Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Egan v Mangarelli [2013] NSWCA 413
• Hearing dates: 2 August 2013
• Decision date: 05 December 2013
• Before: Barrett JA at [1]; Ward JA at [2]; Tobias AJA at [3].

Decision

1. Appeal dismissed.

2. The appellant to pay the respondents' costs of the appeal.

3. Cross-appeal dismissed.

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

• Catchwords: TORTS - negligence - breach of duty of care - motor vehicle accident - the appellant was travelling on a bicycle and went under a bus - whether the driver breached his duty of care by failing to keep a look-out - Manley v Alexander [2005] HCA 79 considered - whether the driver was paying "reasonable attention" to what was happening on or near the roadway - held that the driver did not breach the duty of care; TORTS - negligence - contributory negligence - whether the trial judge properly compared the degree of the parties culpability and the relative importance of each party's acts in finding the appellant's contributory negligence to be 70 per cent - Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 applied - no error in finding appellant's contributory negligence to be 70 per cent; DAMAGES - torts - negligence - personal injury - whether trial judge erred in allowing cost of certain prosthesis when the appellant was unlikely to use the prosthesis to fullest extent - whether trial judge erred in allowing certain amounts for housing modifications - whether trial judge erred in allowing amounts for past domestic care - whether primary judge failed to discount amount awarded for future domestic care when the appellant was a smoker
• Legislation Cited: Motor Accident Compensation Act 1999 (NSW); Supreme Court Act 1970 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Anikin v Sierra [2004] HCA 64; (2004) 211 ALR 621; (2004) 79 ALJR 452; Bradshaw v McEwans Pty Limited [1951] HCA 480; (1951) 217 ALR 1; Draca v Silva [2012] NSWCA 312; Egan v Mangarelli & Ors [2012] NSWSC 867; Egan v Mangarelli & Ors (No 2) [2012] NSWSC 1226; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552; Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1; Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228; (2005) 80 ALJR 413; Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; Scott v Williamson [2013] NSWCA 124; (2013) 63 MVR 396; Whitney v Dream Developments Pty Limited [2013] NSWCA 188
• Category: Principal judgment
• Parties: Mitchell Joseph William Egan (Appellant/Cross Respondent); Johnny Carmine Mangarelli (First Respondent/First Cross Appellant); Westbus Region 3 Pty Ltd (ACN 054 096 892) (Second Respondent/Second Cross Appellant)
• Representation: Counsel: B M J Toomey QC with H J Marshall SC & P J Frame (Appellant/Cross Respondent); D E Grieve QC with J Gracie (Respondents/Cross Appellants); Solicitors: Slater & Gordon (Appellant/ Cross Respondent); Vardanega Roberts (Respondents/Cross Appellants)
• File Number(s): CA 2012/271017

Decision under appeal

• Jurisdiction: 9111
• Citation: Egan v Mangarelli & Ors [2012] NSWSC 867; Egan v Mangarelli & Ors (No 2) [2012] NSWSC 1226
• Before: Hoeben J
• File Number(s): SC 2010/126606

Judgment

1 BARRETT JA: I have had the advantage of reading in draft the judgment that has been prepared by Tobias AJA. I agree, for the reasons his Honour states, that the orders he proposes should be made. I would particularly endorse his Honour's conclusion that, having regard to the evidence, it could not be found that the first respondent, when putting the bus into motion after taking the passenger on board, was derelict in his duty to give reasonable attention to what was happening on and near the roadway because he did not anticipate that a bicycle on the part of the pathway obscured by the fence might suddenly emerge at speed into the bus's path.

2 WARD JA: I agree, for the reasons set out by Tobias AJA, that the primary judge did not err in concluding that the appellant had not proved his case and therefore that the appeal should be dismissed with costs. I also agree with the conclusions reached by Tobias AJA as to the grounds of cross-appeal, had the appeal succeeded, for the reasons his Honour has given. I agree with the orders proposed by Tobias AJA.

3 TOBIAS AJA: On 1 July 2007 the appellant, who was then aged 16, was seriously injured when the bicycle he was riding allegedly collided with a bus in Bunker Parade, Bonnyrigg, driven by the first respondent and owned and operated by the second respondent. The appellant instituted proceedings against the respondents seeking damages on the basis that the first respondent, and through him the second respondent, was negligent in failing to keep a proper lookout and to apply the brakes of the bus in sufficient time to avoid colliding with the appellant and/or his bicycle.

4 Liability and damages were both in issue. Following 13 hearing days, Hoeben J (as he then was) found in favour of the respondent on the issue of liability: Egan v Mangarelli & Ors [2012] NSWSC 867. In particular, his Honour found that the appellant had failed to establish that the first respondent was not keeping a proper lookout and that he was in breach of the duty which he owed the appellant by not applying the emergency braking system of the bus. His Honour therefore entered judgement in favour of the respondents.

5 Notwithstanding his Honour's finding on liability, he proceeded to consider the issue of contributory negligence as well as damages. He assessed the appellant's contributory negligence at 70 per cent. He assessed the appellant's damages in the sum of $6,795,055 plus funds management, which was later agreed in the sum of $340,402, thus resulting in total damages in the sum of $7,135,457 subject to the reduction of that amount by 70 per cent to reflect the appellant's contributory negligence.

6 An issue also arose with respect to the costs of the proceedings as a consequence of an Offer of Compromise purportedly made pursuant to UCPR r 20.26. In a separate judgment of 17 October 2012 his Honour declined to make a special costs order in favour of the respondents and confirmed his order made in the main proceedings that the appellant pay the respondents' costs of those proceedings: Egan v Mangarelli & Ors (No 2) [2012] NSWSC 1226.

7 The appellant appeals to this Court with respect to the issues of liability and contributory negligence. The respondents have cross-appealed with respect to his Honour's finding that the appellant's evidence as to the manner in which the accident occurred was not deliberately fabricated. They also challenged a number of aspects of his Honour's findings with respect to damages. The final ground of cross-appeal is a challenge to his Honour's findings in his costs judgment. That ground was abandoned as a consequence of the decision of this Court in Whitney v Dream Developments Pty Limited [2013] NSWCA 188.

The Background Facts

8 Bunker Parade at the relevant location is generally aligned north-south but with a slight bend to the left travelling south. The bus the first respondent was driving was travelling in a southerly direction. It came to a stop to pick up a passenger at a bus stop marked by a cement post painted yellow and approximately one metre high and located approximately five metres north of the northern edge of a three metre wide concrete ramp (the ramp). The eastern section of an unnamed pathway (the pathway) is aligned on an east-west axis and intersects with Bunker Parade at the ramp. The pathway is approximately two metres wide until it crosses the footpath on the eastern side of Bunker Parade where it connects to the ramp.

9 A person travelling down the pathway in a westerly direction and intending to cross Bunker Parade would proceed down the ramp to where it meets the roadway and then after crossing the road, would proceed along a continuation of the pathway in a westerly direction on the other side. The ramp allows wheeled vehicles to access the roadway without having to negotiate the cement kerb. A footpath runs along both sides of Bunker Parade and there is a sealed area at the bus stop where the first respondent stopped his bus prior to the accident.

10 A wooden fence 1.8 metres high is located on the north side of the pathway which effectively limits the view of a person proceeding west on the pathway towards any bus located at the bus stop until a point where the fence turns to the north. It also limits the view of the bus driver at the bus stop towards such a person until he or she clears the fence at that point. The distance along the pathway from the fence line where it turns north to the eastern kerb of Bunker Parade at the ramp is 6.7 metres. The width of Bunker Parade at that point is 11 metres.

11 The bus was fitted with a CCTV camera located at the front of the vehicle above the head of the driver. The bus itself was yellow green in colour with a wide windscreen. Its wheelbase was approximately 6.4 metres with a width of approximately 2.5 metres and an overall length of 12.5 metres. The front overhang to the commencement of the front wheels was 2.6 metres.

12 The CCTV footage, to which further reference will be made below, established that the bus came to a stop some short distance (agreed by the experts to be 0.8 metres) to the north of the bus stop post. It remained stationary for approximately 17 seconds whilst a passenger boarded.

13 Shortly before the accident the appellant and his friend, William Aslett (Aslett) who was then aged 14, decided to ride their bicycles to Bonnyrigg Plaza in order to get some lunch. To achieve that objective they rode along the pathway which originated at a park some hundreds of metres to the east of Bunker Parade. The appellant's bicycle was described in the Police COPS report as being a racing bicycle fitted with a mountain bike wheel and tyre to the front which was of smaller diameter than that for which the bicycle was designed as a consequence whereof the front brakes did not make contact with any part of the front wheel. The rear brakes were functioning correctly although the rear tyre was completely bald. The bicycle had a red frame.

14 The appellant's bicycle did not sustain any substantial damage in the incident such as the distortion of its frame or wheel rims as might be expected if it collided with the bus with any force or if it had been driven over by the tyres of the bus. In fact the expert qualified by the respondents, and who was the only expert to examine the bicycle itself, found that it had sustained no damage as a consequence of the incident. There were some minor gouge marks on its handle bars, but was unknown whether those marks were as a result of the incident or were pre-existing. The expert qualified by the appellant, who had only seen photographs of the bicycle, agreed that no damage had been caused to the bicycle although he also gave evidence that he would not have expected any damage to result from what he considered to be a low speed impact.

15 The appellant sustained a catastrophic injury to his right leg which required amputation when it was run over by the front nearside tyre of the bus at a location, the experts agreed, approximately seven metres south of the southern edge of the ramp. In this respect, the appellant's injuries were due to him falling or rolling under the front overhang of the bus with his head and torso facing generally in a westerly direction and his right leg in an easterly direction which resulted in it being squashed by the bus's tyre. He also sustained crush injuries to his torso consistent with him having come into contact with the underneath of the bus.

16 The experts agreed that the bus began to travel over the appellant some time before his leg was run over. At the point where the tyre ran over the appellant's leg the front of the bus would have been located some 9.6 metres south of the southern edge of the ramp due to the 2.6 metre overhang between the front of the bus and the nearside front wheel.

17 The experts disagreed as to the point when the appellant first came into contact with the bus. According to Mr Grant Johnston, the expert civil engineer with expertise in reconstructing motor vehicle accidents, qualified by the appellant, the appellant first came into contact with the bus approximately 1 to 3 metres south of where he entered upon the roadway from the ramp. According to Mr William Bailey, the mechanical engineer with the same expertise as Mr Johnston qualified by the respondents, the first contact between the appellant and the underside of the bus was likely to have occurred somewhere between 1 to 3 metres north of the point where his leg was run over. That point was said to be between 5.4 and 7.4 metres south of the prolongation of the pathway (which I assume to refer to the middle of the ramp).

18 In this context the experts disagreed as to whether the appellant was actually struck by, or collided with, the bus. Mr Johnston's preferred theory was that he collided with the nearside front corner of the bus. That of Mr Bailey took the view that in order to avoid colliding with the bus, the appellant turned south from the pathway or ramp, travelled somewhere between 5.4 and 7.4 metres along the grass verge bordering the concrete kerb to the roadway and then, having lost control of his bicycle, fell from it onto the roadway and tumbled or rolled for a distance in a southerly direction before the front overhang of the bus travelled over the top of him thereby causing him to come into contact with its front underside.

19 Following the accident the appellant's bicycle ended up approximately 9 metres to the south of the southern edge of the ramp. However, as his Honour acknowledged at [8] of his reasons, this might not have been precisely where the bicycle was positioned following the accident as it had been moved by the ambulance officers in order to enable access to be gained to the appellant. However, the experts agreed that the position of the bicycle as shown in the police photographs and as transposed onto an agreed scale plan of the scene, was generally in accord with where they would have expected the bicycle to have came to rest. That location was slightly to the south of the point where the appellant's leg was run over.

20 The experts further agreed on the following facts:

• the rider of a bicycle with the same characteristics as that of the appellant proceeding in a westerly direction along the pathway could begin to obtain a clear view of the front nearside corner of the stationary bus, being located approximately 0.8 metres north of the southern edge of the concrete bus stop, when the rider was approximately 9 metres from the eastern kerb of Bunker Parade and a view of the full front of the bus when the rider was approximately 8 metres from that kerb assuming he or she was positioned reasonably central within the pathway;
• based on the CCTV footage, after the bus had been in motion for 3.6 seconds, its front was located approximately 0.8 metres north of the northern edge of the ramp and at 4.2 seconds, its front was located approximately 0.8 metres south of the northern edge of the ramp. Accordingly, if the appellant had entered the carriage way at the centre point of the ramp where it meets the roadway, less than 4.2 seconds after the bus had commenced to move, the front of the bus could not have reached him and he would not have been run over at that time;
• it was highly probable that the appellant had separated from the bicycle before he commenced to roll under the bus;
• to have reached the location where his leg was run over, the appellant must have travelled with a southerly component of velocity. However, the experts had different opinions regarding potential scenarios as outlined in their respective reports that could have resulted from the limited physical evidence available;
• the distance from the point where the bus was stationary at the bus stop to the prolongation (the middle) of the ramp was approximately 6.7 metres;
• the distance from the bus at its start point to the northern edge of the ramp was approximately 5 metres; and
• there was no damage to the bicycle as a consequence of any contact between it and the bus.

The Pleadings

21 The appellant's case as pleaded in his Amended Statement of Claim filed on 30 November 2011, the seventh day of the hearing, relevantly alleged the following:

7. On 1 July 2007 the plaintiff rode a certain bicycle west upon an unnamed pathway 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 pathway.

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 plaintiffs 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.

The Appellant's Case at Trial Based on the Lay Evidence

22 The appellant's evidence at trial was consistent with the matters alleged in paragraph 7 to 11 (inclusive) of the Amended Statement of Claim. Relevantly, the appellant was adamant that first, when he stopped at the kerb straddling his bicycle, the bus was stationary; secondly, he thought that he could cross Bunker Parade whilst the bus was stationary; thirdly, he started to cross the road walking his bicycle with his feet straddling the frame seeking to poke his head around to ensure that there was no other vehicles coming on the outside of the bus when he heard a roar from its engine. The bus then took off and collided with him whereupon he fell under its front. He denied that when he first saw the bus as he emerged past the fence it was moving.

23 Aslett also gave evidence. According to the COPS report he had told the police that he preceded the appellant down the pathway and as he came to Bunker Parade he slowed right down as he saw the bus stopped at the bus stop with one person boarding. He looked behind him and saw that the appellant was still coming a few metres behind. As the bus was still stationary he decided to ride across. After he had peddled about three revolutions across to the other side of Bunker Parade he heard a thumping noise. He turned around and saw the appellant under the bus rolling as the bus moved forward until it came to a stop.

24 In his statement tendered in evidence as Exhibit F and dated 19 August 2011, Aslett essentially gave the same evidence as he had given to the police. He was absolutely sure the bus was stationary when he himself slowed down and that he had glanced around and could see that the appellant was a few metres behind him and had decided to proceed to cross the road in front of the bus and it was still stationary. As he reached the footpath on the other side of Bunker Parade be heard the engine of the bus as it took off and shortly after he heard a loud thump. He looked back and saw the bus still moving and the driver looking at the offside rear vision mirror. He maintained his denial that the bus was moving when he rode in front of it.

25 The primary judge noted (at [13]) that Aslett was not able to provide much evidence as to how the accident occurred since he did not see it. However, his Honour concluded that his statement in Exhibit F was unreliable to the extent to which it asserted that before he commenced crossing Bunker Parade he observed the appellant to be "a few metres behind me".

26 As noted by his Honour at [18], an important witness in the appellant's case was a Ms Luch^t. Although the accident occurred on 1 July 2007 Ms Ms Luch^t did not give her statement to the police until 8 December 2007. The primary judge relevantly set out her evidence to the police 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 Luch^t, as having seen the collision. Egan escorted police to the address where police spoke with Luch^t.

Luch^t 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.

27 Ms Luch^t also provided a statement to the appellant's solicitors on 1 February 2008 which became Exhibit B. She observed the appellant and Aslett riding towards her on the other side of Bunker Parade. She stated that Aslett rode his bicycle from the pathway to in front of the bus and across the road. The appellant was close behind Aslett but he actually stopped on the eastern side of Bunker Parade at the kerb. He was positioned a few metres in front of the bus. The bus was still stationary when the appellant began to walk across Bunker Parade with the bicycle between his legs. He had nearly reached the centre of the bus when she observed the driver look into his side mirror and pull out from the kerb. At no stage did the driver look forward and to the front of the bus before doing so. The front of the bus then knocked the appellant down to the road. She estimated that there was 1.5 to 2 metres of space between the appellant and the front of the bus.

28 Ms Luch^t made a further statement on 28 September 2011 which became Exhibit C. Although she could not remember with any precision how far the appellant was away from the front of the bus when it started moving, she estimated that it was 1.5 to 2 metres. As the appellant walked his bicycle onto the road the bus took off. She 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. As the bus struck the appellant she remembered screaming and then must have gone into shock as her next recollection was sitting at home at the top step of the stairs leading to her house.

29 In her oral evidence Ms Luch^t stated that the appellant, straddling his bicycle, walked it across the road and was maybe a metre and a half onto the road when she heard the bus motor. She then looked at the bus and observed the driver looking in his right hand side mirror. She then heard a noise like a collision. When asked whether she saw the bus actually hit the appellant she answered in the negative. She stated that as soon as she heard the bus take off she looked at the bus driver and not at the appellant. She therefore did not see the bus hit the appellant.

30 Ms Luch^t was cross-examined in relation to three matters that impacted, so the respondents submitted at trial, upon her credit. The first related to the fact that she had a criminal record: in 1966 she had been convicted of stealing; in 1981 of forging and uttering and in 1995 as an accessory before and after armed robbery. She served 11 months gaol for this last offence.

31 The second matter was that she had instituted proceedings in the District Court against the respondents seeking damages for nervous shock in consequence of what she had seen on 1 July 2007. However, she maintained that she was unaware that she had any claim against the respondents until she went to see Mr Frame, the appellant's solicitor, on 18 February 2008 at his request a week or so after she had provided her statement to the police.

32 The third matter related to how she came to see the police in December 2007. In this respect she was taken to the police station by the appellant's aunt, Tracey, whom she regarded only as an acquaintance. It was Tracey who requested her to go to the police and provide a statement. She did not know how Tracey became aware that she, Ms Luch^t, was a witness to the accident.

33 The first respondent gave evidence which was initially summarised by the primary judge at [24]-[25] of his reasons. His Honour recorded that the bus came to a halt just before the bus stop post to the north of the pathway/ramp. It did so to allow a passenger to board the bus. It was already carrying two other passengers. After the boarding passenger sat down the first respondent checked his offside mirror to make sure there was no other traffic. He had observed a red car but it had come to a halt behind the bus. He said he then looked to the front, saw that the coast was clear and commenced to move his bus away from the kerb. Just as he started to move, Aslett came out from the pathway across the front of the bus to the other side of Bunker Parade. The first respondent 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. At no time did he see the appellant or his bicycle. He brought the bus to a halt but did not apply the brakes in an emergency fashion.

34 On the day following the accident (2 July 2007) the first respondent provided an electronically recorded interview for the police (Exhibit D). The primary judge extracted the relevant parts of that interview at [26] of his reasons part of which I set out below:

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, [it was agreed that the length of the bus was 12.5 metres] 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. 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".

35 At [27] of his reasons the primary judge recorded what he considered to be the relevant parts of the first respondent's oral evidence. He stated that he brought the bus to a halt just before the yellow bus stop concrete post. He opened the door to allow an Asian gentleman to board. After the passenger had sat down he started to move the bus in accordance with the following exchange:

Q. In what direction were you looking when you started the bus to move?

A. First I look in the front, automatically the front, but I look in the mirror to see if any other car was coming on the right.

Q. As the bus started to move, in which direction were you looking?

A. Well, I was looking in the front.

Q. What do you mean by "in the front"?

A. When I started moving, I was looking in the mirror, okay, to see if any other car coming but at the same time I had a clear view of the front.

Q. Could you see anything ahead of you in the roadway?

A. No, there was nobody there, there was - it was clear as anything, it was.

...

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 road his bike out in front of the bus, can you tell us?

A. I would believe about 15, maybe 20, not even that.

...

Q. ... 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." [Note that the overall length of the bus was 12.5 metres]

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.

...

GRIEVE

Q. Yes?

A. The passenger reach his seat so I look on my left to see if any still passenger is behind there running, whatever.

Q. Pausing there, did you see anything when you looked to your left?

A. No.

Q. Did you see any person at all?

A. No, there was nobody there. So-

Q. What did you do then?

A. I look on my right.

Q. Yes?

A. And as I look on my right the road was clear, there was only a car pull up behind me and then I remove the handbrakes and I started moving.

HIS HONOUR

Q. Mr Mangarelli, when you looked on the right are you talking about looking in the mirrors?

A. In the mirrors, sorry, your Honour.

GRIEVE

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. (emphasis added)

36 In cross-examination the first respondent accepted that he was aware that there may be children playing on or near the street as Bonnyrigg was a residential area; he knew the pathway and knew it crossed Bunker Parade just after the bus stop; he knew that there were many people from the Bonnyrigg area that would use the pathway and that he had seen people on many occasions pushing prams, riding bicycles and walking across presumably Bunker Parade.

37 The following further exchanges then occurred:

Q. Do you say you looked to the left-hand side, front left-hand side of the bus as you started to move off?

A. Well, I did must look, yes. I usually do.

Q. No, I am asking you what you did on this day?

A. Yes.

Q. You definitely remember looking to the front left-hand side of the bus towards the laneway?

A. Yes.

Q. Because, I take it, having seen a bicycle travel in front of you moments before, you would be conscious there might be a second one or a third one?

OBJECTION. ALLOWED.

WITNESS: Sorry, how can you see the bicycle? If I am from here to there (indicating), to the barrister, the fence, I cannot see. I can't see nothing what is coming here, the laneway, so in front of me everything is clear.

...

Q. I think you agreed that having seen one bicycle on this Sunday morning you were conscious of the possibility that there may well be others?

A. No.

GRIEVE: I object to that. He didn't agree.

HIS HONOUR: He didn't agree with that.

MARSHALL: He certainly didn't agree with it now.

HIS HONOUR: He didn't agree last time.

MARSHALL: I have done what I am obliged to do.

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.

Q. You didn't put your foot on the brake at that point in time, did you?

A. No.

Q. And you didn't look to your left either, did you?

A. I didn't need to look to the left.

Q. I am not asking you what you needed to do, that is a matter for his Honour?

A. No, I didn't.

Q. But you didn't look to the left?

A. No.

...

Q. I suggest to you that you did not look either ahead of you or to the left of you as you accelerated away from the bus stop?

A. That's not right.

...

Q. See in paragraph 12 you say:

"There was no other pushbike, cyclist or pedestrian movement on or near the road to the sight of the path taken by the bike rider."

A. That's true

Q. And that is at the time the first bike rider crossed your path?

A. Well, I didn't see nobody else, no.

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.

...

A. ... Afterwards, once the boy cross the path in front of me, that's when I was looking in the mirror, the boy went across, and I say

something to myself, including the passenger, and at the same time my eyes went in the front. Looked at the mirror plus the front of the bus.

Q. The front right-hand side of the bus, the western side of the roadway?

A. The right-hand side plus the front.

...

Q. Your focus is to the western side of the roadway, not the eastern side of the roadway, that right?

A. Not to the left, the right at the front.

Q. That's what you mean when you say you are looking to the front?

A. Yes. (Emphasis added)

38 The cross-examiner then took the first respondent through the CCTV footage. It recorded that after he closed the doors he looked in his left wing mirror to see if there were any potential passengers coming or running for the bus. Further, the footage indicated that when the bus commenced to move the first respondent was still looking in his left wing mirror and that although his head was turned towards the mirror he was also looking to the front. Thereafter he turned his head to look at his right wing mirror. Although it was suggested to him that at no stage after he started the bus moving from the bus stop did he look to the left hand side of the road in the direction of the pathway his response was, "Yes, I did".

39 In my view the foregoing evidence establishes, if otherwise accepted, that as the first respondent commenced to move the bus in a forward direction from the bus stop he turned his head to his left to look in his left hand wing mirror and at the same time was able to observe the pathway but saw no one. He then turned back to look in his right mirror as well as looking ahead to ensure that his path was clear. His attention was diverted momentarily by Aslett passing in front of him notwithstanding that the bus was moving and he accepted that after Aslett had passed in front of him he did not look to the left again but only to the front.

40 At [28] his Honour noted that it was common ground that the passenger who called out "Stop stop" was not the passenger who boarded the bus immediately before the accident (who was a Mr Duong). Mr Duong was available to give evidence but neither side called him. However, a statement by Mr Duong recorded in a police notebook on 3 July 2007 was tendered in the appellant's case and became Exhibit M. Mr Duong recorded that after boarding the bus, he had not even sat down when he heard a thumping noise and another passenger who was seated further back on the same side as Mr Duong yelled out "Stop the bus. You hit someone". Mr Duong looked around and that was when he saw the appellant's bicycle on the ground beside the bus. However as his Honour noted at [30] of his reasons, the CCTV footage indicated that the passenger who called out was seated towards the rear of the bus on its off-side rather than its near-side.

41 There was a discrepancy in the evidence of the first respondent between what he said in his police statement and his oral evidence at trial concerning the sequence of events when the passenger called out "stop, stop". At [74] of his reasons, his Honour concluded that the first respondent's statement to the police as to the sequence of events was more reliable having been made the day after the accident and was more consistent with evidence of Mr Duong, namely, that he heard a bang or thumping noise on the left side of the bus followed by the passenger shouting "stop stop" and then feeling something under the bus. His Honour continued at [75]:

That sequence of events also fits more easily with the possible scenario of the [appellant] or the bike coming in contact with the side of the bus and then the bus passing over the [appellant's] leg.

42 At [102] the primary judge found, based on the first respondent's statement to the police which he accepted, that the "bang" on the left side of the bus, the passenger calling "stop stop" and the bump which his Honour found (at [185]) to be the front tyre passing over the appellant's leg occurred almost contemporaneously. This finding was not challenged on the appeal.

The CCTV Footage

43 As acknowledged by the primary judge at [32] of his reasons, an important piece of evidence was CCTV footage recovered from the bus by the police. That footage exposed 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.

44 An initially controversial part of the CCTV footage was the conclusion drawn by Mr Bailey that the movement of Aslett across the front of the bus was reflected in a signboard located behind the bus driver. At [40] his Honour concluded that he was satisfied that the moving object reflected in the sign board was Aslett riding his bicycle across Bunker Parade. This finding was challenged in Ground 4 of the Grounds of Appeal but in his oral submissions in reply on the appeal senior counsel for the appellant conceded that the reflected image was in fact that of Aslett. On that basis the experts were agreed that when Aslett's image was last visible on the CCTV footage as he crossed in front of the bus, it was travelling at approximately 6 kilometres per hour.

45 Mr Bailey prepared an analysis of the movements of the bus by reference to the street geography and set it out in a spreadsheet which Mr Johnston accepted was accurate (the spreadsheet). Mr Bailey took zero seconds as the start point for the movement of the bus.

46 At [35] of his reasons his Honour set out what he regarded as useful information to emerge from that process which, when compared to the spreadsheet, is not entirely accurate. However, I set out below the information recorded by his Honour corrected by reference to the spreadsheet and to the matters agreed by the experts in their responses to a series of questions dated 28 October 2011 (the October questions) to which they responded in writing on 24 November 2011:

0.00 seconds	Front of bus 5.2 metres from northern edge of the concrete ramp	Bus at start point
2.34 seconds	Aslett's reflection first seen, bus travelling at approximately 5.1 kilometres per hour	2 metres from start point
2.7 seconds	Aslett's reflection last seen, bus travelling at approximately 5.8 kilometres per hour	2.5 metres from start point and 2.7 metres from the northern edge of the concrete ramp
3.96 seconds	Front of bus reaches northern edge of the concrete ramp at a speed of between 8 and 9 kilometres per hour	5.2 metres from the start point
4.23 seconds	Northern edge of the concrete ramp closely aligned with lower edge of nearside door window of bus	6.2 metres from the start point
5.04 seconds	Front of bus passes southern edge of concrete ramp at speed of 12 kilometres per hour	8.2 metres from the start point
5.22 seconds	Southern edge of concrete ramp closely aligned with the lower edge of nearside door window	9.1 metres from the 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 the start point
6.20 seconds	Passenger turns head	13.2 metres from the start point
6.84 seconds	Rear cycle wheel first visible from front door window (bicycle is lying on its right side)	16.1 metres from the start point and 9.3 metres south of the centre of concrete ramp but note that the experts agreed that the appellant would have fallen under the front of the bus somewhere between 5.4 to 7.4 metres south of the centre of the ramp
7.2 seconds	Front nearside wheel of bus passes over plaintiff's leg	approximately 17.9 metres from the start point and 9.4 metres from the southern edge of the concrete ramp
7.2 - 7.38 seconds	Driver depressed brake pedal which caused suspension seat to visible rise, relative to the bulkhead behind him	17.9 metres from the start point
10.2 seconds	Bus stopped	23.9 metres from the start point

47 In their joint response to the October questions, the experts agreed on the following further matters:

• the appellant's bicycle had fallen to the ground before it first became visible in the CCTV footage;
• the bicycle was moving (on its side) in a southerly direction when it was first seen on the CCTV footage;
• the bicycle moved approximately 1.2 metres from the position where it was first seen on the CCTV footage to its point of rest;
• at the time the bicycle first became visible in the CCTV footage the appellant was located beneath the front overhang of the bus and nearing the front nearside tyre: at this point the front of the bus was 9.3 metres south of the centre of the ramp or 7.8 metres south of the southern edge of the ramp;
• when the bicycle was first seen on the CCTV footage the appellant was probably still moving slowly in a generally southward direction but at this time he was prone on the roadway with his torso and left leg more centrally located in the area between and ahead of the front tyres then his right leg which was run over;
• when the rear wheel of the bicycle is first seen on the CCTV footage the appellant's body was positioned below the front overhang of the bus probably in contact with its underside;
• the appellant's leg was run over 7.2 seconds after the bus moved from its start point which is 0.3 seconds after the rear wheel of the bicycle first became visible in the CCTV footage; it had travelled a distance of 17.8 metres from the start point;
• there is no physical evidence to indicate the location of the appellant at the time Aslett cleared the path of the bus.

Did the Appellant's Bicycle Come into Contact with the Bus and, if so Where and When?

(a) The Case as Pleaded

48 As already observed the experts agreed that if the bicycle came into contact with the bus no damage was caused to it. At [42] the primary judge noted that the bicycle was examined by Mr Bailey but not Mr Johnston. The former found no signs of damage on the bicycle except some gouge marks on the offside handle bar. Specifically, there were no sign of any yellow paint transfer which could be associated with contact with the bus and no signs of an impact between the bus and the red frame of the bicycle.

49 An examination of the bus by Senior Constable Duane who attended the scene, revealed what can only be described as a smudge of red paint in one of the scratches on the front nearside corner of the bus. In her evidence, Senior Constable Duane stated that she formed the view that that was the point of impact between the bus and the bicycle. It was Mr Johnston's view, which he maintained, that the bicycle and/or the appellant sustained a low speed impact with the front nearside corner of the bus 1 to 3 metres south of the prolongation of the pathway. Mr Bailey rejected this theory upon the basis that visible damage and marking must have occurred to the bus if there had been a significant collision between a bus travelling at between 11 and 14 kilometres per hour and the bicycle but there was an absence of any physical evidence to indicate that there was any such collision.

50 So far as the red mark relied upon by Senior Constable Duane was concerned, Mr Bailey in his Supplementary Report of 13 March 2012 set out four reasons for disagreeing with the police conclusion:

• no spectrographic or chemical comparison was made of the paint on the bicycle and the red mark on the bus so that the latter may have had another origin;
• the red mark appeared to be a transfer of red material from an object that came into glancing contact with the bus because the contact did not cause any fracture or indentation of the surface of the relevant panel of the bus;
• the red mark was located near the top of the outer edge of the slightly protruding bumper bar moulding of the front nearside corner of the bus. Had the red painted frame of the bicycle made the red mark referred to by the police, as the front edge of the front nearside door window of the bus was approximately 0.5 metres rearward of the red mark, then the bicycle would have been seen in the CCTV footage prior to 6.84 seconds from the start point at which time it was lying on its right side and away from the bus near the kerb with its wheel in the gutter;
• if the bicycle had made contact with the bus where the red mark is seen, the glancing contact with the side of the bumper bar would, if anything, have deflected the bicycle eastwards away from the side of the bus with little potential to push it southwards towards the location where it ultimately came to rest.

51 Although Mr Johnston stated in his oral evidence, given concurrently with Mr Bailey, that there was some evidence of potential contact between the bicycle and the bus as identified by the police officer with some possible red paint transfer, he could not say for certain that such transfer occurred particularly because the impact speed would be so low on the appellant's case, about walking speed, that he would not necessarily anticipate damage to either the bicycle or the bus.

52 As I have already noted, the appellant's evidence was consistent with the allegations contained in paragraphs 7 to 11 of the Amended Statement of Claim. At [48] of his reasons the primary judge concluded that although he was not prepared to find that the appellant deliberately set out to deceive the Court, he did find that his evidence as to how the accident occurred was unreliable and should be rejected. Ground 2 of the Grounds of Appeal alleged that his Honour erred in rejecting the appellant's evidence when it was in part corroborated by other witnesses and, in particular, by Ms Luch^t. However, the first of the October questions to which the experts made a joint response was whether they agreed that the accident could not conceivably have occurred in the manner set out in the original Statement of Claim.

53 They responded that it was agreed that the accident could not have occurred in the manner set out in the Statement of Claim if that document provided the totality of the circumstances. In this respect Mr Johnston added that it was conceivable that the descriptions in the Statement of Claim could be consistent with elements of other scenarios that could be postulated. Mr Bailey stated that with reference to paragraphs 8 to 11 of the Statement of Claim the incident could not have occurred as there described for the following reasons:

a) Examination of the site, bus and bike by police and clear photos of same, failed 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 plaintiffs bike is first seen lying with its nearside (i.e. 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 Plaintiffs leg was run over is too far south to be consistent with an impact per the Statement of Claim.

Mr Johnston agreed with (b) and (c) but not (a) as a low impact collision would not necessarily have left any physical evidence. By low impact he was apparently referring to the appellant walking straddling his bicycle (as he alleged) and the bus travelling at between 11 to 14 kph as per the spreadsheet.

54 With respect to the last matter the experts further agreed in the following terms recorded by his Honour at [44] of his reasons:

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.

55 Furthermore as recorded by his Honour at [45] in relation to the appellant's direction of travel when he commenced to roll under the bus, the experts agreed that:

[t]o 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.

56 In rejecting the appellant's version of events the primary judge noted (at [50]) that

[b]oth 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.

At [51] his Honour noted that Mr Johnston accepted the proposition in the last sentence.

57 As originally pleaded the appellant's case was that he had walked his bicycle onto the carriage way at Bunker Parade at a time when the bus was stationary but that without warning it then pulled out from the kerb and proceeded towards him whereby they came into collision. As Mr Johnston agreed in his oral evidence that the bus could not have been stationary when the appellant proceeded to walk the bicycle in front of it, the Statement of Claim was amended to add paragraph 11A. The effect of that amendment was that it was now accepted that the bus had commenced to move south along Bunker Parade at the time, and presumably before, the appellant road his bicycle onto the carriage way. Assuming that the appellant did so from the centre of the ramp and that at that point the bus had travelled, say, 2 metres from the start point, then at that time the bus was approximately 4.7 metres from the appellant. The appellant's case, therefore, was that had the first respondent looked to his left he would have seen the appellant and, according to his evidence, could have applied the brakes and pulled up within 2 metres thus avoiding any collision.

58 The difficulty with the foregoing allegation is that on the scenario now postulated by paragraph 11A of the Amended Statement of Claim, the first respondent ought to have seen the appellant as he moved onto the carriage way as at that point he was directly in front of the bus. As will appear, the case ultimately made by the appellant, at least on the appeal, was that the first respondent was in breach of his duty of care to the appellant by failing to look to his left and to observe him on that section of the pathway between the fence and the ramp. Yet, on the basis of paragraph 11A of the Amended Statement of Claim the first respondent ought to have seen the appellant by simply looking straight ahead after he commenced to move. The point, however, is that the first respondent was adamant in his evidence, and the primary judge accepted, that he did look straight ahead and his path was clear. The view ahead in his peripheral vision would have revealed the appellant if he had been stopped, as he said he had, at the ramp before moving onto the roadway. No case was sought to be made to the effect that the first respondent was in breach of his duty by failing to observe the appellant on the carriage way in front of the bus.

59 Having rejected the evidence of the appellant as to how he came into collision with the bus, his Honour then dealt with the evidence of Ms Luch^t. At [56] he noted that her evidence fully supported the version of events given by the appellant and for the same reasons was inconsistent with the only objective evidence which the Court had concerning the accident. His Honour also noted that there were other features that led to him to reject her evidence: in particular, her demeanour when giving evidence was not impressive and she was quite uneasy and was needlessly defensive in some of her responses.

60 Ground 3 of the Grounds of Appeal alleges that his Honour erred in rejecting Ms Luch^t's evidence given that it was consistent with that of the appellant. However, in the light of the expert evidence not only was his Honour correct in rejecting the evidence of the appellant but also of that of Ms Luch^t. It was even inconsistent with the various theories of how the accident occurred advanced by Mr Johnston. Accordingly, the primary judge concluded, correctly in my view, that the appellant and/or his bicycle had not collided with the bus in the manner pleaded; that is, there was no impact with the front of the bus. Such a finding was consistent with the possibility, suggested by Mr Bailey, that there may have been a low speed impact with the side of the bus but with little, if any, rebound in an easterly direction.

(b) The Alternative Scenarios Postulated by the Experts

61 In his report of 3 May 2011 Mr Bailey postulated four possible scenarios as to how the accident happened. Scenario A was the version given by the appellant in evidence which was rejected by the primary judge and ultimately, by both experts. Scenario B is reflected in paragraph 11A of the Amended Statement of Claim, namely, that the bus was already moving and the appellant was attempting to stop when he reached the ramp but continued a short distance onto the roadway ahead of the bus. He was then struck by the bus, pushed to the roadway, rolled under the front overhang of the bus and sustained his injuries.

62 Mr Bailey rejected this scenario as a potential impact on the roadway immediately adjoining the ramp was inconsistent with a number of matters including lack of damage to the bicycle which would have had to occur for it to have been projected approximately 9 metres (presumably from the middle of the ramp) to its rest position on its offside in the gutter. Furthermore, the orientation of the bicycle on its offside was inconsistent with Scenario B which would have resulted in the bicycle being pushed onto its nearside and very likely have travelled under the bus, which did not occur. Mr Johnston responded to Scenario B by expressing the view that it could not be rejected particularly if one accepted that the rear passenger responded to an impact and commenced to yell out before the other passenger (Mr Duong) looked up in which event the impact must have been at or near the point of the invert, being a reference to the ramp.

63 Scenario C contemplated the appellant falling from his bicycle prior to reaching the kerb which caused him to slide/tumble/roll over the ramp to just in front of, or under, the front nearside of the bus. Mr Bailey rejected this scenario and Mr Johnston agreed that it was "not likely". It may therefore be put to one side.

64 Scenario D was not rejected by Mr Bailey as it was compatible with the available evidence. It contemplated the appellant falling from his bicycle onto the roadway ahead of the bus prior to reaching the kerb and being subsequently run over. It was explained by Mr Bailey on the basis that the only visible damage to the bicycle was vertically aligned gouge marks on the offside handle bar which was consistent with the bicycle falling to its offside if the appellant veered left (that is towards the south) in an attempt to avoid the bus or for some other reason and the bicycle overturned to its right (that is onto its offside). Such a fall was consistent with the handle-bars contacting the roadway near where the bicycle came to rest in the position seen in the CCTV footage and in the police photographs.

65 In Mr Bailey's view, the absence of contact marks or damage to the bus and the absence of any apparent response to noise which would be likely if contact had occurred between the bicycle and the appellant with the front or nearside front corner of the bus, were both consistent with the appellant moving directly onto the roadway prior to contact with the bus. This would occur if he fell from his bicycle as it overturned onto its offside while it was on the verge near the kerb. The appellant would be projected onto the roadway largely "head first" and ahead of the bus where his legs could be closer to the kerb and within the path of the front nearside wheel of the bus.

66 Thus if he fell to the side of the bicycle, it would be likely that the appellant would have landed further north on the roadway than the bicycle although he may have rolled a short distance further south before contact with the front nearside tyre because of the limited vertical clearance of the underside of the bus. The appellant's injuries were of a crushing nature which would occur if he rolled whilst under the bus and there was evidence of biological material on the underside of the bus confirming that this did occur. Accordingly, Mr Bailey concluded that the most probable manner in which the incident occurred was when the appellant's bicycle overturned onto its offside whilst it was on the verge, near the kerb and located to the south of the ramp. This did not involve any contact with the bus prior to it travelling over the appellant's leg after he had fallen to the roadway at or near the position where his right leg was run over which was approximately 7 metres south of the southern edge of the ramp.

67 Mr Johnston did not accept Scenario D as the only possible explanation of the accident as there was no actual evidence to support it other than deductions from the absence of evidence. Further this scenario was not consistent with the identification of a previous impact prior to the appellant's leg being run over. According to Mr Johnston the available evidence suggested that a previous impact was identified by the bus driver, rear passenger and suggested by the middle passenger (Mr Duong) stating that he heard the rear passenger yell out prior the appellant being run over. There is some doubt as to whether these assertions as to the sequence of events are accurate: see, for instance, the statement of Mr Duong referred to at [40] above.

68 Mr Bailey's conclusion based on the physical evidence including the CCTV footage was stated by him as follows:

[The correct] analysis of the physical evidence, including the CCTV footage, indicates the [the first respondent] checked to the left and right of the bus before moving off. Given the most likely scenario was that the [appellant] rode towards the kerb at an unknown speed before veering to his left and falling from the bike, it was probable there were no views of the [appellant] available to the [the first respondent] at times when it was relevant for his gaze to be directed towards the front/nearside. In addition, [the] physical configuration of the bus restricts a drivers view towards a person lying on the roadway within 2 to 3 metres of the front of the bus.

69 In his Supplementary Report of 13 March 2012 Mr Bailey expressed the view based on the available physical evidence that the appellant was probably more than 22 metres behind Aslett and that the front of the bus had reached the prolongation of the pathway (in other words, the ramp) at about the same time the appellant reached the corner of the fence. In these circumstances the first respondent could not reasonably have seen the appellant or his bicycle prior to the impact that occurred under the bus.

70 The evidence relied upon by Mr Bailey to support the foregoing proposition was as follows. First, the CCTV footage revealed the bus stopped approximately 17 seconds before it moved off. Secondly, assuming it took the appellant 3 to 5 seconds to travel to the kerb, stop and then dismount, if he saw the bus stop just as he passed the fence then he would have had to wait 12 to14 seconds before dismounting before he left the kerb if he started walking at the same moment the bus moved off as he asserted. If he came into contact with the nearside front of the bus at the prolongation of the pathway or a few metres beyond as Mr Johnston suggested, the appellant would have had to leave the kerb when the bus was already close to him. Such a scenario would mean that the bus had already been moving for more than 4 seconds and, according to the spreadsheet, would have travelled approximately 5.5 metres which would place the front of the bus just to the south of the northern edge of the ramp.

71 In Mr Bailey's opinion it was not conceivable that the appellant came into collision with the nearside front corner of the bus at 4.9 to 5.8 seconds after the start point because, amongst other matters,

• the bicycle and the appellant would be partly visible through the front door window in the CCTV footage but neither are visible in that time frame;
• the bicycle would be projected with a velocity component away (that is, eastward) from the side of the bus as well as along its path (that is, southward) and the footage from 6.84 seconds (when the bicycle is first visible on the CCTV footage) onwards indicates that this did not occur;
• the bicycle would be projected to fall onto its left side and CCTV footage indicates the opposite occurred; and
• the appellant would be projected with a velocity component away (that is, eastward) from the side of the bus as well as along its path (that is, southward) which would generally throw him towards the gutter whereas his injuries indicate he must have travelled in a generally westerly or south-westerly direction under the front overhang of the bus. His injuries indicate he rolled laterally when his head was nearer the offside and his legs toward the nearside of the bus.

72 At the end of the day, however, Mr Bailey pointed out that there were too many unknowns being the speed of the appellant's bicycle; the speed of Aslett's bicycle prior to 6.84 seconds from the start point where the appellant's bicycle is first visible on the CCTV footage; the distance between Aslett and the appellant's bicycles on the pathway at the relevant time; the time (in relation to when the bus moved off) that the appellant moved west of the fence; and finally, what pre-impact manoeuvres were undertaken by the appellant. The only material events that were illustrated by Mr Bailey in scale plans that were in accordance with the physical evidence were first, the bus moving off; secondly, Aslett being near the centre of the road at 2.34 seconds from the start point (but not how he got there); and thirdly, the front nearside wheel of the bus reaching the bloodstain on the roadway caused by the appellant's leg being run over 7.2 seconds from the start point which was approximately 9.4 metres from the southern edge of the ramp.

73 According to Mr Bailey it was therefore clear that the appellant was not travelling approximately 3 metres behind Aslett as the appellant alleged. The most probable explanation of what was a dynamic event was that the appellant passed the western corner of the fence a short time before the bus had travelled 16 metres in 6.84 seconds (that is, not a short time before 2.34 seconds) so that the bus was already blocking his path. He then swerved left and the bicycle overturned onto its right side and both he and the bicycle were projected/slid onto the roadway with the appellant rolling under the front overhang of the bus at or shortly before the bicycle is seen adjacent to the nearside of the bus at 6.84 seconds from the start point, 0.3 seconds before his leg was run over. This preferred theory of Mr Bailey was completely at odds with Mr Johnston's impact theory.

74 In his report dated 24 October 2011 Mr Johnston disagreed with Mr Bailey's conclusion as to the most likely scenario. Furthermore, he considered that that was not even a possible scenario if it be accepted that an initial impact occurred presumably with the nearside front corner of the bus] which was responded to by the rear passenger shouting "stop stop" before the bus subsequently ran over the appellant's leg.

75 It is important to note that Mr Johnston's disagreement with Mr Bailey's most likely scenario was predicated upon the fact that it was the lack of evidence of a collision, as opposed to positive evidence of a collision, which had led Mr Bailey to conclude that there was no collision and that the appellant fell and rolled under the bus well to the south of the ramp. On the other hand Mr Johnston's preferred scenario was, so he said, based on his experience with real world crashes and crash testing which apparently established that the absence of physical evidence in a low speed impact was not an indication that an impact had not occurred. As I understand what Mr Johnston was saying, the absence of physical evidence did not mean that there was no low impact collision between the bicycle and the bus but it also did not prove that there was such a collision.

(c) The Joint Report of the Experts in Response to the October Questions

76 It was in the foregoing context that Mr Johnston in his response to Question 38 of the October questions expressed the opinion that the bicycle and/or the appellant sustained a low speed impact with the front nearside corner of the bus whereas Mr Bailey concluded that there was no physical evidence to indicate that any significant contact occurred between the bicycle and the bus. The damage to the offside handlebar of the bicycle was consistent with it coming into contact with the roadway in the orientation in which it was seen in the CCTV footage and at rest. In particular, no part of the bicycle or the appellant was visible in the front nearside window of the bus door and as that window is located approximately 0.5 metres from the front of the bus, if the appellant had come into contact with the front nearside corner of the bus it would have been picked up on the CCTV footage notwithstanding that that footage did not cover a small area at the lower front corner of the window of the door.

77 In response to Question 45 Mr Johnston accepted that the appellant must have moved west to enter the roadway. However, he accepted that the appellant had probably deviated to the south shortly after entering the roadway most probably to avoid the approaching bus. He was unable to quantify the speed of the bus at that point but expressed the view that it was likely to have been slow.

78 In response to the same question Mr Bailey stated that it was not directly known how the appellant reached the point at which his leg was run over. However, the absence of evidence of physical contact between the front of the bus on the one hand and the bicycle and/or the appellant on the other was consistent with the latter falling from his bicycle to his right (that is, offside) onto to the roadway at a time when he was attempting to veer, or had veered, towards the south. His speed was not known directly but was such that he was unable to remain in control of his bicycle.

79 In response to Question 46 which sought the extent, if any, by which the appellant was likely to have been carried, projected or otherwise moved from the point at which he first made contact with the bus to the point at which his leg was run over, Mr Johnston opined that there was an initial fall/throw distance to the south after the appellant sustained a low speed impact with the front nearside corner of the bus. Following the initial airborne component there is a further projection to the south as a result of undercarriage interaction. The appellant's leg being run over by the nearside front wheel of the bus was consistent with the final elements of Mr Bailey's description of what occurred in response to the same question.

80 That response of Mr Bailey was that the absence of evidence that an impact had occurred between the front of the bus and either the appellant or the bicycle was consistent with the former falling from the bicycle and tumbling/rolling for a distance on the roadway in a generally southerly direction before the front overhang of the bus travelled over the top of him when it was likely that there was contact with the underside of the overhang that moved the appellant a short distance further south.

81 Question 51 asked what, if any, was the significance of the position of the bicycle and/or the fact that it came to rest while lying on its right side. Mr Johnston responded that the relevant significance was that the rider had been redirected to the south probably by a combination of his own evasive attempt and a minor impact with the bus. The fact that the bicycle is moving towards the south when first seen on the CCTV footage (some 16 metres from the start point and approximately 7.5 metres from the southern edge of the ramp) was indicative of this velocity towards the south attained by it. After this redirection the rider has fallen to the right of the bicycle into the path of the bus. However, in response to Question 55 the experts agreed that at the time the bicycle was first visible in the CCTV footage, the appellant was lying prone beneath the front overhang of the bus and nearing the front nearside tyre.

82 Mr Bailey's response to Question 51 was that the significance of the bicycle being located within approximately 1 to 1.5 metres of its rest position and to the nearside of the bus and not in visible contact with the bus, was that such a location was consistent with the bicycle falling to the kerb on its offside without contacting the bus following loss of control and separation from the rider.

83 It will be appreciated from the foregoing and, in particular, from Mr Johnston's response to Question 51, that the appellant could only have ended up where he did by a combination of his own evasive attempt and what was described as a "minor impact by the bus" which apparently projected him to the south as distinct from the east. Yet there was no evidence from the appellant to the effect that he attempted to evade the bus either before or after he allegedly collided with it. Furthermore, the theory of Mr Johnston rests entirely upon acceptance of the proposition that the appellant collided with the front nearside corner of the bus within 1 to 1.5 metres to the south of the point where he entered upon the carriage way from the ramp.

84 In asserting that there was such an impact it is to be noted that Mr Johnston did not rely, as had the police, on the red paint mark on the front corner of the bus. Mr Johnston's theory was that there was no physical evidence of contact because the impact was so minor or slight. This is contrary to the case that the appellant's made at trial which both experts rejected. Importantly, Mr Johnston's theory does not depend upon the acceptance of the evidence of either the appellant or Ms Luch^t. Accordingly, the appellant's challenge to his Honour's rejection of the evidence of those two witnesses becomes moot.

(d) The Primary Judge's Findings with Respect to the Experts

85 At [67] of his reasons the primary judge remarked that the rejection of the evidence of the appellant and Ms Luch^t severely limited the factual findings which could be made. His Honour correctly observed that the experts were divided as to whether the front of the bus actually came into contact with the bicycle or, for that matter, the appellant. He recorded that Mr Johnston was of the opinion that it could have been a low speed impact between the front of the bus and the bicycle causing the appellant to fall in front of the bus and the bicycle to end up against the kerb with its wheels next to the kerb and with the offside handle-bar resting on the road. He then noted that Mr Bailey rejected such contact, his preferred theory being that as the appellant emerged from the pathway the bus was in front of him and he turned to the south in order to avoid it and in doing so fell off the bicycle in front of the bus which would account for the position of the bicycle and the fact that it was undamaged.

86 At [68] his Honour concluded that is was not possible to resolve the question of whether or not the bicycle came into contact with the front of the bus. He accepted the cogent reasons put forward by both experts in support of their positions. He was, however, firmly of the opinion that the red paint smudge on the front nearside corner of the bus was unlikely to have been the product of contact between the bus and the bicycle. As already noted, Mr Johnston did not rely on that paint smudge in coming to his conclusion that as a matter of probability there was a minor impact between the appellant/bicycle and the front nearside corner of the bus. Although the appellant in Ground 8 of his Grounds of Appeal asserts that the primary judge erred in finding that it could not be established that the presence of red paint on the bus in a position where an impact was likely to have occurred was unrelated to any impact with the appellant's red bicycle, in my view such a challenge is unsustainable given the evidence of the appellant's own expert.

87 At [69] the primary judge noted that in their joint evidence the experts accepted that although they did not agree on the mechanism by which the appellant came to be injured, they both agreed that the appellant's bicycle and the appellant definitely had a southward movement for otherwise there was no way of explaining the actual point where his leg was run over which was 7 metres to the south of the southern edge of the ramp. In fact, as his Honour recorded, Mr Johnston accepted that the actual point where the appellant's leg was injured was about 8 metres (presumably from the middle of the ramp) so that the appellant has deliberately turned away from the bus in order to avoid it. The critical question was the position of the bus when he did so.

88 The primary judge observed (at [70]) that the state of the evidence was such that Mr Johnston was not able to formulate a theory as to exactly how the appellant's accident occurred. He accepted that Mr Bailey's theory was consistent with the known evidence but noted that there were other scenarios which were also consistent with that evidence. Nevertheless on a number of occasions, as his Honour then recorded, Mr Johnston stressed the paucity of available evidence. His Honour then set out examples which are worth repeating:

"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." [Black 2 - 513.32]

"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." [Black 2 - 518.39]

"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." [Black 2 - 621.31]

"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." [Black 2 - 623.6]

"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." [Black 2 - 623.44]

"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." [Black 2 - 641.42] (Emphasis added)

89 Having considered the evidence of the first respondent (see [35] above), at [77] his Honour found the following facts 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.

90 Comparing the above findings with Mr Bailey's agreed spreadsheet taken from the CCTV footage, there are some minor discrepancies in some of the distances adopted by his Honour. Some are too minor to mention but one to which I would refer is finding 7 in which the reference to 8.4 metres should, in my view, be 9.4 metres. Further, to finding 10 can be added words "at a point approximately 7 metres south of the southern edge of the concrete ramp".

91 At [78] his Honour made the further finding that the position of the bicycle as seen in the CCTV footage, its known final resting place and the point on the road where the wheel of the bus ran over the appellant's leg, indicated that the appellant had moved to the south of the ramp for some distance. Although the extent of that movement to the south was not known, the estimates of the experts was between 1 and 5 metres. However, I interpolate that the experts agreed that the appellant's leg was run over by the nearside front tyre approximately 7 metres south of the southern edge of the ramp. At that point the front of the bus, due to its 2.6 metre overhang, would be 9.4 metres south of the southern edge of the ramp. Upon the basis that the estimate of 1 metre was that of Mr Johnston and 5 metres that of Mr Bailey, the latter seems to be an underestimate and the former out of line with the known physical evidence.

92 His Honour further inferred (at [79]) from the movement by the appellant to the south at that the time when he emerged from behind the fence line the bus was moving in a southerly direction. Without such an inference it would be difficult to explain why the appellant would have moved some distance to the south rather than simply following Aslett across the road. None of the above findings was the subject of challenge on the appeal.

93 What was subject to challenge in Grounds 6, 7, and 8 of the Grounds of Appeal was the primary judge's findings at [80] that the following could not be established from the evidence:

i. How far the [appellant] was behind Mr Aslett as Mr Aslett approached Bunker Parade.

ii. What speed the [appellant] was travelling at.

iii. Where the bus was at the time when the [appellant] 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 [appellant] emerged from behind the fence line.

v. The movements of the [appellant] 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 [appellant] and/or the bike and the bus between the [appellant] emerging from behind the fence line and the 6.84 second mark.

vii. The precise orientation of the [appellant's] body beneath the bus at the point when the nearside front wheel of the bus went over his right leg.

To clarify point vi. one can add at the end of the sentence the words "when the front of the bus was 7.9 metres to the south of the southern edge of the concrete ramp".

94 At [81] of his reasons his Honour observed that the experts postulated a number of scenarios which would account for the appellant moving from the pathway to where he ended up under the bus and which were consistent with the known facts. At least one of those scenarios (Scenario D) was consistent with there being no breach of duty on the part of the first respondent. On the other hand there was one scenario (Scenario B) which was, at least in part, adopted by Mr Johnston, which may be consistent with such a breach. His Honour then noted that Mr Bailey was definite that the evidence favoured his theory which was consistent with no breach whereas 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. There is no challenge to this observation with respect to Mr Johnston.

95 Notwithstanding the foregoing, from his responses to the October questions it would appear that Mr Johnston's preferred option was that the appellant probably deviated to the south approximately 1 to 3 metres after he entered upon the roadway from the ramp most probably to avoid the approaching bus whereupon he collided with its front nearside corner which, after the initial airborne component, further projected the appellant to the south notwithstanding that it was a low level impact.

96 The difficulty with this scenario is that upon the assumption that the appellant entered upon the carriage way in the middle of the ramp and assuming the impact with the bus took place 3 metres to the south of that point, it is difficult to explain how his leg came to be run over a further 5.5 metres to the south. Mr Johnston did not, as I read his evidence, seek to provide an explanation with respect to this conundrum. There is the further difficulty referred to by Mr Bailey (see [76] above) that if there was an impact in accordance with Mr Johnston's theory then it is more likely than not it would have been recorded on the CCTV footage.

97 It was probably in the foregoing context that when Mr Johnston gave his oral evidence concurrently with that of Mr Bailey he stated, with Mr Bailey in agreement, that there was a gap in the evidence from the position of the appellant on the pathway (albeit unknown) to the point of impact which could not be filled and that although each expert had hypothesized how to fill that gap neither could say with any degree of confidence that any particular hypothesis should be adopted as the most likely: see those parts of Mr Johnston's evidence recorded at [88] above which I have emphasised. Neither could point to a piece of evidence that could convince the other to fill the gap so that the gap remained and it was a question as to whether his Honour could fill it.

98 Mr Bailey's response was that he generally agreed with Mr Johnston on this issue although he pointed to two pieces of evidence, namely, the bicycle being seen at 6.84 seconds from the start point when the bus was 8.5 metres south of the ramp and the point where the appellant's leg was run over some 7 metres south of the southern edge of the ramp. Those factors together with the movement of the bicycle and its position at rest lying on its right side pointing in a southerly direction were strongly associated, according to Mr Bailey, with the appellant's loss of control of the bicycle occurring close to the point where his leg was run over, rather than close to the ramp, the distance between the two points being, as I have indicated, some 7 metres.

99 It is in the foregoing context that the relevant principles to be applied in a civil matter where direct proof of how an accident happened is not available were articulated by the High Court in Bradshaw v McEwans Pty Limited (1951) 217 ALR 1 at 5 and Luxton v Vines (1952) 85 CLR 352 at 358, 360. At [98] the primary judge recorded the following passages from the judgment of the plurality in Luxton v Vines:

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 (p358)

...

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. (at p360)

100 In my view the foregoing principles apply to the present case in the light of the expert evidence given the rejection of the lay evidence. If any reasonable inference is to be drawn that is beyond conjecture, then in my view that based on the preferred theory of Mr Bailey is the more probable though whether one could describe the inference as "definite" is more problematic. However, on this basis the appellant and/or his bicycle did not collide with the front nearside corner of the bus as Mr Johnston asserted. If that is the case, then the first respondent was not in breach of his duty of care. It will be necessary to further elaborate upon this conclusion in dealing in more detail with the appellant's submissions on the appeal.

101 The primary judge was conscious of the foregoing when at [82] he observed that once the appellant's version of how the accident occurred is rejected, it became very difficult for him to establish negligence. He continued:

The task becomes even more difficult if the [appellant] is unable to establish, on the balance of probabilities, how exactly the accident occurred. In that situation, what the [appellant] has to establish is that regardless of which scenario is available to explain the accident, [the first respondent] and therefore the [respondents], would be liable in negligence.

In my view a finding as to how the accident occurred, whether by direct evidence or by inference from the known facts, is essential if it is to be established that the first respondent failed to keep a proper lookout. To that issue I now turn.

The Primary Judge's Findings with Respect to the Appellant's Case at Trial

102 At trial the appellant put his case on two bases. The first was based on the proposition that the first respondent failed to keep a proper lookout. The second, alternative basis, was that rather than bringing the bus to a gradual halt when he heard a passenger shouting "stop stop", the first respondent should have responded by an emergency application of the brakes of the bus. The primary judge rejected both bases but only the first was challenged on the appeal. It is therefore only necessary to deal with his Honour's reasoning with respect to the allegation that the respondent was in breach of his duty of care by failing to keep a proper lookout.

103 At [83] of his reasons his Honour noted the submission of the appellant that given the distance between the corner of the fence line and the kerb of Bunker Parade (between 7 and 8 metres), for him to have ended up underneath the bus he must have crossed that distance and in doing so must have been visible to the first respondent had the latter looked to his left as he started to move off from the start point.

104 However, as his Honour observed (at [84]), the difficulty with that submission is the number of unknowns to which he had already made reference. One of the most important is the point in time at which the appellant emerged from behind the fence line. Another is the mechanism by which the appellant became separated from the bicycle and ended up beneath the front of the bus. I would add a third and that is the precise position of the bus at the time the appellant went under it especially given that it was common ground that the front nearside wheel of the bus passed over the appellant's leg approximately 9.4 metres south of the southern edge of the ramp which occurred 0.36 seconds after the bicycle was first visible in the CCTV footage.

105 At [85] the primary judge stated the following:

Another 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.

106 There are two errors in the foregoing paragraph. The figures referred to were taken by his Honour from the first version of Mr Bailey's spreadsheet whereas the correct spreadsheet to the accuracy of which Mr Johnston agreed was Appendix A to Mr Bailey's Supplementary Report of 13 March 2012. Accordingly, for 2.4 seconds at the commencement of the second sentence at [85] there should be substituted 3.96 seconds and for 2 seconds at the commencement of the third sentence there should be substituted 1.08 seconds.

107 At [86]-[89] of his reasons his Honour referred to the evidence of Mr Bailey, relevantly agreed to by Mr Johnston, that there were difficulties in relying upon the CCTV footage for the purpose of determining precisely where the first respondent was looking at any particular moment. Thus at [89] his Honour referred to Mr Johnston's statement in his report of 24 October 2011 that he agreed with Mr Bailey's comment that precise gaze analysis from the quality of video available from the CCTV footage was not possible as one cannot be certain, based only on head positions, as to where a person is actually looking or directing their gaze which can change more rapidly than the time interval between CCTV frames.

108 However, in fairness it should be reiterated that in his oral evidence at trial the first respondent, although maintaining that at all relevant times he was looking forwards to ensure that there was no obstructions in the path of the bus and that he did look to the left before the bus commenced to move, conceded that he did not look to the left again after Aslett passed in front of him. Unfortunately, he did not clarify whether when he gave that evidence, he was referring to not turning his head to the left or not adverting his eyes to the left whilst maintaining his head position to the front or both.

109 At [90] his Honour noted a submission of the appellant that the emergence of Aslett from the pathway in front of the bus should have alerted the first respondent to the likelihood that someone else might unexpectedly emerge from the lane and so he ought to have kept it under observation. This was particularly so given that the first respondent had acknowledged that he was aware of the pathway and that it was used by young people including those riding bicycles.

110 His Honour (at [91]) rejected this submission as being based essentially on hindsight. As the driver of the bus, the first respondent 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. His Honour considered there was no persuasive basis advanced for not accepting his evidence in that respect.

111 At [92] his Honour recorded a subsidiary submission by the appellant to the effect that the first respondent was not keeping a proper lookout because he did not see Aslett until he was already halfway across the road. However, as his Honour noted, the first respondent was not asked when he first saw Aslett. The whole thrust of his evidence was that he did see Aslett on his bicycle in front of the bus.

112 His Honour then referred (at [93]-[95]) to a submission of the appellant to the effect that the actions of the passengers in the bus were consistent with the first respondent not keeping a proper lookout. It was submitted that had he been keeping such a lookout it would not have been necessary for one of the passengers to shout "stop" as whatever the passenger had seen should also have been observed by the first respondent. His Honour rejected this submission on the basis that there was no evidence as to exactly what the passenger saw or, I would add, as to when and where he saw it. I have already referred to the acceptance by his Honour (at [74]) of the sequence of events stated by the first respondent in his police statement. The explanation, his Honour found, for why the first respondent, even after that sequence of events, could still not see anything was because the initial contact, if any, by the bicycle or the appellant with the bus appears to have been on its side rather than on its front. Accordingly, his Honour was not persuaded that the relevant sequence of events was consistent with the first respondent not keeping a proper lookout.

113 His Honour thus concluded (at [96]) that the appellant had failed to establish that the first respondent was not keeping a proper lookout. He stated that he reached that conclusion as there were too many unknown factors as to how the accident occurred. Putting the appellant's case at its highest, all that could be said was that there were some scenarios which may have occurred which were consistent with the failure on the part of the first respondent to keep a proper lookout but that the appellant was unable to prove on the balance of probabilities that any of those scenarios eventuated. Furthermore, that difficulty was compounded when, as Mr Johnston agreed, there was another scenario equally consistent with such evidence as was known and which did not involve a failure to keep a proper lookout on the part of the first respondent. That scenario was Mr Bailey's preferred theory.

114 To such a situation his Honour applied the well known principles to which I have referred at [99] above. In particular, the burden of proof on the plaintiff is not discharged where the circumstances appearing in evidence do not give rise to a reasonable and definite inference and do no more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. The present case, his Honour concluded, fell within that principle.

The Appellant's Grounds of Appeal

115 The appellant listed eight Grounds of Appeal on the issue of liability. They were as follows:

1. His Honour erred in finding that there was no failure by the Respondent to keep a proper lookout in the circumstances. [J 96]

2. His Honour erred in rejecting the whole of the Appellant's evidence when that evidence was in part corroborated by other witnesses and in circumstances where His Honour expressly declined to find that the Appellant deliberately set out to deceive the Court. [J 48]

3. His Honour erred in rejecting the evidence of, Ms. Lucht on the basis that such evidence was consistent with the Appellant's (rejected) evidence. [J 56]

4. His Honour erred in finding that the CCTV recording was positive evidence of (a) the passage of Aslett riding across the road and (b) the fact that the bus was moving at the time Aslett rode across the front of it. [ JO 40 and J71 - 75]

5. His Honour erred in accepting the reconstructed evidence of the Respondent bus driver in his evidentiary statement and oral testimony in preference to the contemporaneous formal statement (ERISP) given to Police on the day after the accident. [J 71]

6. His Honour erred in finding that it could not be established from the evidence how far the Appellant was behind Aslett, as Aslett approached Bunker Parade. [J 80]

7. His Honour erred in finding that it could not be established from the evidence where the bus was when the Appellant emerged from behind the fence line of the adjacent property. [J 80]

8. His Honour erred in finding that it could not be established from the evidence that there was contact between the bus and the Appellant and/or his bike, and that the presence of red paint on the bus in a position where impact is likely to have occurred, was unrelated to impact with the Appellant's red bicycle. [J 80 and J 42]

The Submissions on the Appeal

The Appellant's Submissions

116 The appellant submitted that the primary judge did not adequately deal with the evidence as to the circumstances of the accident which was consistent with the first respondent's initial statement to the police but inconsistent with the subsequent evidentiary statement made during the course of the litigation and his oral evidence. Rather, his Honour preferred what was described as the evidence of the first respondent "reconstructed" following his viewing of the CCTV footage. In particular, that evidence concerned whether the bus was stationary when Aslett passed in front of it; it was submitted that the first respondent's initial statement to police that the bus was stationary should have been preferred to his later statement that it was in motion.

117 It was further submitted that his Honour mistakenly found (at [77]) that Aslett's bicycle had passed in front of the bus when the bus had moved 1.9 metres, but that this was demonstrably incorrect. Rather, it had moved 1.9 metres (2 metres according to the spreadsheet) when Aslett's reflection first came into view; by this time, Aslett had passed the centre of the road. The appellant estimated that the bus had travelled 0.6 metres when Aslett passed in front of it. However, he acknowledged that the question of by how much less than 1.9 metres the bus had travelled when Aslett passed in front of it was not taken up with the experts.

118 His Honour's finding (at [68]) that it was not possible to resolve the question of whether or not the bicycle came into contact with the front nearside corner of the bus was also challenged. It was submitted that his Honour did not adopt "probabilistic reasoning" in regard to this finding. It was the appellant's case based on the theory of Mr Johnston that he entered upon the roadway but turned left when he saw the bus approaching; that there was an impact between the bicycle (which was then at an angle towards the south) and the nearside front corner of the bus; that the bicycle probably wobbled; and that the appellant fell to the ground in front of the bus, pushing the bicycle away as he fell. (I note my understanding of the significance of whether the appellant came into contact with the front nearside corner of the bus is that, if he did so, rather than falling under the side of the front overhang of the bus as theorised by Mr Bailey, that fact would have an effect on the assessment of the first respondent's ability to see him prior to that impact.)

119 In this context it was contended that the evidence to which his Honour ought to have had regard should have included that of the red mark on the front of the bus which, so it was asserted, was due to the appellant's bicycle coming into contact with the bus. In this regard, reliance was placed upon the evidence of Ms Duane, the police officer who attended the scene. However, in oral argument the appellant agreed that Ms Duane's evidence with regard to the red mark did not go further than her assent to the proposition that (to the naked eye) the mark matched the colour of the paint on the bicycle. There was no scientific expert evidence on the subject as Mr Bailey noted. This fact notwithstanding, it was suggested that it was open to the Court to observe from the photographs whether or not the colour of the frame of the bicycle matched the colour of the mark on the bus. That proposition should be rejected as it is clearly a matter for expert evidence.

120 His Honour's failure to find that Aslett's and the appellant's bicycles were travelling in close proximity to each other was also said to be erroneous. However, this submission was not developed in any detail.

121 As noted above (at [94]), the primary judge found (at [81]) that, in light of the expert evidence, he was unable to express a preference for any of the possible theories as to how the accident occurred, as one theory was as likely as another and there was at least one theory consistent with no breach of duty and one consistent with there being such a breach (a Luxton v Vines situation). However, the appellant submitted that the Court was required to examine the matter for itself and was not bound by the expert evidence. It was submitted that it was unnecessary to prove precisely what occurred. Rather, the Court was entitled to draw the inference that the appellant and his bicycle came out of the mouth of the pathway where the fence ended and travelled a substantial distance (although precisely how far remained uncertain although Mr Johnston suggested 1 to 3 metres), generally in a south-westerly direction to the point where it impacted with the front nearside corner of the bus.

122 Ground 3 of the Grounds of Appeal involved a challenge to his Honour's assessment of the creditworthiness of the evidence of Ms Luch^t. It is unnecessary to detail the appellant's submissions on this issue as it was ultimately conceded in oral argument that her evidence did no more than indicate that when she saw the appellant she observed the first respondent looking to the right.

123 A similar comment applies to Ground 2 as, again, it was accepted in oral argument that the appellant's evidence was unreliable. This concession was properly made given that Mr Johnston, as well as Mr Bailey, opined that the accident could not have happened in the manner alleged in paragraphs 10 and 11 of the Amended Statement of Claim. The appellant's version of events simply cannot stand with the preferred theory of Mr Johnston which, as the appellant acknowledged in oral argument, was the case he ultimately sought to make as to how the accident happened.

124 On the basis of Mr Johnston's preferred theory, the appellant submitted that the primary judge erred in finding that the first respondent had kept a proper lookout. The latter had admitted that he did not look to the left after Aslett rode across the road in front of the bus. That he did not do so was confirmed, so it was contended, by the CCTV footage (though note the problem with that footage referred to at [107] above). The first respondent's failure to look to the left must amount to a breach of duty having regard to the fact that Aslett had appeared from that direction some seconds earlier.

125 Central to the appellant's argument was the contention that, for approximately 6 seconds after pulling away from the bus stop, the first respondent did not look in any direction except to his right (although he also said that he looked to his front to ensure that his forward path was clear). It was submitted that this, in itself, was negligent as it constituted a failure to keep a proper lookout. Reliance was placed upon Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228; (2005) 80 ALJR 413 for the proposition that a driver must be aware of every source of danger on the road and its surrounds, and must take into account the danger of the activity being performed. In this case, it was submitted that the first respondent, as the driver of a twelve-tonne bus, had applied a "presumption of continuance" in relation to what was in front of his vehicle. In doing so, he had breached his duty of care which, given the extent of the possible harm capable of being caused in the circumstances, was "stringent".

126 The appellant also relied upon what Hayne J said in Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 at [12] to negative any reliance by the first respondent on the fact that he was distracted by Aslett suddenly passing in front of his moving bus. His Honour there observed:

To say that the driver was distracted by the vehicle coming out of the parking bays and the consequent reaction of the oncoming vehicle, is no more than a particular and positive statement of the negative proposition that he was not keeping a proper lookout. (emphasis in original)

127 Scott v Williamson [2013] NSWCA 124; (2013) 63 MVR 396 at [53] and Anikin v Sierra [2004] HCA 64; (2004) 211 ALR 621; (2004) 79 ALJR 452 were also relied upon as being analogous to the present case. However, although the legal principles to be applied were the same and each was a failure to keep a proper lookout case, their facts were very different to those of the present case.

128 It was next submitted that his Honour also erred in rejecting the submission that the first respondent should have been alerted to the possible presence on a bicycle of a child such as the appellant. The first respondent was an experienced driver who was familiar with the road; knew that the pathway was a cycle path used by children to access the shops; knew that it was mid-morning on a Sunday and that children would be out; must have known that where there was one, there may well be other children riding their bicycles; and saw one child, Aslett, but did not look for others. The first respondent ought to have anticipated that another bicyclist might emerge, and certainly ought to have checked to his left. It was submitted that this did not involve hindsight reasoning. However, although the first respondent made the concessions referred to at [35] above, he denied that having seen Aslett dash across the road on his bicycle in front of his moving bus, he was conscious of the possibility that he might be followed by others: see the exchange secondly emphasised at [37] above. It can be readily inferred that the primary judge accepted that denial.

129 The appellant rejected the proposition that if the first respondent had seen the appellant, he would have been entitled to expect that he would stop before entering upon the roadway. It was submitted that although the first respondent would not have been obliged to stop the bus, he should have covered his brake, given that Aslett had without warning emerged from the pathway and passed directly in front of him. It was contended that the first respondent should have foreseen as a reasonable possibility that the appellant would do the same or try to avoid the bus in a way which otherwise created a dangerous situation.

130 Accordingly, it was submitted that in becoming distracted and focussing on Aslett's progress across to the western side of the roadway while moving the bus forward and without looking to see whether it was safe to do so, the first respondent breached his duty of care. Moreover, had he kept a proper lookout, he would have seen the appellant as he emerged from behind the fence line and thus could have avoided colliding with him.

The Respondents' Submissions

131 The respondents submitted that the appeal should be dismissed because the appellant had failed to discharge the onus of establishing relevant material facts for which it could be definitely inferred that the first respondent had departed from the required standard of care in the circumstances. Thus it was contended that the primary judge was bound to consider precisely how the accident occurred in order to weigh up, consistently with authorities such as Bradshaw v Evans and Luxton v Vines, whether the material facts asserted by the appellant constituted anything more than a possible sequence of events so as to warrant a finding of breach of duty on the part of the first respondent. The appellant never proved precisely when it was that the first respondent could, or should, have first seen the appellant, the relative positions at that moment of the appellant and his bicycle on the one hand and the bus on the other, and the speed at which and direction in which the appellant was travelling at that time. Accordingly, the primary judge correctly determined (at [96]) that the appellant had failed to prove his case.

132 The respondents submitted that the difference between the present case and Manley was that in that case the evidence demonstrated where the plaintiff was at the time that the truck driver drove as he did, such that it was possible for the Court to make a realistic assessment as to what the truck driver ought reasonably to have done having regard to what, on the evidence, was visible to him. In the present case it had not been established as a matter of fact where the appellant was at any particular moment relative to the position of the bus, a fact the knowledge of which was essential if it was to be asserted that he ought to have been seen by the first respondent. It would therefore be an "impossible leap of faith" to say that the first respondent was necessarily negligent in failing to see the appellant.

133 The essence of the respondents' submission was summed up in the following passage from his oral argument:

The question that remains unanswered from beginning to end is just where was the [appellant] when it is alleged that the bus driver ought to have seen him? Where was he when he was said to be visible within such time as the bus driver could have easily taken the evasive action required to avoid the accident.

The Appellant's Submissions in Reply

134 In his oral submissions in reply, the appellant emphasised that he needed only to persuade the Court on the balance of probabilities (and that on a very slight margin of probability) that the appellant must have been at some point on a line between the mouth of the pathway (where it was no longer obstructed by the fence) and the point of impact, and that there was no obstruction which prevented his being seen anywhere along that line. The first respondent had a duty to look wherever he knew or ought to have known that there was a possible source of danger to him, his passengers, and to any other member of the community. Having kept a proper lookout, he would have seen the appellant and would probably have been able to avoid the accident.

Did the First Respondent Breach his Duty of Care?

135 The character and features of the present appeal are governed by s 75A of the Supreme Court Act 1970 (NSW). The principles relating to such an appeal were stated by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [22]-[25], [27] and recently adopted by Callinan and Heydon JJ in Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 at [43]. Those principles were summarised by Gleeson CJ, Gummow, Kirby and Hayne JJ in Anikin v Sierra [2004] HCA 64; (2004) ALJR 452 at [37] where their Honours said (omitting references to footnotes):

It is necessary to accept the large functions belonging to an appellate court, such as the Court of Appeal, in reviewing findings of fact of a judge sitting without a jury. Those functions, which derive from the provisions of the legislation governing the Court of Appeal in such proceedings, require that Court to conduct its own independent review of the facts, giving effect to its own conclusions about them. It must do this save to the extent, if any, that the primary judge enjoys advantages that cannot be fully recaptured by the appellate court. In these last respects, the appellate court should defer to the findings of the primary judge except for the very limited circumstances where it is authorised to substitute its own, differing conclusions.

136 To this statement of the relevant principles should be added the following rider from the judgment of the plurality in Fox v Percy at [23] (omitting references to footnotes):

... On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

137 In the present case the Court has been taken to a deal of, but not all, the evidence but this notwithstanding I have read, and hopefully absorbed, a great deal of it including, in particular, the evidence of the first respondent and the documentary and oral evidence of the two experts. In my view the resolution of this appeal very much depends upon an assessment of the evidence of those experts given the rejection by the primary judge of the evidence of the appellant as to how the accident occurred on the one hand and the evidence of Ms Luch^t which purported, to a degree, to corroborate it on the other but whose testimony was rejected on grounds which, in my view, are unassailable and certainly not glaringly improbable. For completeness, I do not consider the evidence of Aslett or the police officer, Ms Duane, to be of any assistance. In this respect, I do not differ from the primary judge.

138 As already noted the appellant relied on the following passages from the joint judgment of Gummow, Kirby and Hayne JJ in Manley at 415:

[11] ... But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.

[12] It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.

139 The essence of the appellant's submissions was that the first respondent ought to have been aware that the pathway leading to the ramp and which continued on the other side of the road constituted a potential source of danger in so far as children on bicycles might attempt to cross from one side of the road to the other along the line of the pathway without looking to see whether they could do so safely. That required the first respondent to give simultaneous attention not only to whether the roadway was clear in front of him but also to whether, Aslett having passed in front of him without looking, he might be followed by another child on his or her bicycle who might attempt the same manoeuvre. The first respondent was thus under a duty to control the bus in such a way that he was conscious of what was happening to his left where the pathway proceeded past the corner of the fence in time to take reasonable steps to react to a child on a bicycle who might either not see his bus or appreciate that it was moving.

140 However, the passages in Manley to which I have referred should not be taken out of the context in which they were expressed. The facts in that case are significantly different to those in the present case. In particular, the plaintiff in that case, who was struck and injured by a vehicle being driven by the defendant was lying prone on the road so that his position was fixed and in a location where that part of the road where he was lying was illuminated by a street light. Furthermore, the defendant had his headlights on the light which illuminated the roadway for about 60 metres ahead of his vehicle. Further, there was no form of obstruction to be avoided at least by the time his headlight beams illuminated the location of the plaintiff. However, the defendant was distracted by an intoxicated person on the side of the road and simply did not look ahead of him for otherwise he would have clearly seen the plaintiff and been able to avoid colliding with him.

141 The facts of the present case are quite different in that there is simply no evidence as to where the appellant was on the pathway and/or ramp at any particular point of time. All that is known is that the bus was stopped some 7 metres from the northern edge of the ramp; that it moved off when the road was clear in front of the bus (Aslett having already passed in front if it) and that, according to the spreadsheet, the front wheel of the bus passed over the leg of the appellant some 9.4 metres south of the southern edge of the ramp. There was no acceptable physical or visual evidence of any contact between the appellant and/or his bicycle and the body of the bus.

142 Two theories were advanced. One by Mr Johnston which, if accepted, might be consistent with a breach of duty on the part of the first respondent by failing to keep a proper lookout. The other by Mr Bailey which, if accepted, would be inconsistent with any such breach. The primary judge held that he was unable to determine the precise point of impact, if any, between the appellant and the bus; nor was he able to determine precisely where the bus was at the time of any impact. The case was one where, clearly, direct proof of sufficient facts from which to establish, whether by way of inference or direct evidence, how the accident occurred and in particular, at what point along the roadway, was necessary if it was to be alleged that the first respondent ought to have seen the appellant in time to avoid a collision.

143 The evidence, such as it is, in my view gave rise to conflicting inferences of equal degree of probability so that the choice between them was a matter of conjecture. No inference of negligence can be built on the mere fact that at some point the appellant must have ridden down the last 8 or 9 metres of the pathway towards the ramp. Even on the basis of Mr Johnston's theory, the bus had moved to a point whereby it was at least level with the ramp which caused the appellant to seek to avoid a collision by moving to the south. On Mr Bailey's theory the appellant moved to the south but was unable to control his bicycle (probably because he was going too fast and only had a rear brake with a bald tyre which would have affected his braking ability) whereby he fell headfirst to his right onto the roadway and was immediately in front of the bus in circumstances, explained by Mr Bailey, that would not, due to the geometry of the bus, have enabled the first respondent to have seen and avoided him.

144 Furthermore, in my view once the bus was moving and had reached the northern edge of the concrete ramp, and if at that point the appellant had ridden down the last section of the pathway, the first respondent would have been entitled to expect that the appellant would not seek to proceed onto the carriage way and would stop in order to let the bus pass like any rational person. He was not a young child: he was born in December 1990 and at the time of the accident (1 July 2007) he was 16 ½ years of age.

145 At the end of the day the first respondent's duty was to exercise reasonable care. Whether he did so or not depended upon the findings of fact which the primary judge was able to make in the light of the evidence such as it was. The experts acknowledged in the passage from their testimony which I have emphasised at [88] above that there was a gap in the evidence as to what occurred between the time the appellant's bicycle proceeded past the corner of the fence bordering the pathway and the time the front nearside wheel of the bus passed over the appellant's leg. Neither expert was able to fill that gap apart from offering theories or scenarios which constituted conflicting conjectures of equal degrees of probability.

146 The appellant's case was very much dependent on the proposition that the appellant ought to have known, Aslett having ridden in front of his moving bus, that as the pathway was a form of thoroughfare used to his knowledge by young bicycle riders, another such rider may have been following him. In my view the passage from [11] of Manley which I have recorded at [138] above does not mandate acceptance of that proposition in the circumstances of the present case given the unknowns to which reference has been made and which were acknowledged by both experts as providing a gap in the physical evidence which prevented them from reconstructing the events leading up to the accident with any degree of confidence.

147 Furthermore, the first respondent was required to ensure before he pulled away from the kerb, that the road was clear in front of him and that there was nothing behind him. He looked to his left as he pulled away and then to his front and then to his offside rear mirror. He then looked forward again. He could not look to his left while he was looking into that mirror. The sequence in which he looked left, front and behind could not be performed at the same time.

148 In my opinion the application of the general statement of principle at [11] of Manley is dependent on the facts of the particular case. What is required is "reasonable attention" to what is happening on and near the roadway. Relevantly on the facts of Manley it required attention to what lay ahead of the defendant's vehicular path.

149 In the present case it was not suggested that the first respondent failed to give attention to what lay in front of him. He clearly did. Rather, it was alleged that he failed to give attention to the possibility of a bicycle rider suddenly appearing on the pathway as it cleared the visual obstruction caused by the fence. But to accept that proposition in the absence of evidence as to the location of the bus in relation to the ramp at the moment the appellant came into view from the position of the driver of the bus, would be to apply principle in a factual vacuum.

150 Furthermore, Manley does not require guesswork on the part of the driver. Reasonable attention to what is happening on and near the roadway requires a factual matrix against which the relevant standard of care can be applied but which, as the experts acknowledged, was missing in the present case.

151 To adopt and adapt what I said in Draca v Silva [2012] NSWCA 312 at [45], the principles articulated in Manley at [11] and [12] did not require the first respondent to keep the pathway under constant surveillance in order to be able to react in the event that a second bicycle rider might suddenly appear and fail to stop before attempting to cross Bunker Parade with a moving bus in full view. To put it more basically, Manley has no application where there was no evidence as to where the appellant was on the pathway when he could have been seen by the first respondent.

152 Given my view on the issue of liability, it is strictly unnecessary to consider the appellant's appeal with respect to the primary judge's finding of 70 per cent contributory negligence or the respondent's cross-appeal on aspects of his Honour's assessment of damages. However, against the possibility that my conclusion with respect to liability is wrong, it is appropriate to deal with these outstanding issues: Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12].

Contributory negligence

153 The primary judge dealt with this issue at [113]-[117] of his reasons. In so doing he applied the principles articulated by the High Court in Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552 and Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492.

154 The factual basis upon which his Honour came to his assessment of the appellant's contributory negligence at 70 per cent is found at [116] of his reasons where he said:

On the primary findings of fact which I have made, it is apparent that the bus was moving at the time that the [appellant] cleared the fence line. At that time the [appellant] 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 [appellant] was more in control of the situation than [the first respondent]. There is no evidence of what the [appellant] was trying to do when he became separated from the bike and the accident occurred.

155 The appellant submitted, as I understand it, that any finding of the primary judge as to the appellant's contributory negligence was to be assessed upon the assumption that the first respondent had failed to keep a proper lookout. However, of itself the assumption does not contradict the appellant's challenge to his Honour's assessment of his contributory negligence. This is because it is only a generalised conclusion whereas to properly determine the extent of the appellant's contributory negligence, further facts would need to be found, such as the location of the bus when the appellant ought first to have been seen; the speed at which the appellant was travelling; and the steps, if any, the appellant took to stop when he first saw the bus.

156 It was further submitted that in assessing the appellant as being responsible for 70 per cent of the his damage, his Honour failed to properly weigh all the relevant factors required by the High Court in Podrebersek.

157 In my view this submission of the appellant must be rejected. It is of course true that his Honour's assessment of contributory negligence on the part of the appellant proceeded on the assumption that he was wrong in finding that the first respondent had failed to keep a proper lookout. But that does not detract from the reasoning of his Honour at [116] which I have set out above unless one also assumes, for instance, that his Honour ought to have accepted Mr Johnston's theory of how the accident occurred. Subject to that, it was open to him to conclude, as he did at [117], that the appellant's conduct made a greater contribution to the occurrence of the accident than that of the first respondent. He further found that the appellant's culpability for what had occurred was greater than that of the first respondent. It was on those findings that he assessed the appellant's contributory negligence at 70 per cent.

158 In my view it is clear from the foregoing that, as required by Podrebersek, the primary judge, in making an apportionment as between the appellant and the first respondent as to their respective shares in the responsibility for the former's damage, made the necessary comparison both as to culpability, ie of the degree of departure of each party from the standard of care of the reasonable man, and of the relative importance of the acts of each in causing the damage.

159 As pointed out by the High Court in Podrebersek (at 493G-494A), a finding on the question of apportionment is one as to which there may well be differences of opinions by different minds. Accordingly such a finding, where made by a judge, is not lightly reviewed. That principle seems to me to be particularly applicable to the present case as I can detect no error in his Honour's approach or in the making of his value judgment as to the appropriate percentage of responsibility to attribute to the appellant which would justify appellate intervention.

160 In this respect it is to be noted, as his Honour did, that the appellant accepted that a finding of contributory negligence would have to be made but suggested an appropriate assessment of 50 per cent. In my view his Honour's assessment of 70 per cent lies well within the range of the proper exercise of his discretion. Accordingly, I would reject the appellant's challenge to his Honour's finding with respect to his contributory negligence.

The Cross-Appeal on Damages

161 The respondents' cross-appeal relevantly raised five grounds of challenge to his Honour's assessment of damages:

2. The primary judge erred in awarding $550,000 as the cost of a C-leg prosthesis when the evidence demonstrated that the [appellant] would not make any use of such a prosthesis.

3. The primary judge should have allowed $279,750 as the reasonable cost of providing for the [appellant's] prosthetic requirements.

4. The primary judge erred in awarding $295,500 as the cost of providing for the [appellant's] housing needs, which amount substantially exceeded a reasonable allowance for that head of damage, namely $60,495.

5. The primary judge erred in awarding $219,450 for past domestic assistance, attendant care and supervision which amount substantially exceeded a reasonable allowance for that head of damage, namely $65,400.

6. The primary judge erred in awarding $4,252,791 for future domestic assistance, attendant care and supervision which amount substantially exceeded a reasonable allowance for that head of damage, namely $254,885.

It is appropriate to deal with those grounds in the same order as have the parties in their written submissions. No oral submissions were made with respect to those issues.

(a) Grounds 2 and 3

162 A C-leg prosthesis is, apparently, a sophisticated and obviously expensive device which has a computerised knee joint. The primary judge dealt with the issue as to whether an allowance should be made in the sum of $550,000 for the cost of the fitting and maintenance of such a prosthesis at [150]-[155] of his reasons. As noted by his Honour at [150] and by the appellant in his submissions with respect to this issue, either at the outset or before the commencement of the trial it was agreed between the parties that the appellant required a C-leg and that the cost thereof as well as the various paraphernalia that went with it had been agreed. Accordingly, his Honour was informed that he did not need to concern himself with the conflict between the two experts in this area.

163 The primary judge then observed at [151] that during the trial and as a result of the joint consultation between the rehabilitation specialists, Dr Stephen Buckley (qualified by the appellant) and Dr Brian Zeman (qualified by the respondents), the respondents withdrew their consent to the costs of the C-leg being allowed. According to his Honour, they did so because Dr Buckley no longer recommended that the appellant be fitted with such a prosthesis. He recorded that Dr Buckley had changed his opinion because of his understanding that the appellant had not been using his normal or conventional prosthesis on a regular basis and when he did so, it was no more than for three or four hours per day. The experts agreed that for the cost of the C-leg prosthesis to be justified, it should be used for at least 10 to 12 hours per day. According to his Honour Dr Zeman in particular did not accept that the appellant had the necessary dedication to persist in using the prosthesis so as to be able to reach a stage when he was using it for the necessary number of hours per day.

164 His Honour then noted that since the accident, the appellant had not vigorously pursued rehabilitation aims. Further, he had only started to regularly use his normal prosthesis in the last two years and even then for no longer than three to four hours per day. The reason he gave for not doing so for longer was because of the pain which it caused due to the damage to the scars on the stump of his leg.

165 According to his Honour the evidence established that the stump would become inflamed and sore because the appellant had not been regularly using the prosthesis. However, by the time of trial he had commenced using it on a more regular basis and as a result had been experiencing considerable pain in the stump which his Honour considered would improve provided he continued to use it regularly.

166 The basis upon which his Honour considered that the appellant should be awarded the cost of acquiring and maintaining a C-leg prosthesis was that he concluded that every opportunity should be given to the appellant to improve his mobility and to gain whatever level of independence he could. He was influenced in making that finding by the fact that the respondents did not withdraw their consent to the cost of the C-leg prosthesis until the middle of the trial and that the capacity of the appellant to argue the issue was thereby reduced in that he and his legal advisors had not been able to properly discuss the issue with Dr Buckley and Mr Laux, an expert in the fitting and management of such a prosthesis.

167 In their written submissions the respondents accepted that Dr Buckley had expressed the view that the appellant had a reasonable requirement for a C-leg prosthesis provided he was using it regularly. In his evidence Dr Buckley considered that the appellant should have the best artificial leg available and that this was the C-leg which involved a computer controlled knee which provided less severe mechanical stress upon the socket and the stump interface, thereby reducing the likelihood of stump damage. It was also a safer device than other devices in preventing falls and provided a greater range of options for the type of gait the appellant was required to employ including its use on stairs. It also improved a person's capacity to go up and down slopes and further reduced the energy cost of the use on the artificial leg making it easier to walk further.

168 Dr Zeman did not disagree with this assessment by Dr Buckley provided that the appellant was prepared to regularly use the C-leg for 12 or more hours a day but that if he was only prepared to use a prosthesis for a couple of hours a day then he would not get any relevant benefit from a C-leg. Dr Zeman acknowledged that a prosthesis such as a C-leg is usually fitted at a fairly early stage of a patient's rehabilitation although, of course, in the present case that was not possible unless and until the appellant obtained a verdict in his favour.

169 It was put to Dr Zeman that if the appellant had an aversion to going out in public using his wheelchair, was it reasonable for him to have a prosthetic device. Dr Zeman answered in the affirmative but only upon the basis that he used it full time. A couple of hours a day did not amount to a functional use of such a device. However, Dr Zeman noted that the appellant had had continuing problems with the fitting of a normal prosthesis which had not yet resolved and were continuing partly because, apparently, of his attitude to its use. It was his choice not to use a prosthesis for the necessary period of time and, therefore, it was unlikely that he would be a long term user.

170 In response, Dr Buckley indicated that he was not persuaded by Dr Zeman's argument as he believed that a person who uses an artificial leg for a few hours a day and chooses to use his wheelchair for the rest of the time should nevertheless have a proper artificial leg in the sense of one that will improve his safety and his mobility to the maximum extent. In particular, he agreed with the proposition that if such a person wanted to use such a prosthesis and has indicated a commitment to using it, he should be encouraged to do so as part of his rehabilitation.

171 The foregoing oral evidence was given in conclave on 11 April 2012. Drs Buckley and Zeman had provided a joint report dated 23 March 2012 in which they were requested to respond to a number of questions of which Question 7 was as follows: "What are the plaintiff's reasonable future medical treatment needs as a result of the accident?". Dr Buckley's response relied upon by the respondents was as follows:

Dr Buckley agrees that it is now unlikely that he will use a functional prosthesis. He no longer believes that the C-leg or waterproof leg are required. He agrees with Dr Zeman that wheelchair mobility with occasional use of crutches for access will be the usual form of mobility.

172 Question 8 asked: "What are the plaintiff's reasonable equipment needs as a result of the accident?". The joint response was:

We agree that artificial leg (prosthesis) is not suitable and that he is best considered a wheel-chair user. ...

173 The respondents therefore submitted that in the view of foregoing consensus on the part of the experts his Honour had no proper basis upon which to allow the cost of a C-leg prosthesis.

174 The appellant accepted that it was the opinion of Drs Buckley and Zeman that the cost of a C-leg would not be justified if it were only used on a limited, as distinct from a regular, basis. However, the primary judge had had regard to the appellant's evidence that he used his normal prosthesis over a significant period of time and only ceased to use it because it became ill-fitting with stump changes which caused him pain. In his examination in chief the appellant referred to the artificial leg he was then using as being too big and tending to fall off. He said he just wanted the leg to stay on and not fall off. Further, it rubbed his skin and caused blisters. However, he still wore it because he loved walking and he did not like using a wheelchair in which he felt uncomfortable and embarrassed. Accordingly, he went through the pain just to walk.

175 When asked whether he was still using the wheelchair and the circumstances in which he did so in the past, the appellant's response was as follows:

I still use it now. I used it like, I use it for everything. When I come home and I'm at home, my leg, it comes off, I have to rest. It's home, it's no time for having the leg on, when I'm resting my leg. When I go to my auntie's I don't like to take the chair out in public. I would rather put my leg on and walk. The chair is there so when I get home I don't have to constantly use my leg, because you cant constantly use a stump, because it gets wear and tear. Just tired. It really gets soar [sic]. You've got to give it a break. It gets rashes. Your skin starts to break down if you don't give it a break and you're going to be off for months or years.

According to the written submissions of the appellant there was no cross-examination on this evidence and none was referred to by the respondent.

176 The appellant submitted that it was clear why he did not use his normal prosthesis for periods in excess of 12 hours a day. It was never suggested to him that if a C-leg prosthesis was fitted properly, he would not use it for the recommended periods particularly whenever he was out of the house and in public which is something that he liked to do. Accordingly, it was submitted that in the circumstances it was open to the primary judge to accept the oral and more up to date evidence of Dr Buckley which was consistent with the appellant's evidence that he wished to increase and improve his mobility. On the evidence, a C-leg, as distinct from a normal, prosthesis would allow that to occur. If he was deprived of the former, then he would not ever be in a position, given his antipathy towards using a wheelchair in public, to fully rehabilitate himself in a manner which permitted him to walk for longer periods and, in particular, to associate more in the public domain rather than to be confined to his home.

177 In my view it was open to the primary judge to accept those submissions. No error in him doing so has been demonstrated. Accordingly, in my view it was open to him to award the appellant the costs of a C-leg prosthesis. I would therefore reject Grounds 2 and 3.

(b) Ground 4 - The Appellant's Housing Needs

178 The primary judge dealt with this issue at [162]-[174] of his reasons. It had been submitted that the appellant was entitled to the difference between the cost of a conventional house and one which had been specially modified to accommodate a wheelchair dependent person. The claim was for $972,629 but his Honour only awarded $295,500. The claim was opposed in full by the respondents on the evidence of Dr Zeman who was of the opinion that the appellant as an amputee who was able to use a prosthesis, did not need a wheelchair modified home. Alternatively, it was submitted that a number of matters included in the proposed modified house were not reasonably necessary to satisfy the appellant's needs. The first of these propositions was rejected by the primary judge and the second accepted.

179 The critical finding of his Honour is at [164] where he said:

For the reasons set out by Drs Buckley and Zeman, it is unlikely even with a C-leg that the [appellant] 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 [appellant] 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 [appellant] is entitled to the difference in cost between a conventional house and one which has been modified to accommodate a wheelchair dependent person.

180 The respondents submitted that in reality, the appellant's physical disabilities as a result of the accident were such that he spent the majority of his waking hours in a wheelchair. Accordingly, the only "housing needs" which he had in consequence of the accident were modifications such as widened doors, ramps, grab rails and the like compared to a conventional residence so as to enable him to move about without difficulty. His Honour's allowance of $295,500 under this head, which included capitalised maintenance costs of $127,750, was, so it was submitted, manifestly excessive.

181 It was further submitted that Mr Mazaraki, the architect qualified on behalf of the appellant, acknowledged that his opinions as to the necessary home modifications were based on Dr Buckley's opinion that the appellant would be primarily wheelchair bound for the rest of his life.

182 As I have indicated the primary judge did not accept the totality of the appellant's evidence on this issue. He was not satisfied that he needed a number of the additional features which Mr Mazaraki had proposed for his home. His Honour accepted that he needed a two car garage but not an additional bedroom for a carer. Nor did he accept that he needed an enclosed heated swimming pool or a reverse cycle ducted air conditioning system throughout a modified house.

183 At [172] his Honour did, however, accept that the appellant would require grab-rails, smoke detectors, a motorised garage roller shutter, and an entry gate. He also considered that the maintenance and running costs should be reduced to $5,000 per annum and recurring costs at $1,500 per annum which he capitalised at $127,750.

184 As I have indicated his Honour allowed the total sum of $295,500. Apart from the capitalised maintenance costs, the major component of this award was the difference in basic construction costs of $120,220. As I understand the respondents' submissions it was contended that the appellant was not entitled to the difference in costs between a conventional house and one which has been modified to accommodate a wheelchair dependent person except to the extent of providing widened doors, ramps, grab-rails and the like.

185 The appellant submitted that there was no doubt that he needed to acquire a house which had to be modified. At the time of trial he was living with his mother which he hated doing. He wished to attain his independence. It was submitted that given the manner in which his Honour had reduced the appellant's claim from $972,629 to $295,500, he had considered the appellant's housing needs at a bare minimum. He had made a modest allowance for housing modifications and rejected significant components of the appellant's claim such as air conditioning, swimming pool and carer accommodation.

186 It was submitted that his Honour accepted Mr Mazaraki's evidence that if there was a real need to use a wheelchair, even sporadically, house modifications were required. It was on this basis that his Honour made the modest allowance that he did.

187 In my view the respondents' complaints with respect to his Honour's assessment of the appellant's housing needs should be rejected. Given that the parties were content to confine their submissions on these issues to their written submissions, I find nothing in the those of the respondents' on this issue which would persuade me that the primary judge's response to the appellant's housing needs involved any error. In particular, it was insufficient for the respondents to merely assert that his Honour's allowance of $295,500 including capitalised maintenance costs of $127,750 was manifestly excessive. No reasons of any significance to support this assertion have been provided and I would therefore reject it.

(c) Ground 5 - Past Domestic Care

188 The primary judge addressed this issue at [176]-[178] of his reasons. The appellant claimed past domestic assistance for 40 hours per week at the maximum rate allowed under the Motor Accident Compensation Act 1999 ie $950 per week for 231 weeks. His Honour accepted that submission and awarded the appellant $219,450 for past domestic assistance, attendant care and supervision.

189 In so doing the primary judge accepted that the appellant's mother had provided more than 40 hours of such care for the appellant during the period since his accident. His Honour was also satisfied that the appellant had 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 was at the time of trial.

190 The respondents relied upon an agreement in the joint report of the psychologists, Professor Richard Mattick and Mr Peter Rawling, who were asked their opinion as to the appellant's reasonable needs for domestic care and assistance as a result of the accident and to which they responded:

From a psychological point of view, no requirement for domestic care and assistance.

191 Reliance was also placed by the respondents on the views expressed by Mrs Helen Wood, Occupational Therapist, in her report dated 30 October 2008. In Tables 1, 2 and 3 to Appendix 1 to her report of 30 October 2008, she set out the hours of gratuitous care understood by her to have been provided to the appellant over three periods prior to the trial. The first period was from 1 July 2007 to 1 November 2007 and involved in excess of 50 hours per week. The second was from 2 November 2007 to 1 May 2008 in which she stated that the hours provided were 22 hours per week. The third period was from 2 May 2008 to 9 October 2008 in which she stated that his care needs were seven hours per week. The primary judge referred to this evidence at [177] of his reasons as well as to that of Dr Zeman who apparently agreed with Mrs Wood although the respondents' written submissions do not provide an evidentiary reference to Dr Zeman's opinion upon this issue. There is certainly no evidence that Dr Zeman consulted with the appellant's primary care giver, his mother.

192 The appellant submitted that the primary judge was fully aware of the views expressed by Dr Zeman and Mrs Wood both of whom gave evidence at the trial. However, he rejected their evidence and preferred that of the appellant's mother whose evidence was that she had spent more than 40 hours per week providing gratuitous assistance, attendant care and supervision for the appellant each week since his accident. His Honour was satisfied that there was a need for such care and awarded an amount in accordance with s 141B of the Motor Accident Compensation Act 1999. It was submitted that this finding was supported by and was open on the evidence and was therefore unassailable. I agree. It was a matter for his Honour as to whether he accepted the evidence of Mrs Wood in particular. It is apparent that he did not but preferred the evidence of the person who provided the relevant care, the appellant's mother.

193 It would appear from Mrs Wood's report that she visited the appellant's home on 9 October 2008 when she discussed a large number of issues particularly with the appellant's parents over a period of four hours. Relevantly a post assessment call of 45 minutes was made to the appellant and his parents to clarify information relevant to the report. At paragraph 1.12 of the report Mrs Wood states that the information in the report was based upon the culmination of her direct observations, assessment of the appellant, his parents verbal reports, reports forwarded to her by the appellant's solicitors and her own professional opinion.

194 The reference in the respondents' written submissions to the joint report of Professor Mattick and Mr Rawling really takes the matter no further insofar as they apparently assessed the needs of the appellant for domestic care and assistance purely from a psychological point of view. In my view no weight can be placed on that assessment.

195 So far as Mrs Wood's assessment is concerned there is an apparent conflict between the hours referred to in Tables 2 and 3 to Appendix 1 with respect to the period 2 November 2007 to 9 October 2008. However it is not clear, and the Court was not referred to any oral evidence, as to whether the hours referred to in the column "Hours provided" was based on direct information provided by the appellant's parents or not. Furthermore, there is no suggestion in the respondents' written submissions of any challenge to the evidence of the appellant's mother, accepted by his Honour, that for the whole of the relevant period she had spent more than 40 hours per week in providing gratuitous assistance, attendant care and supervision for the appellant for each week since the accident.

196 For the foregoing reasons, therefore, I would reject Ground 5.

(d) Ground 6 - Future Domestic Assistance

197 The primary judge dealt with this issue at [179]-[185] of his reasons. At [179] he noted that the appellant claimed attendant care at the rate of 24 hours per day with active care during daylight hours and sleepover care at night. At [184] his Honour did not regard a 24 hour per day care regime as reasonable notwithstanding that it accorded with the recommendation of Dr Buckley and Ms Curtain, an Occupational Therapist. His Honour noted that there were other points of view. He referred to that of Dr Zeman, with whom Mrs Wood agreed, who recommended seven hours per week of assistance and care. Dr Patricia Jungfer and Dr J Sidney Smith, Psychiatrists, provided a third recommendation, his Honour noting that each was 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 appellant integrate into the community but that in total his needs would all be satisfied by 12 hours per day which would include "[v]isiting doctors, going to the gym, therapists, everything". Neither psychiatrist agreed with a 24 hour care regime noting that Dr Zeman made the point that a carer for that period of time would be regarded by the appellant as a gaoler and such a presence would be quite counter-productive and would prevent him from acquiring any real independence or domestic skills.

198 His Honour's conclusion is to be found at [184] where he stated:

I 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 [appellant's] calculations, the capitalised figure for such a regime of care would be $4,252,791.

199 It is apparent from the foregoing that his Honour accepted the evidence of Dr Jungfer and Dr Sidney Smith that the appellant had a need for 12 hours per day of care and assistance. It follows that his Honour's assessment was directly supported by their evidence.

200 The respondents submitted that his Honour's finding of a requirement for care and assistance for 12 hours per day for the remainder of the appellant's life was altogether "unwarranted" particularly in the light of the views expressed by Dr Zeman and Mrs Wood. So far as the latter is concerned, in those parts of her report relied upon by the respondents, she was dealing with past care although for the period 2 May 2008 to 9 October 2008 she asserted that the "hours provided" were seven per week. The assumption apparently made by the respondents is that that would continue into the future.

201 As to the passages in the evidence of Dr Zeman relied upon by the respondents that responded to the recommendation of Dr Buckley that the appellant had a need for a 24 hour care regime, Dr Zeman's reasons for opposing such a regime were acknowledged by the primary judge at [183] of his reasons. In this respect his Honour accepted the evidence of Dr Zeman that 24 hour per day care was excessive. The evidence of Drs Jungfer and Sidney Smith was to the same effect.

202 Reference was then made by the respondents to the testimony of the appellant himself where he stated that he would probably only spend one day at home by himself, two days but no more. However, he qualified this evidence by saying that he did not like it because, in effect, he felt isolated. He did not have a phone and, therefore, if he wanted something down at the shop he did not get it. He said, "I'm stuck, I'm by myself, so I hate it". In chief he gave evidence about feeling trapped at home and always being reliant upon someone to help him out which he hated as he was not independent and could not get around. He agreed that through the Catholic Church he had been provided with a carer for a period of time a couple of years previously which had lasted for eight months, that person coming two or three times a week for between an hour and two hours. However, this person was unsatisfactory as he did not understand the appellant's needs.

203 It was then suggested to the appellant that the doctors had recognised that he had to have a care regime and he was asked how he felt about someone caring for him during the day and perhaps the evening as well. He responded that having someone to help him would make things a lot easier. At present he had to ask his mother or father and if they were not there he had to wait. In the following evidence the appellant outlined the assistance which he considered necessary which, when viewed fairly so it was submitted, involved assistance for far less than 12 hours per day. Certainly the appellant set out the problems he was experiencing but in my view it would be impossible to conclude from that evidence that the assistance which he contemplated, let alone needed, was less than 12 hours per day.

204 The respondents next relied upon the joint report dated 22 November 2011 of the psychologists, Professor Mattick and Mr Rawling. Neither of them considered that from a psychological point of view the appellant had any requirement for either past or future domestic care and assistance. His Honour rejected that evidence with respect to past care and was entitled to reject it in relation to future care given his preference for the evidence of the psychiatrists, Dr Jungfer and Dr Sidney Smith. However, in his oral evidence Mr Rawling recanted from his joint response with Professor Mattick in their joint report indicating that he would defer to the expertise of others in deciding the appellant's care needs. It was more than a "slight change of view" as the respondents suggested. Mr Rawling stated that his agreement with Professor Mattick that the appellant had no requirement for future need and assistance was made in haste and there was no doubt that he recanted from it.

205 As the appellant submitted, his Honour had the benefit of the joint opinion of Dr Jungfer and Dr Sidney Smith, affirmed in their oral evidence, that the appellant required 12 hours per day of care both from a physical and psychological point of view for the remainder of his life. It was submitted that his Honour was entitled to prefer that view and I agree that that is so.

206 Finally, the respondents submitted that his Honour failed to discount the appellant's life expectancy because of the fact that he was a heavy smoker and in the light of the views of both Drs Buckley and Zeman that the appellant's life expectancy due to his smoking could be affected, according to Dr Zeman, by ten per cent.

207 The respondents complained that his Honour did not discount this head of damage due to the effect on the appellant's life expectancy due to his smoking, it was submitted by the appellant that that submission failed to take into account that the life tables incorporate discounts for the entirety of the population, smokers and non-smokers alike; in other words, the appellant's future life expectancy was already discounted. It was further submitted that the respondents' contention did not take into account that the appellant at 21 years of age, may stop smoking at any time in the future so that his life expectancy would not be affected.

208 In my view, although it is true that the life tables incorporate discounts for the entirety of the population, smokers and non-smokers alike, nevertheless there is substance in the respondents' submission that the appellant's heavy smoking is likely to have an effect upon his life expectancy. However, there is also substance in the appellant's submission that at the time of trial he was only 21 years of age and that he may stop smoking at any time in the future without his life expectancy being affected.

209 However, whether or not the appellant ceases smoking in the future is a matter of speculation. It was accepted that the evidence established that at the time of trial he was a heavy smoker. Even though only 21 at that time, there is no assurance, given the nature of his injuries and the effect that they are having upon him, that he would necessarily be prepared to give up smoking. In my view his Honour should have provided for the possibility that he would remain a heavy smoker and should, therefore, have discounted his life expectancy by the unchallenged figure of Dr Zeman of ten per cent.

210 It follows from the foregoing that this ground of the cross-appeal should be upheld and the capitalised figure for a 12 hour per day future assistance regime recalculated on the basis of a ten per cent reduction in the appellant's normal life expectancy. However, in the circumstances, it is unnecessary for that calculation to be performed at this point of time.

Conclusion

211 With respect to the appeal in my opinion the primary judge was correct to find that in the circumstances the appellant had not proved his case. As I have already observed, the explanation for the accident proffered by Mr Bailey seems to me to have greater force than that proffered by Mr Johnston but I am content with concluding that each expert proffered a theory or inference from the known facts, such as they were, of equal degrees of probability with the consequence that no reasonable and definite inference can be drawn one way or the other.

212 With respect to the cross-appeal the respondent challenged the awards of the primary judge with respect to four heads of damage upon which, had liability been established, it would have succeeded, in part, on one. In the circumstances, in my view the cross-appeal should be dismissed although, in the event that I am wrong on the issue of liability, then the appropriate order would be for the cross-appeal to be allowed in part. In that event, so far as the costs of the cross appeal are concerned, in my view the respondents should pay 75 per cent of the appellant's costs of the cross-appeal.

213 I would therefore propose the following orders:

1. Appeal dismissed.

2. The appellant to pay the respondents' costs of the appeal.

3. Cross-appeal dismissed.

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Decision last updated: 05 December 2013