seconds.
37A controversial part of the CCTV footage was the conclusion drawn by Mr Bailey that the movement of Mr Aslett across Bunker Parade could be seen.
38Mr Bailey explained his theory as follows. There was a signboard located behind the bus driver. At 2.34 seconds after the bus commenced moving, a white object (possibly a hat or shirt) was reflected on the signboard. This object remained visible in the next two frames at 2.52 and 2.70 seconds. Although the limitations of the technology prevented a person on a bike being clearly depicted, Mr Bailey concluded that this moving object was Mr Aslett.
39Mr Johnston agreed that the moving object could be Mr Aslett. He pointed out that the vague nature of the reflection meant that the distance to the object and its size were uncertain. He suggested that it might indicate another cyclist further down the road. He suggested that it might be a bird.
40I am satisfied that the moving object, which is reflected on the signboard, was Mr Aslett riding his bike across Bunker Parade. I have reached that conclusion, not only on the basis of my own observations of the CCTV footage and those of Mr Bailey, but also on the following evidence of Mr Bailey:
"GRIEVE: Mr Bailey, what are your reasons for coming to the conclusion that the object that we've been talking about was probably a bicycle being ridden across the path of a bus?
WITNESS BAILEY: I added to the information from the CCTV footage the statement of the driver that he saw a bicycle and that he looked at it and then if I go back, I'll just change the spec resolution, full screen, at least, that at the time, it appeared to me relevant that at the time we see the object at 2.34 to 2.7 seconds, that the driver appears to be with his head in a posture that's consistent with him maintaining a gaze towards where that object would be if it was William Aslett and if I had made the assumption that he was crossing from one side of the path to the other." (T.263.41 - 264.2)
41I took into account the following additional matters. When asked, none of the witnesses in the vicinity of the accident saw any other bikes except those being ridden by the plaintiff and Mr Aslett. On the assumption that the moving object was Mr Aslett, and that he was crossing Bunker Parade east to west to the continuation of the laneway on the other side of the road, the speed of the object was consistent with the speed of the bicycle rider observed by Mr Mangarelli.
42The bike ridden by the plaintiff was examined by Mr Bailey but not by Mr Johnston. Mr Bailey found no signs of damage on the bike, except some gouge marks on the offside handlebar. Specifically, there were no areas of yellow paint transfer, which could be associated with contact with the bus and there were no signs of an impact between the bus and the frame of the bicycle. Although there were various small marks and abrasions, consistent with the bike being used over an extended period of time, Mr Bailey noted that none of those marks appeared to be "freshly made". Mr Bailey inspected the wheel rims and did not find any localised areas of impact or heavy contact. The wheels appeared reasonably true in their movement.
43The following information was provided by the joint experts' report of 24 November 2011. On the assumption that the moving object was Mr Aslett, the estimate of his speed was in the range of 12 to 20 km/h. On the same assumption, the bus moved approximately 14.5 metres between the time when Mr Aslett cleared the path of the bus and when the rear wheel of the plaintiff's bike was first seen at 6.84 seconds. The bus would have been travelling at between 4 and 5 km/h at the time when Mr Aslett cleared its path and 17 km/h at 6.84 seconds, when the rear wheel of the plaintiff's bike was first seen in the CCTV footage. On the same assumption, the bus would have moved approximately 14 metres between the time when Mr Aslett was first seen on the CCTV footage and when the plaintiff's bike was first seen.
44In relation to where the plaintiff's leg was injured, the experts said:
"The plaintiff's leg was run over by the nearside front tyre of the bus at location approximately 7m south of the southern edge of the concrete ramp, however, the bus began to travel over the plaintiff sometime before his leg was run over. The front of the bus is approximately 2.6m in front of the location at which the tyre would start to engage with the plaintiff's leg therefore at the 7m location, the front of the bus would be located approximately 9.6m south of the southern edge of the concrete ramp. At which point the bus had travelled approximately 18m at an approximate time of 7.2 seconds after commencement."
45In relation to the plaintiff's direction of travel when he commenced to go under the bus, the experts said:
"To have entered the roadway via the eastern kerb, the plaintiff must have travelled with a westerly component of velocity. To have reached the location where his leg was run over, the plaintiff must have travelled with a southerly component of velocity. The experts have different opinions regarding potential scenarios that could have resulted in the physical evidence seen as outlined in their respective reports. The physical evidence does not indicate the plaintiff's speed."
46In relation to the movement of the bus, the experts agreed as follows. Between the time when Mr Aslett was first visible on the CCTV footage until it stopped, the bus travelled approximately 22 metres. Between the start point and when Mr Aslett was first visible on the CCTV footage, the bus travelled approximately 2m. Between the start point and when the driver was seen to rise from his seat, the bus travelled approximately 18m. The distance between the start point and the prolongation of the eastern lane across Bunker Road was approximately 6.7m. At 2.34 seconds, when Mr Aslett was first visible on the CCTV footage, the bus would have been approximately 4.7m from the prolongation of the eastern lane. Approximately 4.14 seconds elapsed from when Mr Aslett was last visible on the CCTV footage and when the plaintiff's bike first became visible. During that time, the bus would have travelled 13.5m. When the plaintiff's bike was first visible on CCTV footage, it was approximately 9.3m south of the centre of the concrete ramp.
Consideration of factual evidence
47The plaintiff submitted that his evidence should be accepted because it was corroborated in part by that of Mr Aslett and was fully corroborated by the evidence of Ms Luchˆt. The defendants submitted that the plaintiff's version of what happened was a deliberate fabrication on his part because he knew that if he told the truth, he would have no claim. The defendants submitted that the plaintiff may well have had his version of events accepted if it had not been for the CCTV evidence which he did not learn about until the receipt of Mr Bailey's first report.
48I am not prepared to find that the plaintiff deliberately set out to deceive the Court. I do find, however, that the plaintiff's evidence as to how the accident occurred is unreliable and should be rejected. It is not necessary for me to find a reason for that unreliability, although the plaintiff's brain damage and an understandable tendency, which most people have, to reconstruct events would provide a partial explanation.
49There is a conflict between the evidence of Mr Aslett and that of the plaintiff. Mr Aslett said that when he rode across Bunker Parade ahead of the plaintiff, the bus was already at the bus stop. He saw an Asian person getting on the bus. The plaintiff's evidence was that as he emerged from behind the fence line, he saw the bus arriving and that he heard the door of the bus opening. That evidence of the plaintiff cannot stand with the evidence of Mr Aslett, or the CCTV footage. Accordingly, I reject that evidence of the plaintiff.
50The plaintiff's evidence of having stopped at Bunker Parade, straddled the bike, walked onto the road and then being confronted with the bus suddenly starting up and colliding with him, is inconsistent with where the bike was first observed next to the bus and where the bus drove over his leg. The plaintiff's version of events is also inconsistent with the reflected movement on the signboard, which I have found to have been Mr Aslett. Both experts agreed that the objective evidence from the CCTV footage required not only some westerly movement by the plaintiff onto the road but some southerly movement. Such southerly movement was essential to explain how the plaintiff's leg was run over by the nearside front tyre of the bus at a location approximately 7 metres south of the southern edge of the concrete ramp.
51Mr Johnston accepted that proposition.
"GRIEVE: Mr Bailey has set out three matters on page 2 of the joint report, exhibit 6, which he says are simply inconsistent with the story as told in the statement of claim. You would agree with that, Mr Johnston, would you not, that those three factors are simply inconsistent with the story as set out in paragraphs 4 to 11 of the statement of claim.
WITNESS JOHNSTON: No, particularly point A. There is some evidence of potential contact between the bike and the bus, as identified by the police officer with some possible paint transfer. I can't say for certain it is but there is certainly a suggestion there is. And further, that the impact speed is so low, talking about walking speeds, that I don't necessarily anticipate damage to either the bike or the bus, depending on exactly what impact configuration occurred, particularly if the body took a substantial brunt of what is a very low speed impact between the two. Point B I probably agree with, it's factually correct, and we have both concluded that pure throw distance from the path is not sufficient to take the bike as far south of the bike and the boy, in particular as far south as we know he is subsequently run over, and that was his Honour's previous question. We both agree there was some movement, probably voluntary movement, in either scenario by the boy.
HIS HONOUR: To the south.
WITNESS JOHNSTON: To the south, and C really follows on from that in any event. I guess I agree with B and C but not A necessarily." (T.505.25 - .48)
52The three factors to which Mr Johnston was referring in his evidence were:
"(a) Examination of the site, bus and bike by police and clear photos of same fail to identify any evidence of contact between the bike and bus. Physical evidence would be anticipated if an impact had occurred before the plaintiff was on the roadway.
(b) The plaintiff's bike is first seen lying with its nearside (left side) facing upwards, and located on the eastern kerb to the side of the bus. This is not a compatible position or orientation following an impact that occurred per the description in the statement of claim.
(c) The location where the plaintiff's leg was run over is too far south to be consistent with an impact per the statement of claim."
53Mr Johnston made the same concession later in his evidence:
"GRIEVE: It goes on to say "there's a Westbus standing stationary at the bus stop in Bunker Parade. With the bus still stationary, our client proceeded to walk the bicycle out in front of the bus and across the road".
JOHNSTON: Yes.
GRIEVE: We know that in the light of the video, if the reflection shown in it as the bus was moving forward was that of Aslett, we know that the bus could not have been stationary when Mr Egan proceeded to walk the bicycle in front of it. Is that right?
JOHNSTON: I think that's probably correct.
GRIEVE: In that first report, shortly stated, you reached the conclusion that it was feasible that the accident did indeed occur in a manner described in the letter of instructions. Is that right?
JOHNSTON: Kind of, yes.
GRIEVE: And knowing as you now do that the letter was inaccurate in at least one respect, namely that the bus was stationary when the plaintiff proceeded to walk his bicycle onto the road, am I right in understanding that you no longer hold that opinion?
JOHNSTON: Yes." (T.642.16 - .40)
54Both in chief and under cross-examination, the plaintiff was definite that he did not turn away from the bus and move in a southerly direction. On the contrary, his evidence was that the bus came upon him so suddenly that he barely had time to move. He gave a demonstration on two occasions of what he tried to do. The demonstration consisted of turning the handlebars to the left, but not being able to move the bike in time to avoid the collision. That version of events simply cannot be reconciled with the limited objective evidence available, in particular the location of the bike when first seen in the CCTV footage and the place where the plaintiff's leg was run over. It is also inconsistent with the lack of damage to the bike. On the plaintiff's version of events, there would have to have been some deformation of the bike frame or wheels as the bus ran over it. The plaintiff's evidence on those issues is to be found at T.27.12 - 28.15 and T.65.41 - 66.12 and T.67.6. That evidence is extracted at [12] hereof.
55I have concluded that the plaintiff's evidence as to how the accident occurred cannot be accepted as reliable or accurate. Not only do I reject his evidence as to how the accident occurred, but I also reject his evidence as to the surrounding circumstances, i.e. that he was only 3 - 4 metres behind Mr Aslett when Mr Aslett commenced to cross Bunker Parade, that he stopped when he reached Bunker Parade and that as he moved onto Bunker Parade, he straddled the bike so that he was "walking" it across the road. I have rejected that evidence because it is not possible to know what evidence of the plaintiff as to how the accident occurred can be accepted as reliable.
56If, as I have concluded, the evidence of the plaintiff as to how the accident occurred has to be rejected as inconsistent with the only objective evidence available, the evidence of Ms Luchˆt as to how the accident occurred also has to be rejected. Her evidence fully supports the version of events given by the plaintiff and is for the same reasons, inconsistent with the only objective evidence which we have concerning the accident.
57Apart from that fundamental difficulty, there are other features of the evidence of Ms Luchˆt which have led me to reject her evidence as unreliable. In that regard, her demeanour when giving evidence was not impressive. She was quite uneasy and was needlessly defensive in some of her responses. Transcript 194.5 - .30 provides a good example of this.
58In her statement to the police on 8 December 2007 and in the statement of 1 February 2008 (exhibit B) Ms Luchˆt said that she saw the impact between the bus and the plaintiff. In the police statement she said "The bus started moved off and went straight over the boy". In exhibit B she said "The front of the bus knocked Mitchell down to the road". In the statement of 28 September 2011 she said:
"As the bus struck Mitchell I remember screaming and then I must have gone into shock".
59In her oral evidence, however, she denied actually seeing any impact between the bus and the plaintiff. Her evidence at trial on that issue was:
"I looked at the bus, the driver was looking in the side mirror to the right hand side and then I just heard the noise like a collision." (T.167.45)
"Q. Did you see the bus actually hit him?
A. No.
Q. You were looking straight at him when the bus started to move weren't you?
A. As soon as I heard the bus take off I looked at the bus. I didn't -
Q. Not at him?
A. No I wasn't looking at him I was looking at the bus, actually the bus driver. His face was in that mirror (indicating).
Q. So you didn't see the bus hit the boy?
A. No, no I heard.
Q. You heard it? And did you hear the bus hit the bike as well as the boy?
A. No. I heard the initial impact I screamed and then hours later I am sitting on my front step." (T.177.25 - .41)
60For the reasons already indicated in relation to the plaintiff's evidence, the description of how the accident occurred given by Ms Luchˆt cannot stand with the objective evidence, including the lack of damage to the bike. It is also not without significance that by saying that she did not see the accident in her oral evidence, Ms Luchˆt avoided cross-examination as to exactly how the bus impacted with the plaintiff and the bike.
61There was another internal inconsistency in her evidence. Ms Luchˆt said that she did not speak to anyone at the scene of the accident. She was definite that she did not tell anyone that she had witnessed the accident. Despite that denial, when the police interviewed the plaintiff's aunt, Tracy Egan, she told them that Ms Luchˆt had witnessed the accident and took the police officers to the home of Ms Luchˆt where they obtained the statement set out at [18] hereof. It was not explained how Tracy Egan learned that Ms Luchˆt had witnessed the accident. Tracy Egan did not give evidence and her failure to do so was not explained.
62The only way Tracy Egan could have known that Ms Luchˆt witnessed the accident would be if she was told by Ms Luchˆt or if Ms Luchˆt had told someone else who then passed that information onto Ms Egan. Clearly Ms Luchˆt's evidence that she had not told anyone that she witnessed the accident is incorrect and cannot be accepted.
63I infer that because Tracy Egan was prepared to take the police directly to the home of Ms Luchˆt that not only did Ms Egan know that Ms Luchˆt was saying that she had witnessed the accident, but she was aware that what Ms Luchˆt would say was likely to help the plaintiff. Such knowledge would explain why Ms Tracy Egan accompanied the police to the home of Ms Luchˆt, rather than simply referring them to that address. If that inference is correct, it indicates a further inconsistency in the evidence of Ms Luchˆt.
64Ms Luchˆt had a motive for assisting the plaintiff in his claim against the defendants. Ms Luchˆt has brought a claim for nervous shock against the defendants based on her observation of the accident. It is true, however, that at the time when she made her statement to the police, those proceedings had not been commenced.
65The plaintiff submitted that the evidence of Ms Luchˆt should be accepted because it referred to the driver looking into his side mirror at the time when the bus struck the plaintiff. The plaintiff submitted that this was consistent with the CCTV footage. I regard that fact as simply fortuitous. It was an essential part of the plaintiff's case as pleaded in the statement of claim, that the driver was not keeping a proper lookout. It was therefore necessary to explain how it was that the driver did not see the plaintiff, who on his version of events, was standing directly in front of the bus. That fact does not overcome the problems with the evidence of Ms Luchˆt.
66I do not accept the evidence of Ms Luchˆt as to how the accident occurred, nor as to the surrounding circumstances.
67The rejection of the plaintiff's evidence and that of Ms Luchˆt severely limits the factual findings which can be made. The experts were agreed that the front of the bus passed over the plaintiff in such a way that serious injury did not occur until the nearside front tyre went over his right leg. The bus clearly did not drive over the bike, or any part thereof. The experts were divided as to whether the front of the bus actually came in contact with the bike. Mr Johnston was of the opinion that it could have been a low speed impact between the front of the bus and the bike causing the plaintiff to fall in front of the bus and causing the bike to end up against the kerb with its wheels next to the kerb and with the offside handlebar resting on the road. Mr Bailey rejected such contact. His preferred theory was that as the plaintiff emerged from the lane, the bus was in front of him and he turned to the south in order to avoid it. In doing so, he fell off the bike in front of the bus, which would account for the position of the bike and the fact that it was undamaged. Mr Bailey was prepared to accept some contact between the bike and the nearside of the bus. (T.510.11)
68It is not possible to resolve the question of whether or not the bike came in contact with the front of the bus. Cogent reasons were put forward by both Mr Bailey and Mr Johnston in support of their positions. I am, however, firmly of the opinion that the red paint smudge on the front nearside corner of the bus is unlikely to have been the product of contact between the bus and the bike. Mr Bailey closely examined the bike, precisely for the purpose of determining whether any such contact had taken place and could not find evidence of it. He could not find any evidence of any yellow paint from the bus on any part of the bike. It is of significance that this part of the bus had suffered damage from other causes, clearly unrelated to the accident, which might well account for a smudge of red paint.
69The experts did agree on the following proposition:
"HIS HONOUR: Can I ask this? I'm mindful of the time and I want to see the last animation. You don't agree on the mechanism but both of you agree, do you not, that the plaintiff's bicycle and the plaintiff therefore, definitely have a southward movement, otherwise there is no explaining the actual point where the leg was clearly injured on the plan.
WITNESS JOHNSTON: Yes. I cannot speak for both but I understand that to be the case.
WITNESS BAILEY: Yes, it is.
HIS HONOUR: And it is a reasonably significant southward movement.
WITNESS BAILEY: Yes, it is.
WITNESS JOHNSTON: Time, distance or speed?
HIS HONOUR: Distance.
WITNESS JOHNSTON: We are only talking about eight metres altogether but yeah, it has to be a deliberate turn away from the bus in terms of avoiding it, yes." (T.500.46 - 501.17)
70The state of the evidence was such that Mr Johnston was not able to formulate a theory as to exactly how the plaintiff's accident occurred. He accepted that Mr Bailey's theory was consistent with the known evidence, but said that there were other scenarios which were also consistent with that evidence. On a number of occasions, Mr Johnston stressed the paucity of the available evidence.
"WITNESS JOHNSTON: I - there is no physical evidence of exactly what occurred. We only know where things ended up. My belief is he, after being redirected, couldn't stay on the bike and fell off, fell into the roadway and the bike fell to the kerb." (T.512.32)
"HIS HONOUR: ... Is it one of your scenarios, Mr Johnston, that that initial impact was sufficient to cause the separation between the plaintiff and the bike?
WITNESS JOHNSTON: It depends how far south that impact occurs. If he was impacted as he effectively emerged from the centre of the pathway, no. He - there has to be a component of southerly movement so the further south he voluntarily gets, I guess the less further south he needs to involuntarily get before the separation occurs, that we know occurred." (T.517.39)
"MARSHALL: So it is an unknown factor for how long he would have been visible to the driver of the bus?
WITNESS BAILEY: That is correct.
MARSHALL: And likewise with respect to Mr Egan, the speed at which he traversed that space between the fence line and the ramp is equally unknown isn't it?
WITNESS BAILEY: That is correct." (T.620.31)
"WITNESS JOHNSTON: Correct. We have a gap from the pathway to the point of impact which cannot be filled. We have both hypothesised how to fill that gap. Neither of us can say how we fill that gap. Mr Bailey prefers the fact there is no evidence the boy took himself there, I say the absence of evidence is consistent with a low speed impact and that is how he got there. But neither of us can point to a piece of evidence that can convince the other clearly, to fill that gap, and that gap is going to be there and that is where you are going to have to decide how to fill that gap."
...
"WITNESS BAILEY: I agree largely with that but point to two bits of evidence which is, which are the bike being seen at 6.84 seconds, 8 ½ metres down the road and the location where Egan is run over. The, the nature of that and the movement of the bike and the position of the bike, in other words lying on its right side and travelling south are strongly associated with the loss of control occurring down that end, rather than up the other end." (T.622.6)
"WITNESS JOHNSTON: Yes. I mean when the bike was seen and the leg's run over. We know those points and the path, that is the gap. From those points on we know. But there is that gap between the vision of the leg and the ramp." (T.622.44)
"WITNESS JOHNSTON: I agree that would be the case but it would also be accelerated along the roadway. Did it happen in this case? I have no idea. We can't fill the gap. We are hypothesising possibilities to fill the gap. Is it a possibility? Is it a probability? I can't even tell you that, probably not. We just don't know. We are trying to fill the gap and neither of us can fill the gap." (T.640.42)
71I have said nothing so far about Mr Mangarelli. There were two inconsistencies in the evidence which he gave at trial and what he told the police on the day following the accident. In his police statement he said that the bus had not started to move when he saw Mr Aslett ride across Bunker Parade in front of the bus. In his evidence he said that the bus was moving at that time. He explained that discrepancy by saying that having watched the CCTV footage, he now believed the bus had started to move at the time when Mr Aslett passed in front of it. For the reasons I have already set out, I accept that the bus was in motion at the time, although as the spreadsheet prepared by Mr Bailey made clear, the bus had not moved very far nor was it moving quickly.
72The other discrepancy is that in his police statement, Mr Mangarelli said that as he moved about a bus length:
"I hear a bang on the left side of the bus and the next moment the passenger says: "Stop stop". So by the time he said "stop" and the time I stopped, I actually stopped I hear something under the bus a noise and I stop".
73In his evidence at trial the sequence of events was different. Mr Mangarelli said that the passenger screamed, "stop stop" and at about the same time he felt a bump in front under the wheels and at the same time he felt something hit the side of the bus.
74I have concluded that the statement made on the day following the accident is more likely to be accurate in setting out the sequence of events, i.e. a bang on the left side of the bus followed by a passenger shouting "stop stop" and then feeling something under the bus. That sequence of events also fits more easily with the possible scenario of the plaintiff or the bike coming in contact with the side of the bus and then the bus passing over the plaintiff's leg.
75That sequence of events is also more consistent with the evidence of Mr Duong in exhibit M where he referred to hearing a thumping noise then one of the passengers shouting "stop the bus you hit someone".
76In relation to the movement of Mr Aslett in front of the bus, I have concluded that Mr Mangarelli's observation was reasonably accurate. If Mr Aslett did slow down, as he says he did, as he approached Bunker Parade, it was only a small reduction in speed. There is a ring of truth to Mr Mangarelli's statement to the police about the sudden appearance of Mr Aslett from the laneway, which is not consistent with Mr Aslett slowing down significantly as he approached Bunker Parade. Mr Mangarelli's estimate of 15 km/h as the speed at which Mr Aslett was travelling is consistent with the estimate of the experts made from the CCTV footage of between 12 and 20 km/h, i.e. an average of 16 km/h.
77It seems to me that the following facts can be said to have been established.
1. Shortly after 12 noon on 1 July 2007 the plaintiff and his friend, Mr Aslett, rode bicycles in a westerly direction down a laneway towards Bunker Parade.
2. At 12.09.12pm (according to the time recorded in the CCTV film) the bus driven by Mr Mangarelli, stopped at the bus stop on the eastern side of the road, some 5 metres to the north of a ramp where the laneway met Bunker Parade.
3. The bus remained stationary (to allow Mr Duong to enter it) for a period of approximately 17 seconds.
4. As Mr Aslett, who was in the lead, approached Bunker Parade the bus commenced to move away from the bus stop.
5. When the bus had travelled a distance of approximately 1.9 metres and was proceeding at a speed of about 5km/h Mr Aslett rode his bicycle across Bunker Parade in its path.
6. At this point the bus was some 3 metres from the northern edge of the ramp.
7. The rear wheel of the plaintiff's bicycle appears in the CCTV footage 6.84 seconds after the bus started to move (i.e. 8.4 metres south of the centre of the ramp or 13.1 metres from the position at which it was when Mr Aslett's reflection was first seen).
8. At that time the plaintiff was partly underneath the bus.
9. He was then 8.5 metres south of the centre of the ramp.
10. Before the bus came to rest, its nearside front wheel passed over the plaintiff's right leg, his body being beneath the bus.
78Some further findings can be deduced or inferred. I find that the bike at no time went underneath the bus, otherwise there would have been some deformation of the frame or the wheels. The position of the bike, as seen in the CCTV footage, and by reference to its final resting place, and the point on the road where the wheel of the bus went over the plaintiff's leg, indicate that the plaintiff had turned and moved to the south for some distance. The extent of that movement to the south is not known with estimates of between 1 and 5 metres given by the experts.
79I infer from the movement by the plaintiff to the south, that at the time when he emerged from behind the fence line, the bus was moving. Unless that inference is drawn, it is difficult to explain why the plaintiff would have moved some distance to the south, rather than simply followed Mr Aslett across the road.
80In contrast with the above matters, the following cannot be established from the evidence:
i. How far the plaintiff was behind Mr Aslett as Mr Aslett approached Bunker Parade.
ii. What speed the plaintiff was travelling at.
iii. Where the bus was at the time when the plaintiff emerged from behind the fence line onto that part of the laneway leading to the ramp and Bunker Parade.
iv. When was it that the plaintiff emerged from behind the fence line.
v. The movements of the plaintiff and the bike between when he emerged from behind the fence line until the bike was observed in the CCTV footage 6.84 seconds after the bus commenced moving.
vi. Whether, and if so where, was there any contact between the plaintiff and/or the bike and the bus between the plaintiff emerging from behind the fence line and the 6.84 second mark.
vii. The precise orientation of the plaintiff's body beneath the bus at the point when the nearside front wheel of the bus went over his right leg.
81As the evidence of the experts made clear, there are a number of scenarios which would account for the plaintiff moving from the laneway to where he ended up under the bus which are consistent with the known facts. At least one of those scenarios is consistent with there being no breach of duty on the part of the bus driver. There is at least one scenario which may be consistent with such breach of duty. Mr Bailey was definite that the evidence favoured his theory, which was consistent with there being no breach of duty on the part of Mr Mangarelli. Mr Johnston was not able to express a preference for any of the possible theories. He was of the opinion that because of the paucity of the evidence, one theory was as likely as another to explain what happened.
The plaintiff's case on negligence
82Once the plaintiff's version of how the accident occurred is rejected, it becomes very difficult for the plaintiff to establish negligence. The task becomes even more difficult if the plaintiff is unable to establish, on the balance of probabilities, how exactly the accident occurred. In that situation, what the plaintiff has to establish is that regardless of which scenario is available to explain the accident, Mr Mangarelli and therefore the defendants, would be liable in negligence.
83Fundamental to the plaintiff's case is the proposition that Mr Mangarelli was not keeping a proper lookout. The plaintiff referred to the distance between the fence line and Bunker Parade and submitted that for the plaintiff to have ended up underneath the bus, he must have crossed that distance and in doing so, must have been visible to Mr Mangarelli. The plaintiff submitted that Mr Mangarelli's evidence that he did not see the plaintiff, could only be consistent with him not keeping a proper lookout.
84The difficulty with that submission is the number of unknowns which have already been referred to. One of the most important of those is the point in time at which the plaintiff emerged from behind the fence line. Another important unknown is the mechanism by which the plaintiff became separated from the bike and ended up beneath the bus.
85Another difficulty with the submission is that it fails to take into account that the bus was moving as Mr Bailey's spreadsheet made clear (see [35] hereof). 2.4 seconds after the bus started to move, its front had already reached the northern side of the concrete ramp. Two seconds later, the front of the bus was almost past the concrete ramp. It is clear from the photographs and the diagram which was prepared by Mr Bailey, that the closer the bus moved to the laneway, the more difficult it would be for Mr Mangarelli to observe somebody coming from it. While Mr Mangarelli's peripheral vision cannot be ignored, his focus as a driver of a bus was to look primarily to his front, not to the sides.
86Mr Bailey explained the difficulty:
"WITNESS BAILEY: Not via the camera, we know that's physical evidence, that he is not seen. That puts it in a region relative to where the driver is that may be partially or wholly obstructed by fixed parts of the bus at relevant times. So I don't think that you can conclude from the fact that the bike and/or the plaintiff may have been at certain positions near the front left of the bus, not in front of it but to the left of the bus, that therefore the rider and/or the plaintiff would be visible at those times and certainly not in circumstances where they had fallen over and the rider was being projected towards the roadway. And I outlined the geometry of that, I believe, in the first report, I forget, somewhere near the back. The physical geometry of the bus is such that the driver has certain obstructions to do with the dashboard, to do with the change machine, if that's what it is, there's a box there, to do with the Acom. So that once the bike is down near the roadway, near the ground, sorry, and the plaintiff if he was projected down near the ground even if they were ahead and to the left of the front of the bus even if the driver did direct his gaze in that direction, they may not be within his field of view.
...
He certainly can be ahead of the bus. He can be partially going under. There's quite a lot of vertical height at the front of the bus so he could be coming in just sort of under the front, a little from the side. He could certainly be completely in front of the bus but not so far in front of the bus that he would be visible." (T. 646.21 - .36, .47-50)
87The plaintiff submitted that the CCTV footage showed Mr Mangarelli looking mainly to the right and not looking to his front and only once looking to his left. The plaintiff submitted that this supported the proposition that Mr Mangarelli was not keeping a proper lookout and explained why he did not see the plaintiff.
88The difficulty with that submission is that it is not supported by either expert. Mr Bailey in his first report at p 60 said:
"Mr Johnston comments on the defendant becoming fixated (ie on the first bike rider), however I feel this is based on a misinterpretation of the evidence. CCTV footage appears to show the opposite, in that after the defendant's head moves in a manner consistent with his gaze following the first cyclist, he then appears to lift his gaze to the offside mirror (approximately 2.52 sec) and then look further towards areas on the offside of the bus (approximately 4.50 sec, when his head moves down and further right).
Caution is required when interpreting actual driver gaze from CCTV footage because:
The eyes are not usually visible with sufficient resolution to determine direction of gaze.
The gaze can be in a somewhat different direction than might be inferred from the orientation of the head.
The direction of gaze can change rapidly and will typically precede head movement. Gaze direction can change within the time interval between CCTV frames (approx .18 seconds between sequential images in this case)."
89Mr Johnston in his report of 24 October 2011 said:
"2.93 I note that I commented about the driver being fixated and failing to identify the plaintiff at any time prior to impact. This comment was made without access to the CCTV footage.
2.94 It is still noted that the driver has seemingly failed to identify the plaintiff at any time prior to impact but he can be seen looking in different directions prior to this incident. He is seen to watch the other cycle and look in the mirror to his right as discussed but he appears to look back and ahead at different times.
2.95 I do though agree with the WB comment that precise gaze analysis from this quality of video is not possible and one cannot be certain based only on head positions where he is actually looking."
Mr Johnston adhered to that opinion when he gave evidence at trial. (T.533.4)
90In addition to the above matters the plaintiff submitted that the emergence of Mr Aslett from the laneway in front of the bus should have alerted Mr Mangarelli to the likelihood that someone else might unexpectedly emerge from the lane and so he should have kept it under observation. This was particularly so, it was submitted, because this was a suburban street where young persons such as the plaintiff and Mr Aslett could be expected to be present.
91This submission is based essentially on hindsight. Mr Mangarelli as the driver of the bus had a primary responsibility of looking to the front and making sure that there were no obstructions, human or otherwise, to his proposed route. This is what he said he did. No persuasive basis has been put forward for not accepting that evidence.
92As a subsidiary argument, the plaintiff submitted that Mr Mangarelli was clearly not keeping a proper lookout because he did not see Mr Aslett until he was already halfway across the road. The evidence does not support that submission. Mr Mangarelli was not asked when he first saw Mr Aslett. The whole thrust of Mr Mangarelli's evidence on that point is that he did see Mr Aslett on his bike in front of the bus. The significance of Mr Aslett being midway across Bunker Parade was that this was the point at which his reflection first appeared on the signboard in the CCTV footage.
93The plaintiff submitted that the actions of the passengers in the bus were consistent with Mr Mangarelli not keeping a proper lookout. If he were keeping a proper lookout, it would not have been necessary for one of the passengers to shout "stop". Whatever the passenger had seen should have been observed by Mr Mangarelli.
94That submission is not made out. The passenger who shouted to the driver was seated towards the back of the bus and would have had a wider view to the nearside of the bus than Mr Mangarelli. There is no evidence as to exactly what the passenger saw. The submission also fails to take into account the sequence of events. In his statement to the police, Mr Mangarelli referred to hearing first a noise which he described as a "bang" on the side of the bus, followed by the passenger shouting "stop" and then a bump as the bus went over something. That is the same sequence of events described by Mr Duong when he referred to hearing a thumping noise followed by the other passenger shouting "stop". The explanation for why Mr Mangarelli, even after that sequence of events, could still not see anything was because the initial contact by the bike or the plaintiff with the bus appears to have been on the side of the bus, not to its front.
95I am not persuaded that such a sequence of events is consistent with Mr Mangarelli not keeping a proper lookout. Mr Bailey explained why there would have been difficulties in Mr Mangarelli making an observation to the side of the bus, or of something immediately in front of the bus (see [86] hereof).
96I have concluded that the plaintiff has failed to establish that Mr Mangarelli was not keeping a proper lookout. I have reached this conclusion because there are too many unknown factors as to how the accident occurred. Putting the plaintiff's case at its highest, all that can be said is that there are some scenarios which may have occurred which are consistent with a failure on the part of Mr Mangarelli to keep a proper lookout. Unfortunately for the plaintiff, he is unable to prove on the balance of probabilities that any of those scenarios eventuated.
97That difficulty is compounded when, as Mr Johnston agreed, there is another scenario equally consistent with such evidence as is known which does not involve a failure to keep a proper lookout on the part of Mr Mangarelli. That scenario is Mr Bailey's theory of the plaintiff emerging from behind the fence line, swerving to the south because the bus was moving across his front and falling from his bicycle onto the road.
98This gives rise to a situation such as that considered in Luxton v Vines [1952] HCA 19; 85 CLR 352 where the plurality said:
"Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture" (p 358)
"Many conjectures may be put forward which would explain these matters, but the fact that some of them imply negligence in the driver of the vehicle is not enough. Some of them clearly do not and there is no reason for rejecting the latter in favour of the former. There is no higher degree of probability on the one side than the other. ...
"Any answer that you give to such questions is a guess. All lies in conjecture. The fact is that whatever reasons you can find for one explanation of the accident, reasons of equal sufficiency or insufficiency exist for other explanations.
The circumstances give rise to nothing but conflicting conjectures of equal degrees of probability and no affirmative inference of fault on the part of a driver of a motor car can reasonably be made." (p 360)
99The plaintiff put his claim in negligence on an alternative basis. He submitted that rather than bring the bus to a gradual halt, Mr Mangarelli should have applied the brakes in an emergency fashion as soon as the passenger shouted "stop". The plaintiff submitted that had he done so, because of the comparatively low speed at which the bus was travelling, the bus could have been brought to a stop before the nearside front wheel passed over his leg.
100The basis for that submission was set out in the report of Mr Johnston of 15 December 2011. There Mr Johnston said:
"Avoidance Options
In all of these scenarios one can consider the avoidance opportunities available to the bus driver. The response would require two stages, firstly a perception response time to identify Egan appearing from behind the sight obstruction of the timber fence and potentially entering his pathway and second a braking time to bring the bus to a stop.
Perception/Response Time
Applying the IDRR program of Muttart to determine a response time suggests a time of about 2.7 seconds (assumes a 30 degree eccentricity, a slower response due to competing multiple objects but a cued response as it is a bus driver leaving a bus stop) assuming the driver did not specifically look towards his left, possibly as low as say 2 seconds if he looked towards the left side of the roadway (assumes a 10 degree eccentricity if he looked to his left but still assumes a slower response due to competing multiple objects).
Braking
Braking is a function of the assumed deceleration rate and the speed actually reached by the bus at the time it commences to brake. The bus in an emergency braking scenario would achieve at least 0.5g deceleration rate and does not reach a speed less than 10 km/h or more than about 14 km/h in the region over which impact is likely to have occurred under any scenario.
The required braking distance was between about 0.8 and 1.5 metres. At the initial speed of travel this is equivalent to less than half a second of travel.
Therefore the required sightline to react and stop was about 3.2 seconds if the driver did not specifically look towards the left or about 2.5 seconds if the driver did check to his left as he commenced to move forward.
The reader should also note that the required braking distance even from the maximum speed reached of 17 km/h is about 2.3 metres which is less than the front overhang of 2.7 metres suggesting that even if the driver braked as the cyclist struck or went under the front of the bus he could have brought the bus to a stop prior to running over the cyclists leg."
101This submission has not been made out.
102The first difficulty is the factual premise upon which it is based. The only evidence as to what happened in the bus comes from Messrs Mangarelli and Duong. I have already indicated my preference for the version of events given by Mr Mangarelli in his police statement. It is clear from that statement that the "bang" on the left side of the bus, the passenger calling "stop" and the bump occurred almost contemporaneously. Certainly there is no significant delay between them occurring. In fact later in his statement, Mr Mangarelli suggested that the bump beneath the bus occurred at about the same time as the passenger called "stop":
"Q. You said, you did hear something hit the front of the bus is that right?
A. No hit at the front it's on the side, I felt bang first and the next moment I felt a roll underneath. That was in the time of the person that he screamed "stop stop stop"."
103In evidence Mr Mangarelli said:
"Q. Before the passenger screamed "stop stop" did you hear or feel anything unusual?
A. About the same time I felt a bump in the front under the wheels and at the same time, after, I felt on the side, something hit on the side of the bus. And I just I pull up gently because there was nothing on the road. I didn't just brake all at once and it took me a couple of metres to stop and I just bring the bus to standstill." (T.213.26)
104As already indicated, the evidence of Mr Duong is consistent with that of Mr Mangarelli.
105It is not clear from that evidence that there was anything like 2.5 seconds between the initial "bang" on the side of the bus and the bump beneath the bus, which was clearly the bus passing over the plaintiff's leg. That was the minimum time suggested by Mr Johnston for a perception/response which included the emergency application of the brakes on the bus.
106It is also difficult to reconcile Mr Johnston's theory with the analysis of bus movements set out on Mr Bailey's spreadsheet (see [35] hereof). According to the spreadsheet at 6.20 seconds the passenger turns his head and at 7.20 seconds the experts agreed that the bus probably passed over the plaintiff's leg. (See [36] hereof.) Those timings and movement of the bus are quite inconsistent with Mr Mangarelli having 2.5 seconds or more to perceive and respond by emergency braking to either a noise or shout by the passenger. This factual deficiency goes not only to breach of duty but also to causation.
107The second difficulty is the implicit assumption that the appropriate response by a bus driver to a "bang" on the side of the bus and a passenger shouting "stop stop stop" is to apply the brakes in an emergency situation when the driver has not himself observed any reason to do so. It is not clear why in those circumstances bringing the bus to a halt, but not making an emergency application of the brakes, involves a breach of duty. As was pointed out in evidence, a sudden emergency stop by a bus could cause injury to passengers. I am not persuaded that it was negligent on the part of Mr Mangarelli to bring the bus to a stop by way of a normal application of the brakes, as distinct from an emergency application.
108Mr Mangarelli's evidence on this issue provided a reasonable basis for his actions.
"Q. Is there any particular reason as to why you stopped the bus gradually rather than suddenly?
A. I stop gradually because the road was clear, there was nobody there and there was no reason me to brake suddenly. If I knew the boy was there, of course I would have brake, I would have tried to avoid to go so far under the bus, whatever happened, but there was nobody there." (T.244.29)
Relevant to this issue is the evidence of Mr Mangarelli at [27] hereof (T.228.31).
109Mr Bailey responded to the evidence of Mr Johnston on this issue in his report of 13 March 2012 (exhibit 10) as follows:
"11) Mr Johnston's second conclusion at p3 that, in short, even if the defendant could not avoid a first collision with Mr EGAN, then he should have been able to stop the bus before running over his leg because the stopping distance was less than the front overhang of the bus is not scientifically valid because:
It assumes a collision occurred with the front nearside of the bus in conflict with the available physical evidence that indicates there was no signification collision. Such an assumption is not valid.
It assumes there was sufficient noise from a collision at the front nearside of the bus to both attract the attention of the driver and indicate the immediate need for heavy braking. Generation of such noise seems unlikely for a collision, assuming one did occur, that produced no damage or other evidence of significant contact. Even if an audible noise was generated, bus drivers are trained and have a duty not to brake heavily unless essential because of the risk to unrestrained passengers if a bus brakes heavily.
The noise described by the defendant was characterized as perhaps similar to the noise of interacting with a garbage bin. The actual noise can never be known and cannot therefore form the basis of a scientific assessment of perception response because the nature of the possible hazard is undefined.
If the driver had braked heavily upon hearing the plaintiff under the front of the bus, this would cause downward pitching that would reduce clearance between the bus and the roadway, potentially increasing the severity of the plaintiff's crush injuries to the torso and pelvis."
110Mr Bailey gave evidence concerning that part of his report as follows:
"A. In answer to your question as I understand at present regarding weakening .2 on page 11 I don't believe it does. Because the thought that I was trying to express there was that the generation of a noise does not directly indicate to the driver how they should respond to that noise.
...
I do rely upon it to the extent that I don't believe a noise itself gives rise to an immediate perception for a driver in any circumstance to suddenly brake in response as distinct from swerve or sound or anything. And as I made the other points there bus drivers have a particular duty because they have unrestrained passengers." (T.265.1-.6, .13-.17)
"WITNESS BAILEY: So that as a response to that, a reasonable reaction would be perhaps to start limited precautionary braking at best. It certainly wouldn't mean to immediately translate that into full braking of a public vehicle." (T.627.29)
111This submission by the plaintiff is redolent with hindsight. What has to be done is to place one's self in the position of the bus driver as he was at the time and to assess the adequacy of his response by reference to the information then available to him. Assessed by that standard, I have concluded that the response of Mr Mangarelli in relation to how he applied the brakes was reasonable.
112As I have also indicated, there is a causation issue. The events which are relied on as matters which should have caused Mr Mangarelli to apply the brakes in an emergency way occurred too contemporaneously to have allowed a realistic perception and response time. As Mr Bailey pointed out, emergency braking could have made the situation worse by depressing the front of the bus. There was no challenge to Mr Bailey's opinion on that issue.
Contributory negligence
113If I am wrong in my assessment of liability, senior counsel for the plaintiff accepted that a finding of contributory negligence would have to be made against the plaintiff. He suggested an assessment of 50 percent.
114The principles to be applied when assessing contributory negligence are tolerably clear. The test is an objective one (Joslyn v Berryman & Anor [2003] HCA 34; 214 CLR 552). In view of the appropriate concession made by senior counsel for the plaintiff, the Court need not consider that issue further. The real question is the extent to which the plaintiff's conduct contributed to his injuries.
115The apportionment exercise is a discretionary one. What I have to do is to balance the causal potency of the actions of the plaintiff and Mr Mangarelli, i.e. which conduct made the greater contribution to the damage and their relative culpability (Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; 59 ALJR 492).
116On the primary findings of fact which I have made, it is apparent that the bus was moving at the time that the plaintiff cleared the fence line. At that time the plaintiff could have taken some avoiding action or have slowed or brought the bike to a halt, albeit with some difficulty, given that the front brake was inoperative. In that sense, the plaintiff was more in control of the situation than Mr Mangarelli. There is no evidence of what the plaintiff was trying to do when he became separated from the bike and the accident occurred.
117I have concluded that the plaintiff's conduct made a greater contribution to the occurrence of this accident. Similarly, the culpability of the plaintiff for what occurred is greater than that of Mr Mangarelli. In those circumstances, I would assess the contributory negligence of the plaintiff at 70 percent.
Conclusion as to liability
118As a result of the above findings, the plaintiff has failed to establish that Mr Mangarelli was not keeping a proper lookout and has failed to establish that he was in breach of the duty which he owed to him by not making an emergency application of the brakes on the bus. It follows that there must be judgment entered in favour of the defendants. If I am found to have been incorrect in my assessment of primary liability, I assess the level of the plaintiff's contributory negligence at 70 percent.
119Despite those findings, it is still necessary for the Court to assess damages. This is done on a contingent basis in case my assessment of liability is found to be incorrect.
Damages
120There are certain key dates which are important in the assessment of damages. The plaintiff was born in December 1990 and was aged 21 when the hearing concluded. The accident occurred on 1 July 2007. The plaintiff's life expectancy is 64 years.
121There was an issue between the parties as to the plaintiff's life expectancy. At the time of trial, the plaintiff was a heavy smoker. The defendants submitted that by reference to the evidence of Professor Mattick, a psychologist, and by reference to the evidence of Dr Maxwell, an orthopaedic surgeon, the plaintiff's life expectancy should be reduced so as to take account of his smoking habit. I do not accept that submission. The extent to which, if at all, the plaintiff's life expectancy will be reduced because of his smoking is too uncertain to provide appropriate guidance for the Court. Moreover, the expressions of opinion upon which the defendants relied were expressed in very general terms, without reference to epidemiological studies or other scientific data.
122There is an additional consideration. At the conclusion of the trial, the plaintiff was aged 21. It may well be as he matures, that he will better appreciate the risks associated with smoking and will either cease or significantly reduce his use of tobacco. That possibility was not explored with him in cross-examination. Accordingly, I am not persuaded that the plaintiff's present use of tobacco should be used to reduce his life expectancy set out in the life tables. It is also not without significance that the life tables have built into them an allowance for the fact that part of the population does smoke cigarettes.
123It was common ground that as a result of the accident, the plaintiff suffered the following injuries:
Right above knee amputation.
Brain injury.
Compound fracture of left ankle.
Left femoral fracture
Pelvic fractures: bilateral inferior and superior pubic rami.
Left sacral ala fracture.
Left scapula fracture.
Left clavicle fracture.
Left neck of humerus fracture.
Right sternoclavicular joint dislocation.
Right radius and ulnar fracture.
Bilateral rib fractures.
Bilateral haemopneumothorax.
124While there was agreement that the plaintiff had suffered brain damage, there was not universal agreement as to its cause. The majority opinion was that it was ischaemic, probably caused by an hypoxic or anoxic episode in that for a period of time his brain was deprived of oxygen and/or blood.
125An assessment of the plaintiff's level of brain damage was difficult because it was clear that he suffered from a personality disorder and other defects before the accident. These were summarised by the psychiatrists, Drs Jungfer and Sidney Smith, in their joint report as follows:
"Cognitive testing in 1998 revealed a verbal IQ in the 76-88 range, performance IQ in the 84-95 range and a reading age below the age 6 level. Repeat cognitive testing in 2000 found that he had a verbal IQ of 73 and a performance IQ of 86. SNAP testing in 2003 showed that his numerical abilities were "elementary" and ELLA testing showed that his linguistic abilities were in the "low" category. His numeracy and literacy thus echoed his essentially borderline verbal IQ. These features indicated significant problems learning at school and would have had an enduring impact on the type of work he could do.
Throughout his schooling he exhibited gross behavioural problems that included bullying, physical violence, dangerous behaviour towards others and gross disrespect for his teachers. He was suspended from school on at least 10 occasions in high school and from years 7 to 9 there were at least 63 formal complaints about his behaviour. In year 10 one teacher noted he had "major attitude problems" and that the prospects for his completing the School Certificate were "extremely bleak". He left before completing that year.
In the subsequent months leading up to the accident, he worked for some months in a factory, apparently leaving after a physical altercation with his boss. He worked a few days in a butcher's shop, but left as he complained that the work hurt his back.
He told Ms Argues that he consumed four cones of marijuana about twice a week prior to the accident."
126In answer to the question whether, and to what extent, those matters were likely to have continued into the future, the psychiatrists said:
"DSM-IV states that a "substantial proportion" of those with Conduct Disorder continue to show behaviours into adulthood that meet the criteria for a diagnosis of Anti-social Personality Disorder and that in those with the latter diagnosis it is usually by the fourth decade that the disorder becomes less evident. If the evidence of relationships outside of the school environment supports a diagnosis of conduct disorder, it is possible that he would have exhibited Anti-social Personality Disorder traits in the future which would have put him at risk of escalating illicit drug use and of incarceration."
127Despite his mother's evidence that his misbehaviour only occurred at school, it is obvious from other documents that she was having considerable difficulty controlling his conduct. I am satisfied that his anti-social behaviour, at least insofar as his mother was concerned, was not restricted to school but continued at home.
128The psychiatrists agreed that the accident, with its consequential brain damage, had exacerbated those pre-existing mental deficits. This was most vividly demonstrated approximately six weeks after the accident when the plaintiff's episodes of rage and anger at the hospital were so extreme that he was discharged earlier than otherwise would have occurred. In relation to any psychiatric or psychological condition caused by the accident, the psychiatrists said:
"He has suffered an Adjustment Disorder in response to the accident and its effects. He initially suffered a Post Traumatic Stress Disorder but with the passage of time some symptoms have resolved. He continues to have flashbacks of being pinned beneath the bus, anxiety near buses and hot environments cause him distress. His ongoing use of marijuana is likely to be aggravating this condition.
From the time of the accident he was depressed over his predicament. He has suffered anxiety with reminders of the accident such as being in hot environments or a bus rushing past. His ongoing symptoms impact on his ability to socialise, integrate and mobilise in the community."
129In relation to being able to conduct his financial affairs, the psychiatrists concluded:
"Because of his borderline intellect he would always have had difficulty managing his financial affairs. The aggravation of his premorbid personality traits, whether due to brain damage or his response to his disabilities, makes the need more pressing.
He is at risk of exploitation and so we agree that his affairs should be managed under the Protective Estates Act."
130There was a difference of opinion between the two psychologists who gave evidence in the matter - Mr Rawling, on behalf of the plaintiff, and Professor Mattick, on behalf of the defendants. In Mr Rawling's opinion the brain damage resulted in an exacerbation of pre-existing language difficulties (reduced comprehension and a nominal dysphasia) and a slowed rate of information processing. He thought there was evidence to suggest that frontal lobe damage had led to disinhibition and a worsening of the behavioural problems emerging in his higher school years. Professor Mattick saw the language difficulties as pre-existing and pointed to intact information processing results obtained in 2008. With regard to disinhibition, Professor Mattick saw that as a pre-existing condition worsened by the adjustment disorder caused by the accident. The psychologists disagreed as to whether there was a cognitive impairment aggravated by the accident.
131In the two years before the trial, there had been a significant improvement in the plaintiff's presentation to doctors. This improvement in attitude to life was noted by the plaintiff's mother. It was during this time that the plaintiff commenced using a prosthesis on a regular basis, albeit not more than 3 or 4 hours per day. Before then he had primarily been using a wheelchair for mobility. There was an issue in the trial as to the extent to which the plaintiff was likely to use a prosthesis in the future.
132At trial the plaintiff complained of problems with his prosthesis. After 2 or 3 hours the stump became extremely sore and inflamed and forced him to rest. At home he would not use the prosthesis but preferred to use his wheelchair.
133Apart from the obvious restrictions brought about by his above knee amputation, the plaintiff suffers constant pain in his mid and lower back. This causes difficulty with sleeping. He is restricted in his ability to weight bear on his left ankle, because it becomes painful. He has developed a rash on the stump which causes further difficulty in using his prosthesis.
134The plaintiff gave evidence that his memory had deteriorated considerably. He said that he forgets where he put his telephone, his keys and his wallet. This complaint was not confirmed by the psychological testing. It probably represents a psychological difficulty and not an organic problem.
135The plaintiff complained about restrictions in his ability to move his left arm. He has noticed a crunching/grinding sensation in his left shoulder when he moves his left arm. His left shoulder aches when he applies sustained weight bearing or pressure on his left arm.
136The plaintiff complained about embarrassment when using a wheelchair outside the home. It is for that reason that he has in more recent times tried harder to use his prosthesis. He uses his prosthesis when he leaves home. After 3 hours the stump becomes very sore and he has to rest. Because of fluctuations in weight, he has needed to have his prosthesis adjusted on a number of occasions. At trial he said his present prosthesis was uncomfortable and awkward to use.
137The plaintiff was 16 when the accident occurred. He was a person who depended very much upon his physical abilities. All of this changed when he lost his leg in the accident. He now has to face the future in circumstances where he is going to be dependent on others in many aspects of his daily life.
Non-economic loss
138The plaintiff submitted that he should be compensated on the basis that his injuries and continuing disabilities constitute a most extreme case, for the purposes of the Motor Accidents Compensation Act 1999 (MAC Act). I do not agree. While the injuries and disabilities suffered by the plaintiff are devastating for a young man, I am of the opinion that a proper assessment of non-economic loss is 80 percent of a most extreme case, i.e. $360,000.
Future medical treatment
139It was accepted by the parties that it was reasonable for the plaintiff to consult a physician in rehabilitation medicine twice a year, either a brain injury specialist or a psychiatrist. There was a small difference in the calculation of the amount. In this regard I accept the calculation of the plaintiff in the amount of $9,437.
140In relation to consulting a general practitioner, the plaintiff claimed the cost of six consultations annually. The defendants were prepared to allow four such consultations. Keeping in mind the need for the plaintiff to take medication for the rest of his days, and allowing for exacerbations of his various injuries from time to time, six consultations per year is a reasonable prescription and I allow $8,793 for that claim.
141The plaintiff claimed for two consultations with an orthopaedic surgeon annually. This was based on an assessment of Dr Buckley, a rehabilitation specialist. The two orthopaedic specialists who gave evidence, Dr Maxwell and Dr Harrison, both agreed that no further orthopaedic treatment was required. Since the plaintiff has complained without challenge, of continuing problems in his left shoulder and back, I consider it reasonable that he consult an orthopaedic specialist at least once a year and I award $2,863 for that.
142Dr Buckley recommended 12 physiotherapy treatments annually for the rest of the plaintiff's life. At the time of trial, the plaintiff had not received any physiotherapy treatment since his discharge from the rehabilitation centre at the end of 2007. This was no doubt due to his impecuniosity, rather than there being no requirement for such treatment. Dr Zeman, a rehabilitation specialist qualified by the defendants, did not recommend such treatment. Dr Maxwell and Dr Harrison did not recommend such treatment.
143Over the next 64 years the plaintiff is likely to suffer exacerbations of his orthopaedic problems, particularly relating to his left ankle, back and left shoulder. This is particularly so as he gets older. When those exacerbations occur, he will require a period of intense physiotherapy. In order to deal with that likelihood, I award damages equivalent to six physiotherapy treatments per year, i.e. $12,116.
144Dr Buckley recommended one 4 hour visit per year by an occupational therapist. Ms Curtain, occupational therapist, suggested a further 18 hours per year. The prescription by Dr Buckley of one 4 hour session per year seems reasonable so that whatever exercises and activities prescribed for the plaintiff can be adjusted from time to time. I do not see any justification for a further 18 hours per annum. Accordingly, I award $11,792 for occupational therapy.
145Dr Buckley recommended case management services at the rate of 8 hours per month at $165 per hour for the first 6 months of any significant new arrangement and thereafter 4 hours per month plus travelling time. I accept the need for a case manager if the plaintiff is to receive assistance from an occupational therapist, a carer and other health professionals. The task of the case manager is to co-ordinate the various treatments being received by the plaintiff. Given the plaintiff's mental difficulties identified by the psychiatrists, such an independent person is essential. I am not, however, persuaded that the frequency of consultations suggested by Dr Buckley is necessary. In a global sense, I would award $50,000 for case manager services.
146A claim was made by the plaintiff for health insurance for the rest of his life in the amount of $42,307. Health insurance would enable the plaintiff to claim a rebate in relation to all of his disabilities, not just those caused by the accident. Moreover, the effect of such insurance would be to reduce the overall expenditure by the plaintiff with respect to those medical services for which allowance has already been made. I am not persuaded that a causal relationship between the occurrence of the accident and the plaintiff's need for health insurance has been established. I reject that claim.
147It follows that I allow $95,000 for future medical expenses.
Past out of pocket expenses
148Past out of pocket expenses were agreed between the parties at $105,918.99. This will need to be added to the plaintiff's damages.
Future pharmaceutical and equipment expenses
149Other figures agreed between the parties were:
Future pharmaceuticals $ 10,000.00
Future equipment - wheelchair
and miscellaneous: $ 50,000.00
Prosthesis
150Before trial it was agreed between the parties that it was appropriate for the plaintiff to be fitted with a C-leg prosthesis at a cost of $550,000 for fitting and maintenance. The C-leg device was a prosthesis with a computer activated knee joint. It was described by Mr Laux, an expert in the fitting and management of prostheses, as follows:
"Q. What are the advantages of this new C-Leg?
A. It has a more sophisticated hydraulic system. It has an array of sensors, additional sensors that allow the hydraulics and the microchip to react quicker, which means it's safer ultimately. It allows the user to walk - step off a step upstairs. It allows the user - which is the first prosthetic knee joint that allows it. It allows the user to walk backwards without involuntary triggering a second mode. It's what they call weatherproof, or water resistant. " (T.344.12)
151During the trial, as a result of the joint consultation between the rehabilitation specialists, Dr Buckley and Dr Zeman, the defendants withdrew their consent to the costs of a C-leg being allowed. They did so because Dr Buckley no longer recommended that the plaintiff be fitted with a C-leg prosthesis. Dr Buckley had changed his opinion because of his understanding that the plaintiff had not been using his "normal" prosthesis on a regular basis and when he did so, it was for no longer than 3 or 4 hours per day. Those doctors agreed that for the cost of a C-leg prosthesis to be justified, it should be used for at least 10 to 12 hours per day. Dr Zeman in particular did not accept that the plaintiff had the necessary dedication to persist in using a prosthesis so as to be able to reach a stage where he was using it for 10 to 12 hours per day.
152There is no doubt that the plaintiff's history since the accident has not shown him to be vigorous in pursuing rehabilitation aims. He has only started to regularly use his prosthesis in the last two years. Even then he does not use the prosthesis for longer than 3 - 4 hours per day. His reason for not doing so is because of the pain which it causes due to damage to the scars on his stump.
153It emerged in evidence that one of the reasons why the stump would become inflamed and sore was because the plaintiff had not been regularly using the prosthesis. That, of course, is what has happened over the last 2 years. The plaintiff has commenced using the prosthesis on a regular basis, and as a result has been experiencing considerable pain in the stump. This should improve if he continues to use his prosthesis.
154While I understand the pragmatic approach of Dr Zeman, and to a lesser extent Dr Buckley, I have concluded that every opportunity should be given to the plaintiff to improve his mobility and to gain whatever level of independence he can. In those circumstances, I propose to award to the plaintiff the cost of acquiring and maintaining a C-leg prosthesis.
155In reaching that conclusion, I have been influenced by the fact that the defendants did not withdraw their consent to the cost of a C-leg prosthesis until the middle of the trial and that the capacity of the plaintiff to argue that issue was reduced in that he and his legal advisors had not been able to properly discuss the issue with Dr Buckley and Mr Laux. Accordingly, I award $550,000 for the cost and maintenance of a C-leg prosthesis.
Future motor vehicle and travel expenses
156The plaintiff claimed the difference in cost between a 2011 Holden Commodore Omega sedan and a 2011 Chrysler Grand Voyeur LX wagon. That latter vehicle is a van with ramps to enable a wheelchair to move easily on and off. That was a prescription originally given by Dr Buckley in his report of 6 April 2011. In his evidence, however, Dr Buckley resiled from that approach.
"HIS HONOUR: ... As I read your reports Dr Zeman I understand that if he is primarily limited to a wheelchair, you don't see any particular need for a special vehicle. You would accept as reasonable a collapsible wheelchair or crutches and he could get into a vehicle, collapse the wheelchair and put it in the back and then be driven by someone.
WITNESS ZEMAN: Yeah that's right.
HIS HONOUR: So he doesn't need a vehicle with ramps and all that kind of thing?
WITNESS ZEMAN: Yes. Those things are designed for spinal injury clients where you have issues with transfers. This guy's able to transfer, get up and down. He doesn't need - those are what's called roll-on roll-off type of arrangements, right, where you have a thing. Now the main issue with him is if he gets into a car or whatever is it big enough for his size and where are you going to put the wheelchair, so you either get a roof, you get a roof type arrangement to lift it up or you fold it up and put it in the boot and just get a large enough vehicle but most you know large large vehicles can manage that.
HIS HONOUR: Dr Buckley what is your view?
WITNESS BUCKLEY: Your Honour I would accept that I think that's reasonable." (T.562.29 - 563.2)
157On the basis of that evidence, I would reject the claim for a special vehicle designed to accommodate a wheelchair. I do, however, award an amount for vehicle modifications which the defendants conceded of $3,600.
Computer and environmental facilities
158The plaintiff claimed the cost of computer equipment, a mobile phone, set up services, training, internet connection and support. This has a set up cost of $5,882 with ongoing costs of $3,386 per annum. The basis for the claim was that before the accident the plaintiff was able to entertain himself by physical activities outside the home. As a result of the accident, it is now necessary for him to spend an increased amount of time in his home. His ability to communicate with others has been reduced because of his physical limitations. The need for a computer is to offset those disabilities and to restore to the plaintiff some of that which he has lost. The total cost of $72,338 claimed by the plaintiff is reasonable, as is his increased need to use a computer. Accordingly, I award the plaintiff the $72,338 claimed.
Future holiday care
159The plaintiff claims the additional cost of travel and accommodation for 14 nights for a carer to accompany him on a holiday to a place such as the Gold Coast on an annual basis. The additional cost is $7,088 per annum. This works out to a total claim of $139,046.
160The defendants challenge this claim on two bases. The first is that the defendants do not accept that the plaintiff would not be able to travel without a carer. On that issue, the defendants rely upon the evidence of Dr Zeman. The second basis is that uninjured, the plaintiff would not have been able to afford to take an annual holiday at that cost. The defendants submit that as a manual worker, who was probably going to experience substantial periods of unemployment, an annual holiday at that cost would have been beyond him.
161Because of his mental, as well as physical disabilities, I accept that the plaintiff would need to be accompanied when going to a strange location. There is, however, more force in the defendants' second submission. I do not see the plaintiff had he not been injured, being able to afford an annual holiday at that cost. The more likely scenario is a holiday every three years. Accordingly, I award $46,350 for future holiday care.
Housing needs
162The plaintiff submitted that he is entitled to the difference between the cost of a conventional house and one which has been especially modified to accommodate a wheelchair dependent person. This claim of $972,629 was made up of three components - the difference in building costs of $466,541, the additional maintenance and running costs of $20,544 per annum ($430,848) and recurring costs of $5,216 per annum ($102,240). Such a home was prescribed by Dr Buckley and the justification for the cost was provided by Mr Mazaraki, an architect experienced in providing accommodation for disabled persons.
163The defendants submitted that the plaintiff was not entitled to any damages under this head. They based this submission upon the evidence of Dr Zeman, who was of the opinion that the plaintiff as an amputee, who was able to use a prosthesis, did not need a wheelchair modified home. In the alternative, the defendants submitted that a number of matters included in the proposed modified house were not reasonably necessary to satisfy the plaintiff's needs.
164For the reasons set out by Drs Buckley and Zeman, it is unlikely even with a C-leg that the plaintiff will be able to use a prosthesis on a permanent basis. For the reasons which he indicated in his evidence, he may well need to rest and use a wheelchair for periods of time while he is at home. In addition, there may be occasions when the plaintiff is disabled and is unable to use his prosthesis and will be dependent upon his wheelchair for mobility. As Mr Mazaraki said in his evidence, if there is a real need to use a wheelchair, even on a sporadic basis, a house has to be modified. Accordingly, I am satisfied that the plaintiff is entitled to the difference in cost between a conventional house and one which has been modified to accommodate a wheelchair dependent person.
165Although I have reached that conclusion, I am not satisfied that the plaintiff needs a number of the additional features which Mr Mazaraki has proposed for that home.
166I accept the need for a two-car garage. This will provide accommodation for the car used by the plaintiff and for persons visiting him, either family or professionals.
167I do not accept the need for an additional bedroom, en suite shower and WC for a carer. My reasons will emerge when I discuss the plaintiff's care needs.
168I do not accept the need for an enclosed heated swimming pool, with all the attachments recommended by Mr Mazaraki. I consider the cost to be out of proportion to the benefit likely to be obtained. The cost of the pool and its accessories is $154,327. As well, there would be substantial maintenance charges of $5,000 per year. I am not satisfied that the plaintiff would regularly use the pool. I am certainly not satisfied he would use it for therapeutic purposes. His evidence was that he enjoyed swimming but is now too embarrassed to use a public pool. I reject this claim.
169I do not accept that the plaintiff needs to have reverse cycle ducted air conditioning throughout the modified house. It would certainly make him more comfortable but it is not a need brought about by his disability. Accordingly, I reject this claim.
170I reject the claim for the provision of a toilet and hand basin for visiting tradesmen and handymen. For the reasons already given, I reject the claim for a plant room to accommodate the air conditioning equipment and a plant room to accommodate the pool equipment.
171While landscaping and fencing around the building, including a motorised gate, would improve the amenity of the property they do not satisfy a need created by the accident. I would reject that claim.
172I do, however, accept that the plaintiff may well require grab-rails, smoke detectors, a motorised garage roller shutter and entry gate. It follows from the above analysis that the architect and engineer fees, escalation fees and contingency fees will also need to be substantially reduced. I would allow $30,000 for those amounts.
173In relation to maintenance and running costs, I would reduce these to $5,000 per annum. Similarly, I would reduce the claim for recurring costs to $1,500 per annum. This is capitalised at $127,750.
174It follows from the above analysis that the amount which I propose to award for housing needs is made up of the following components:
|
Difference in basic house construction costs |
$ 120,220.00 |
|
Additional cost for double garage |
$ 11,000.00 |
|
Grab-rails, thermostatic valves, smoke detectors etc. |
$ 6,530.00 |
|
Architect fees, escalation fees and contingency fees |
$ 30,000.00 |
|
Maintenance costs |
$ 127,750.00 |
|
$ 295,500.00 |
Handyman Assistance
175The plaintiff has made a claim for handyman assistance at the rate of 3 hours per week. This was the prescription put forward by Dr Buckley. I agree that the plaintiff will require handyman assistance if he is living in his own home. Three hours per week appears to be excessive. I would allow 2 hours per week at $35 per hour, i.e. $71,568.
Past domestic assistance, attendant care and supervision
176The plaintiff has not received any paid care in relation to the past. The care has been provided by family members, mostly his mother but from time to time his father. There was also some recreational care provided for him for a period by a Catholic charity. The claim put forward by the plaintiff is for 40 hours per week at the maximum rate allowed under the Motor Accident Compensation Act 1999, i.e. $950 per week for 231 weeks.
177The defendants do not accept that claim as reasonable. They were prepared to allow care at the maximum rate for the first 18 weeks following the accident, but thereafter 26 weeks at 22 hours per week and from 2 May 2008 to the date of trial, i.e. 207 weeks, at 7 hours per week. The defendants' assessment is based on the evidence of Ms Wood and Dr Zeman.
178I am of the opinion that the plaintiff's mother has provided more than 40 hours of domestic assistance, attendant care and supervision for the plaintiff during the period since his accident. I am also satisfied that the plaintiff has established a need for that care, particularly in the first two or three years following the accident when his behaviour was much worse than it is now. Accordingly, I award $219,450 to the plaintiff for past domestic assistance, attendant care and supervision.
Future domestic assistance, attendant care and supervision
179The plaintiff claimed attendant care at the rate of 24 hours per day with active care during daylight hours and sleepover care at night. This was in accordance with the recommendation of Dr Buckley. Ms Curtain, an occupational therapist, substantially agreed with that recommendation. There were, however, other points of view. Dr Zeman, with whom Ms Wood, occupational therapist, agreed, recommended 7 hours per week of assistance and care. The psychiatrists, Dr Jungfer and Dr Sidney Smith, provided a third recommendation. Both those doctors were experienced in treating physically and mentally disabled persons. They agreed that from a purely psychological/psychiatric point of view, there should be at least 12 hours per week of assistance from a person who would help the plaintiff integrate with the community. Dr Jungfer said:
"It would be based on the history that Mr Egan provided to myself regarding his community isolation and taking into account the problems with regards to regulating behaviour due to his hypoxic injury, and also mindful of the substantive adjustment issues he has to his physical impairment and the scarring, the loss of the limb. He presented a history that was consistent with someone who was very socially isolated. As psychiatrists we know that human beings are by nature social. They interact. People who are socially isolated have a higher rate of depression, a low self-esteem and are more likely to engage in challenging behaviours that might place themselves at risk, so the goal of providing him with some form of paid services to take him into the community to participate in social activities was to try and compensate for the variety of difficulties he had, mindful of the fact that his pre-injury social relationships had been lost as a result of the accident. " (T.482.10)
180Dr Sidney Smith agreed with that recommendation and the supporting reasons.
181Both the psychiatrists were critical of a 24 hour care regime. They expressed themselves as follows:
"WITNESS JUNGFER: The provision of care all the time because he makes poor decisions is one that I think he would find very difficult to tolerate and also that there may be ways of securing his environment that he wouldn't require 24 hour supervision, as I see him as someone who would tolerate that very poorly." (T.484.20)
" WITNESS JUNGFER: As I said, the challenge is that I work in a very different model to a traditional psychiatrist and so would commonly be involved in discussion of care hours with my patients and so someone such as Mitchell, you would probably provide, you know, up to twelve hours of care a day but that would cover everything that he needs. Visiting doctors, going to the gym, therapists, everything. Would cover all his needs." (T.487.15)
Dr Sidney Smith agreed.
182In relation to possible risks if care and assistance were restricted to 12 hours or less per day, Dr Sidney Smith said:
"WITNESS SYDNEY SMITH: If he is at home alone, there is a risk. I don't think the risk is high. He has - he has exhibited some self-harm behaviour but very much on an attention-seeking basis, just putting a cord around his neck and so on. I don't think there is a real risk of suicide in him. I don't know that he has self-harmed so far. He has attacked other people but that seems to be coming under control with - with the medications. So I don't think over and above that care that he would need supervision while he sleeps, for example." (T.487.44)
Dr Jungfer agreed:
"I agree with Dr Smith that the history regarding self-harming behaviours has diminished. When I saw him last, there had been no recent evidence of self-harm and therefore the longer the period of time from the last episode of self-harm, the lesser the risk. So I asked him quite frankly about suicidal thinking and he denied it and so I would say that the risk regarding self-harm is significantly less.
In terms of harm within the community, obviously that would be an ongoing issue due to his lack of insight about needing treatment to assist in managing his anger. He was - had quite a bizarre type of insight in that he said, "Oh, they tell me I need to see someone for this", but he didn't think so, so it was this partial recognition and that is going to remain to be a problem. While he is asleep at night he is less likely to get into harm and wouldn't need supervision during that time period." (T.488.4)
"... Well, as I said, I am mindful of the fact that there will be occupational therapy reports and so forth but, based on my clinical experience, that would cover all his needs.
...
But not an extra separate twelve hours per week then. Twelve hours a day, seven days a week, everything." (T.448.38)
183Dr Zeman made the point in his evidence that a carer present for 24 hours per day would be regarded by the plaintiff as a gaoler and such a presence would be quite counter productive. It would prevent the plaintiff from acquiring any real independence or domestic skills.
184I do not regard the 24 hour per day care regime as reasonable. There is a certain robust common sense in the approach of the psychiatrists, supported at least in part, by Dr Zeman. On the other hand, I am of the opinion, again supported largely by the evidence of the psychiatrists, that 7 hours of care and assistance per week would be insufficient. In those circumstances, I am prepared to award damages for future care and assistance at the rate of 12 hours per day. On the plaintiff's calculations, the capitalised figure for such a regime of care would be $4,252,791.
185In his calculations under this heading, the plaintiff included a claim for a gardener-handyman. I have already made an award of damages under that heading and there is no need to provide any increase in such assistance.
Past economic loss
186The plaintiff made a claim for economic loss on the basis that he would have been an apprentice or a cleaner or have occupied some other junior position from 1 July 2007 until the date of trial. The claim was put at $400 per week for 249 weeks, i.e. $99,600. The defendants submit that such an approach was wrong in principle, since it would have been unlikely that the plaintiff would have been able to obtain a job so quickly and it was unlikely that he would have been able to keep the job on a continuous basis, even if he had been able to obtain employment. In that regard, the defendants referred to his work history at the time of the accident. There had already been a falling out with one employer and he had not been prepared to continue with the work in the butcher's shop beyond a day or two.
187There is some force in the submissions of the defendants. Given his pre-accident behavioural issues, it is unlikely that he would have remained in continuous employment and it is equally unlikely that he would have been able to obtain employment as quickly as is suggested. I would reduce the claim for past economic loss by 30 percent in order to take those matters into account. Accordingly, I award $64,680 for past economic loss. Based on that figure, the past superannuation loss would be $7,115.
Future economic loss/loss of earning capacity
188The claim put on behalf of the plaintiff was that uninjured he would have obtained employment as a City Rail train guard or cleaner and would have worked to age 67 in that or a similar job. The earnings in such a position were calculated at the rate of $26 per hour for 40 hours per week, i.e. $1,040 gross or $852 net per week. Those figures were said to be exclusive of overtime and shift penalties. After a deduction of 15 percent for vicissitudes, the figure put forward by the plaintiff for future economic loss was $696,391. The defendants submitted that a more appropriate approach was to calculate future loss of earnings at $400 net per week to age 65, less 20 percent for vicissitudes, i.e. $304,128. The figure of $400 net per week was calculated on the basis that the plaintiff had a residual earning capacity and that $400 represented the difference between what he could earn uninjured, compared to what he could now earn.
189I am not satisfied that the plaintiff is employable. The exacerbation of his behavioural difficulties, which has occurred as a result of his hypoxic brain damage, would prevent him obtaining and holding any kind of employment. His impatience in court confirmed that assessment.
190It is not clear where the plaintiff's solicitors obtained their information about his likely earnings with City Rail. The figures put forward, however, appear reasonable. They are $300 net per week less than average weekly earnings for males at the present time. Since the plaintiff would not be entitled to the age pension until 67, it is likely that he would endeavour to keep working until that age. I do, however, differ substantially with the submissions of the plaintiff on the issue of whether the plaintiff uninjured would have been successful in obtaining and holding employment with City Rail or anyone else. It is clear from his school results that he would have worked as a manual labourer. Such employment is notoriously chancy and those employees are usually the first to lose their jobs in any economic downturn. When one factors in his personality difficulties, the likelihood of him remaining in employment for long periods of time was low.
191The approach I propose to adopt is to use the plaintiff's calculations as my start point, but to deduct 35 percent rather than 15 percent for vicissitudes to take into account those negative factors. The resulting figure is $532,202. The future superannuation loss would therefore be $58,542.
192In accordance with the opinion of Drs Jungfer and Sidney Smith, I have concluded that the plaintiff is not capable of managing substantial sums of money. It is one thing to be able to apply his invalid pension for the purchase of necessities. It is quite another to manage some hundreds of thousands of dollars. Accordingly, the plaintiff is entitled to an amount for funds management. I have not received any submissions from the parties on the question of funds management, accordingly the parties will be given the opportunity to agree on a figure for funds management.
|
Non economic loss |
$ 360,000.00 |
|
Future medical expenses |
$ 95,000.00 |
|
Past out of pocket expenses |
$ 105,919.00 |
|
Future pharmaceutical and equipment expenses |
$ 60,000.00 |
|
C-Leg Prosthesis |
$ 550,000.00 |
|
Future motor vehicle expenses |
$ 3,600.00 |
|
Computer and environmental facilities |
$ 72,338.00 |
|
Future holiday care |
$ 46,350.00 |
|
Housing needs |
$ 295,500.00 |
|
Handyman Assistance |
$ 71,568.00 |
|
Past domestic assistance, attendant care and supervision |
$ 219,450.00 |
|
Future domestic assistance, attendant care and supervision |
$4,252.791.00 |
|
Past economic loss |
$ 64,680.00 |
|
Past superannuation loss |
$ 7,115.00 |
|
Future economic loss |
$ 532,202.00 |
|
Future superannuation loss |
$ 58,542.00 |
|
$6,795,055.00 |
193That figure needs to be adjusted to have regard to the finding of contributory negligence against the plaintiff of 70 percent. When that is done, my provisional assessment of damages for the plaintiff is $2,038.517.00. An amount for funds management will need to be added to that figure.
Conclusion
194The orders which I make are as follows:
(1) Judgment for the defendants.
(2) The plaintiff is to pay the defendants' costs of the proceedings.
195It should be noted that on a contingent basis, should I be found to have been incorrect in my assessment of liability, I would apportion the plaintiff's responsibility for the accident at 70 percent. On the same contingent basis, the damages I would have awarded in favour of the plaintiff had he been successful would have been $2,038,517.00 plus fund management expenses.
196In relation to fund management, I direct the parties to advise the Court before 10 September 2012 as to the agreed figure for funds management. If agreement cannot be reached, each party is to advise the Court by that date of his or their assessment of funds management, together with submissions of not more than one page justifying his or their calculations.
**********
The parties agreed on 3 October 2012 that the amount for fund management was $340,402.00.
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Decision last updated: 10 October 2012