Armin Damirdjian v Nominal Defendant & Zaya [2021] NSWDC 703 | Case summary

Armin Damirdjian v Nominal Defendant & Zaya [2021] NSWDC 703 | Case summary | Zoe

[3]

Table of Contents Factual background [1] - [2] Procedural background [3] - [11] Interlocutory listings following adjournment [12] - [20] Alternative positions litigated by plaintiff [21] Final version of the pleadings [22] - [24] Issues for determination [25] Evidence review [26] - [27] Evidence summary - liability issues [28] - [135] The plaintiff [29] - [45] Mrs Douglas [46] - [53] Mr Ida [54] - [62] Mr Sawa [63] - [65] Mr Zaya, the second defendant [67] - [81] Senior Constable Doubleday [82] - [103] Expert evidence attempting accident reconstruction [104] - [135] Issue 1 - Identity of the vehicle [136] - [150] Issue 2 - Utility of expert accident reconstruction evidence [151] - [163] Issue 3 - Factual circumstances of the accident [164] - [180] Plaintiff's speed and manner of approach [172] - [174] Cause of plaintiff's fall from his motorcycle [175] - [176] Road gouging by motorcycle [177] - [178] Ownership of white van [179] Conclusion [180] Issue 4 - Duty of care / risk of harm [181] Issue 5 - Alleged negligence [182] - [187] Issue 6 - Alleged contributory negligence [188] - [192] Issue 7 - Assessment of damages [193] - [307] Evidence review - damages [193] - [210] • Plaintiff's evidence on damages [195] - [202] • Evidence of Mr Sahade [203] - [205] • Evidence of Mr Carbone [206] - [207] • Evidence of Mr Cicciarello [208] - [209] • Evidence of Mr Khachigian [210] Medical evidence [211] Findings on medical opinions in contention [213] - [233] Findings on damages issues [234] - [270] (1) Plaintiff's background circumstances [235] - [244] (2) Injuries and treatment [245] - [256] (3) Disabilities that remain [257] - [263] (4) Work effects [264] (5) Most likely circumstances but for injury [265] - [270] Assessment of claimed heads of damage [271] - [210] Past domestic assistance [275] Past economic loss [276] - [287] Future economic loss [288] - [296] Future treatment expenses [297] - [300] Past out-of-pocket expenses [301] - [305] Summary of damages assessment [306] Interest claim [307] Disposition [308] Orders [309]

[5]

Procedural background

On 7 January 2014, the plaintiff's solicitors commenced the present proceedings against the Nominal Defendant pursuant to s 34 of the MAC Act claiming that, despite some earlier inquiries, the identity of the owner and driver of the vehicle remained unknown.
It is agreed between the parties that the liability result in these proceedings will determine the result of related proceedings in this Court numbered 2014/269323 brought by the plaintiff's daughter, Christina Damirdjian, against the some defendants. She claims damages for psychological injury and mental harm consequent upon learning of the plaintiff's injuries.
Between 5 March 2014 and 30 March 2017, the proceedings were the subject of numerous pre-hearing case management listings supervised by the Judicial Registrar. During that time, on the plaintiff's application, the matter largely remained in the Court's Inactive List. During that time several procedural motions and directions hearings took place before the List Judge concerning matters touching upon appropriate preparation of the case for hearing.
On 30 March 2017, the proceedings were fixed for the hearing to commence on 28 August 2017 with an allocated estimate of 4 days. On 23 August 2017, 5 days before the commencement of the hearing, the parties appeared before List Judge to inform the Court of the revised estimate of 7 to 8 days for the case, instead of the earlier estimate of 4 days.
At the hearing, which commenced before me on 28 August 2017, the plaintiff was represented by Mr Menzies QC with Ms B Nolan. The Nominal Defendant was represented by Mr J Turnbull SC. On the third day of the hearing, on 30 August 2017, during the course of evidence, information emerged suggesting the possible identity of the vehicle and its driver.
This resulted in an adjournment of the proceedings on the plaintiff's application, so that consideration could be given to joining an additional and alternative defendant, Mr Sam Zaya, who had by then already given evidence in the plaintiff's case. Following that evidence, the plaintiff's legal advisors believed that a proper basis may have existed for Mr Zaya to be sued, alleging he was the owner of the vehicle in question.
What then followed was a lengthy period of delay whilst the plaintiff's representatives took time to decide what they would do in order to advance the proceedings to a conclusion. In the course of final submissions, counsel were invited to identify the narrative to be included in these reasons to explain the consequential delay.
That delay was then explained by Senior Counsel for the plaintiff as follows: "MENZIES: The narrative, your Honour. There are two reasons for it. One, the concern that we had for the plaintiffs, about risk of costs, and therefore the need to try and identify properly what the issues were, so that we'd consider ourself (sic) safe, as it were, to join someone else. The second aspect of it was, of course, the delay which inevitably follows, having made that decision to join the second defendant." [T473.34 - T473.39]
The minutiae of some of the events surrounding that delay are set out in paragraphs 116 to 144 of the affidavit of Christina Damirdjian affirmed on 6 May 2020. Those matters do not require consideration at this point.

[6]

Interlocutory listings following adjournment

In the period that the proceedings remained adjourned part-heard, there were numerous supervisory directions hearings aimed at relisting the matter. Between 8 September 2017 and 9 October 2020 there were 18 such directions hearings. On those occasions, the Court sought indications as to when the plaintiff would be ready to take a resumed hearing date.
In that time, on 8 May 2019, on the application of the plaintiff, an order was made pursuant to UCPR r 6.24 for the joinder Mr Zaya to the proceedings as the second defendant.
On 17 July 2020, pursuant to s 26 of the Civil Procedure Act 2005 (NSW) ("CP Act"), an order was made requiring the parties to participate in a mediation. This proved unsuccessful in resolving the proceedings. No adverse inferences arise from such non-resolution.
During 2020, on account of prevailing COVID-19 issues, the Court was unable to allocate a resumed hearing date in the short term to accommodate the revised hearing estimate.
During that period of delay, Mr Zaya's legal representatives unsuccessfully pursued a motion seeking judicial recusal. That motion was dismissed on 19 September 2020 for reasons given ex tempore at that time.
On 19 October 2020, the part-heard proceedings were fixed for a resumed hearing to commence on 15 March 2021, with a revised estimate of a further 7 hearing days.
At that resumed hearing, Mr P Menzies QC continued his appearance for the plaintiff, but with Mr A Parker in lieu of Ms Nolan. Mr J Turnbull SC continued to appear for the Nominal Defendant. Mr W Fitzsimmons SC with Mr B Jones appeared for Mr Zaya, the recently joined second defendant.
The resumed hearing proceeded on 15, 16, 17, 19 and 22 March 2021 and the evidence was then completed, subject to a timetable for submissions.
Owing to the availability of counsel, and having regard to the time needed to prepare outlines of submissions, the proceedings were then listed for argument on 31 March 2021, at which time judgment was reserved, with delivery of the judgment to take place after other cases with greater priority were determined.

[14]

The plaintiff, Mr Armin Damirdjian

The plaintiff was born in Iraq in 1966. His family background is Armenian. He arrived in Australia with this family when aged 3 years. He is divorced from his wife. He has two children from the former marriage. His oldest child, Christina born in 1997, is also a plaintiff in the related proceedings.
The plaintiff left school with the School Certificate in 1982 after completing Year 10 studies. He has variously worked as a mechanic and a service technician in a number of positions with a variety of machinery, including commercial, industrial, and domestic machinery.
The plaintiff said that at the time of the accident he was riding his motorcycle on the way home in a westerly direction in Nile Street, Fairfield West. He said he had made a right turn into Nile Street from The Boulevarde. He described his speed at the time of the turn as more or less at a standstill or rolling, and then, at a point about 15 metres or so into Nile Street, he looked at his speedo and saw he was travelling at 50kph, which necessarily meant that he had accelerated to that speed from a near standstill.
The plaintiff said that at that time, he looked up and saw a lady ahead of him standing and then walking on the side of the road towards him near a white van that was parked on the side of the road to his left. He said he first saw her and the children with her from a distance of about 150m. He said he was riding at about 50kph and was being cautious because of the presence of children. He said he moved his line of travel more towards the centre of the roadway. He said that when he was about 30m away from that lady, he observed that by then, she and the children with her, were already on the grassed footpath. It appears in that time he had reduced his speed to about 40kph.
The plaintiff said that he then slightly accelerated from what was then a reduced speed of about 40kph. He thought he was in fourth gear at that time. The plaintiff then described the subsequent events as follows: "Q. And then you - what was the next thing that you observed? A. The guy in the van pulled out in front of me, threw a U turn right in front of me. Q. The guy in the van pulled out in front of you and did a U turn. Now, where had he been facing before that occurred? A. West down Nile Street. West. Q. He did a U turn. A. Yes, sir. Q. Did he complete the U turn? A. Don't remember nothing. Q. Right. So he started to do a U turn. A. Yes. All I know, when he done it, it was Q. Well, started to do what you assumed A. a bit more than halfway across. Q. Hang on. He started to do what you assumed was going to be a U turn. A. It was roughly about halfway across. Q. Right. And what did you do? A. Hit my brakes, and that's all I remember. Q. And then what was the next thing you remembered after that? A. I was in the ambulance and I'm sure the ambulance lady, lady or guy, said to me, "You had a bike accident." Pretty sure that's what she said to me. Q. Do you recall before that having a conversation with anybody? A. No. Q. Now, when you were told you'd had a bike accident, did that jog your memory as to what had happened? A. I was in and out of consciousness all the way through there to the hospital. Q. Then you went to the hospital. A. Correct. Q. Do you remember going to the hospital? A. I remember the police officer asking me a few questions and he said, "Good luck", and that was it. Q. Good luck. A. Yeah. Q. As he sort of waved you goodbye, or something. A. Good luck to me about skin grafts on your hands." [T73.3 - T74.1]
After the plaintiff had braked heavily, with consequential wheel lock and skidding, his motorcycle became unstable and he fell to the roadway and either slid or rolled on it for some distance. He received a concussive head injury and other injuries in the accident. This resulted in a period of impaired consciousness. There was no medical evidence tendered to suggest the plaintiff's recollection as was recounted to the attending police officer, or in evidence in these proceedings, particularly as to his speed and his road position as he approached the white van, was unlikely or improbable as a result of his earlier amnesia. The plaintiff could not recall whether the vehicle in question had completed the U-turn that had been commenced as he approached.
The plaintiff said he only had a vague recollection of his conversation with the attending police officer whilst he was in hospital: T74.33. His recollection of the events seems to have subsequently crystallised whilst he was in hospital, about a week after the accident, as is apparent from the following extract of his evidence: "Q. And you've - can you recall then, when you had, after that event, you're in hospital, when you had any recollection about any of the events? A. About a week later, roughly, to a point; about a week later. Q. What did you - what were the sort of things that you're remembering-- A. Coming down Nile Street, look at my speedo, seeing a lady there with two kids, and the last one I remember was the van pulling out in front of me, and that's it. Q. Has that recollection improved since then, or is that still what you remember? A. That's all I remember." [T75.1 - T75.12]
The plaintiff denied that he was speeding at the time of the accident, and he had pointed to the evidence of the absence of flat wear marks on his tyres when defending, albeit unsuccessfully, a negligent driving charge brought by Senior Constable Doubleday in Local Court proceedings. The point he was making was that absent such marks it was unlikely that he had skidded over any significant distance. He defended those proceedings because he considered the accident was not due to fault on his part: Exhibit "F".
He described his intention to turn from Nile Street to travel about 200m to his destination, being his parents' home, where he was living at the time: T79.1 - T79.12. He described the direction of travel of the white van at the time of the U-turn as travelling north.
In his oral evidence, the plaintiff identified his damaged motorcycle from a series of photographs: T75.24. Those photographs featured in discussions in the expert evidence which attempted to interpret and reconstruct the circumstances of the accident. It appears those photographs were taken about 5 months after the accident.
At the initial hearing on 28 August 2017, the cross-examination of the plaintiff on liability issues was conducted by Mr Turnbull SC on behalf of the Nominal Defendant. That cross-examination covered the following topics in which the plaintiff confirmed that: 1. He had limited recollection of the events: T144.46; 2. When he applied both the front and the rear brakes on his motorcycle, they locked up: T145.1 - T145.12; 3. He did not recall falling to the roadway: T145.15; 4. He was cross-examined on the transcript of the evidence he gave in Local Court proceedings in 2012: T148 - T150: Exhibit "F"; 5. He said that the liability account set out in his personal injury claim form, apparently completed on his behalf by his solicitor, was not correct, and he said he could not explain this. He said he had not read it carefully before signing it, saying it was a mistaken account: T146; T147.9. The account in that form was as follows: "I was on my motorcycle riding down Nile Street, Fairfield Heights. I saw a lady on the footpath on the side of the road and I veered slightly to the rigth (sic) in case someone comes out of the road. A van parked on the left side of the road attempted to make a U turn and I had to skid sideways to avoid a collision. I skidded must have fallen off and hit something because I had lost consciousness."
Specifically, in that cross-examination, the plaintiff gave the following evidence in respect of challenges to his evidence on factual aspects of the events leading to the subject accident: 1. He could not recall for how long his brakes had remained locked: T151.13; 2. He denied the proposition that the photographic evidence within Exhibit "C" showed that after the brakes on the motorcycle had locked, it skidded for a period of time: T152.50 - T153.22. That denial was supported by the absence of flat wear markings on his motorcycle tyres. That said, the plaintiff's evidence in related Local Court proceedings was that there was some skidding; 3. He could not recall seeing the statement that the attending police officer had taken from him at the scene of the accident: T153.25 - T153.36; 4. A factual account of the events of the accident as recorded by a medico-legal examiner to the effect that his motorcycle had collided with the van was an apparent misunderstanding on the part of that examiner concerning the history given to him by the plaintiff: T154.23; 5. He denied the suggestion that his motorcycle was travelling well in excess of 50kph when it was in Nile Street, and he said there was "no chance" he would have been travelling at 90 - 100kph at the time: T154.27; 6. His estimate of 150m being the distance from which he had first seen the lady on the road ahead was not based on any measurement he had undertaken: T155.16; 7. He denied applying his brakes at a point about 17m before he eventually came to a stop, and he denied falling off his motorcycle to then continue to slide along the road: T155.18 - T155.29; 8. He disagreed with the suggestion that the total distance of locking of his brakes and him sliding to a stop on the road was about 70m: T155.34.
In the subsequent cross-examination of the plaintiff on the liability issues on 15 March 2021, as conducted by Mr Fitzsimmons SC on behalf of the second defendant, on the following topics, the plaintiff stated that: 1. He did not recall some of the detail of the evidence he gave at the initial hearing, This was not surprising as three years had passed since 2017: T275.45 - T276.1; 2. Before the accident he had moved or positioned his motorcycle towards the centre of the road to be safe: T276.39; 3. He did not see any lights on the back of the vehicle that he said had commenced a U-turn in front of him: T277.25 - T277.45; 4. He confirmed his recollection that the van had turned without warning whilst he was travelling along Nile Street: T279.42; 5. He was travelling at 50kph at the time the van pulled out in front of him: T280.2; T280.31; T281.29; 6. He did not accept that at the time of the accident he had been travelling at about "70 plus, 84, or even 90kph": T282.14.
The transcript of the Local Court proceedings against the plaintiff which were heard on 18 April 2012 was tendered: Exhibit "F". That transcript contains two factual accounts provided by the plaintiff.
The first of those accounts was recounted in evidence by the attending police officer, Senior Constable Doubleday, as follows: "I remember riding along The Boulevard and tuning into Nile Street. I was driving down Nile Street and I think a van or a car or something pulled out of a driveway and I just hit the brakes and skidded. I remember the bike going sideways and then nothing. I woke up in the ambulance and I was taken to hospital. When I asked how fast were you going at the time of the accident, you said 'I don't remember'." [Exhibit "F", p 5.6 - 5.11]
The second of those accounts was given by the plaintiff in his own evidence on that occasion, when he was examined by the presiding Magistrate, as follows: "Q. I've held a licence for something like 45 years so - bike licence - so 1 know a bit about bikes. All right, well what happened? A. Your Honour, I was going down Nile Street to go home and I saw a lady with two kids, kids would be maybe eight years old, around that age and height. When 1 was going down I was doing about 50 ks and I saw them next to the van how I said. 1 said towards the middle of my lane a bit and 1 was about maybe 20, 30 metres away and I started to accelerate and as soon as I did the guy in the van just pulled out. I hit my brakes and skidded, fell over, and that's all I remember. And then I remember talking to Constable Doubleday in the ambulance. The cause of me having my accident was not that 1 was dangerous driving or whatever, it was caused by a guy in the white van that pulled out in front of me. He didn't see me coming. He had no indicator on, no foot on the brake, nothing to let me know that there was a guy in the van to permit me to take more care. And that's what 1 believe what happened your Honour. The guy in the white van pulled out in front of me at the last minute. I've hit my brakes, I fell over and I skidded after I fell over. Q. So tell me about the lady with the two kids, where were they? A. Next to the white van. Q. Right? A. Next to the white van. The van was parked on the road near the gutter and I was coming down Nile Street. When I saw them I went towards the middle of the lane. I saw the lady there with the two kids. 1 took the middle lane so it doesn't catch one of the kids when they run out last second I can avoid them. Soon as I was close enough I just started to accelerate and then that's when the guy pulled out in front of me. Hit my brakes, fell over and that's what caused the accident. I've got photos of my bike of the tyres I took in stages and numbered them to show that I wasn't speeding, that's how I remember. I don't doubt Constable Doubleday what he said but I've got photo proof to say that the skid marks on my bike. If I was doing over - if I was doing 100 ks plus don't you think there'd be flat - there'd be skid marks on my tyres when I hit my brakes. I've got photos - that's my daughter there. Q. What's the photos of? A. My tyre of my motorbike numbered in stages, and taking photos in stages to show you that there is no evidence of skid marking on my tyre if I was doing a 100 ks." [Exhibit "F", pp 6.36 - 7.23]
In that transcript, the plaintiff identified the photographs he relied upon in those proceedings as having been taken on about a month beforehand, that is, in March 2012: Exhibit "F", pp 8.10 - 8.25.

[15]

Mrs Douglas

Mrs Douglas lived in the neighbourhood where the accident occurred. She was inside her house at that time. She said she had heard the sound of the plaintiff's motorcycle and based on that sound, she considered that it was not going fast: T16; T17.32 - T17.47.
She said that she had heard the sound of what she thought was a crash and then the sound of some scraping. She said she went outside and saw some people gathered at the scene. She saw the plaintiff's motorcycle on the ground and saw the plaintiff on the grass near a telegraph pole. She said she also saw a white van across the road in Stanley Street opposite her house: T18.48; T20.30.
Mrs Douglas proffered the view that the white van did a U-turn at that place every day: T18.29. She stated that she had previously seen the white van parked in her street near a house: T19.
When Mrs Douglas' evidence was tested (T21 - T31), in essence, she confirmed that she had seen the white van in the street when she came out of her house: T21.38. She said that earlier: "Q. To your right. And did you see the van at that point? A. The van was like turning, and before that I heard the motorbike screech after I heard it coming down the road." [T22.3 - T22.5]
When cross-examined Mrs Douglas elaborated on that evidence by stating that, before the collision, she saw the van enter the street, travel down the street, then reverse and execute a U-turn: T22. She was adamant she saw the vehicle execute a U-turn on the day in question: T23.48; T27.33 - T28.5; T28.32. She was adamant that the white van executed a U-turn outside number 19 Nile Street, and then drove away up Nile Street and disappeared from her line of sight: T23.41; T25.1. She stated that she knew the man who lived in number 19 Nile Street and had seen what had happened: T25.17.
Mrs Douglas was cross-examined on a statement she had provided to solicitors on 15 July 2014: Exhibit "1/D2"; T25. Her statement was in the following terms: "2. On Wednesday 5 October, 2011 I had been at the Fairfield Heights college and returning home in the afternoon walking along Nile Street headed back to my home. I noticed a gathering of people from the street near the laneway of Stanley Street. I then saw a blue motor cycle on the ground like it had crashed. Nearby there was a man sitting in the gutter and he appeared to be injured. The other neighbours were attending to him. 3. As I stood and watched what was happening I heard the people talking about the accident and they said that a white van had pulled into the laneway and then reversed out into Nile Street and didn't see the motor bike coming along the street and made him have an accident to get out of the Van's way. 4. At this time I remembered when I had started walking into Nile Street from The Boulevard I saw a white van coming out of the street and drove off. I thought at the time that this white van must have been the van they were talking about. 5. I stood about for another 5 or 10 minutes and the other people seemed to have the matter under control so I went back inside to see my children." [Exhibit "1", tendered by second defendant]
It appears from the body of evidence cited above that Mrs Douglas had given an inconsistent account of the events to the effect she had come upon the scene whilst walking towards her home and saw events as they appeared after the collision: T26.27 - T27.2. She conceded her memory of the events was poor because the events had occurred some time ago: T29.18. This was not surprising given the effluxion of time, including the period of over 3 years that passed between the two tranches of her evidence.
Subsequently, her evidence about the white van and its owner was clarified, and she stated that whilst she did not know the person who owned the white van, she knew he lived at 19 Nile Street, on the corner with Stanley Street: T30.17. She later clarified her evidence about the van being at 19 Nile Street, changing it to refer to number 17a, which was the second defendant's address: T30.41. She said she saw the van there regularly before and after the subject accident: T30.47 - T31.2. I took her statement that she did not know that person to mean she knew who he was and where he lived, but she did not know him in the personal sense.

[16]

Mr Ida

Mr Ida is a motor mechanic. He lived in the neighbourhood. He had known the plaintiff since he was about 12 years old. At the time of the accident, he was at home having his lunch. He said that as an experienced motorcyclist, he heard the sound of a motorcycle decelerating. He likened that noise to an engine compressing the exhaust when not accelerating: T33.30 - T34.16; T39.24.
He said he then heard a crashing and scraping noise. He went out to investigate and saw a white van half on the road with its front wheels on the footpath or the nature strip between number 19 and number 21 Nile Street: T35.20 - T35.28; T56.1 - T56.6. This suggests that the van may not have completed the U-turn in the events of the plaintiff's accident.
Mr Ida had apparently driven to the scene. He said he drove past the van and saw the plaintiff's body on the grass, with dripping blood coming from his face, ears, arms and hands: T36.26. He noticed the presence of about 25 people standing around and he went to assist the plaintiff until the ambulance arrived: T36.50 - T37.40.
After Mr Ida got up from assisting the plaintiff he noticed the while van had disappeared from the scene: T37.49. He said the attending police officer at the scene did not seem interested in questioning him once he had said he had not seen what had happened: T38.6.
As an experienced motorcycle rider, Mr Ida said that if a motorcycle of the kind ridden by the plaintiff was travelling at 50kph, it would need 50m - 60m to stop on a relatively flat road without braking, that is, just by backing off: T44.41 - T44.50; T48.31.
Mr Ida said that he had moved the plaintiff's motorcycle after the police arrived: T48.3. He said that when he moved it he noticed that it was still in gear: T53.17.
Mr Ida was asked to consider the proposition of the motorcycle having travelled at 90kph compared to a lesser stated speed of 50kph in terms of the expected sounds one would hear when backing off in fourth gear. He stated that in his opinion, which I consider to have been suitably experienced, the sound of the former scenario would have produced a much louder sound: T48.27 - T48.42. He did not consider the plaintiff's motorcycle was travelling in excess of the speed limit as he considered it was making a normal backing off sound: T49.33 - T49.44; T50.27. He based that evidence on his own experience in testing motorcycles for speed: T58.38 - T59.10.
In cross-examination by Mr Turnbull SC, Mr Ida confirmed that his evidence as to the speed of the plaintiff's motorcycle was based on the nature of the sound that he had heard as he interpreted it, namely, a decelerating sound: T50.36; T50.48; T51.10; T53.36. He acknowledged that opinion was gear dependent, and in that regard, he did not know which gear the plaintiff's motorcycle was travelling in at the time: T51.25. He said he only heard the sound of deceleration of the motorcycle: T53.7.
Mr Ida rejected the proposition that his conclusion as to the plaintiff's speed involved guesswork: T53.32. He said if the motorcycle had been accelerating too hard he would have heard it: T53.49; T54.6; T54.16 - T54.27; T55.25. He estimated the time interval between hearing the sound of deceleration and the sound of crashing to be about a couple of seconds: T55.38.

[17]

Mr Khalid Sawa

At the time of the accident, Mr Sawa lived at 32 Nile Street near where the accident occurred. His signed factual statement dated 20 July 2014 was tendered in the plaintiff's case: Exhibit "K". The plaintiff relied upon that statement: T395.17 - T395.26.
Mr Sawa's statement was in the following terms: "2. On Wednesday 5 October, 2011 was at my home upstairs with my son when we heard a loud crash come from the street outside. I ran downstairs and out the front and saw a blue motorbike lying in the street, I saw a crash Helmut on the street outside my house. I went out and looked up the street towards the right and saw a man injured sitting in the gutter. My son came out and he was on the phone calling 000. 3. I went out onto the street and saw there some other people helping the man in the gutter and other people picking up these things of his from the street. I saw a large white van parked on the opposite side of the street facing towards Stanley Street. The man who had been driving the van was out and near the man on the ground, he was talking on his mobile phone and I thought he was calling 000 and getting help what to do talking to the people on the phone from the Police and Ambulance, the man was very injured. 4. I saw the man's Helmut (sic), wallet and cards all over the road so I helped the other people picking up these things and took them to the man in the gutter. The man from the white van was standing near the injured man and he was telling people not to touch him in case he had back injury it was best not to move him. He appeared to be taking control of what was happening. There were a lot of people out in the street trying to help. 5. The next thing the Police arrived and I heard them talking to the man in the White van who told the Police that the bike rider was travelling along tile street and had swerved to miss something, I don't know what he said it was but It made him loose control and hit the gutter. 6. The next thing the ambulance arrived and took the man away. I then went inside."
The police records do not contain any reference to a conversation between the attending police officer and the man in the white van as described paragraph 5 of Mr Sawa's statement as cited above. He was not cross-examined on that aspect of his statement.
On 16 March 2021, Mr Sawa gave oral evidence. The salient features of that evidence was as follows: 1. He confirmed the corrections of his statement as identified above: T395.50; T399.21; 2. He was not proficient in reading or writing. English is not his first language. The statement appears to have been prepared by an investigator: T397.12 - T397.34; 3. He confirmed that he heard the sound of the accident and saw a lot of neighbours, more than 20, come out. He saw a man take apparent charge of organising assistance for the plaintiff. That man, who he said had come out of the white van, was not known to him: T400.1 - T400.32. 4. His recollection of the events has faded over the decade that has passed since the events occurred: T401.23 - T401.40.

[18]

Mr Zaya, the second defendant

Mr Zaya, who became the second defendant on 8 May 2019, gave his evidence in two tranches, the first was on 20 April 2018 (T212 - T229), and the second was on 31 March 2021: T445 - T456.
Between 2007 and 2013, Mr Zaya lived at 17a Nile Street, Fairfield West. At the time of the accident he owned two white vans that he and his employees used in his cleaning business: T212 - T213.
One was a Toyota Hi Ace 100 Series with registration RCZ11A. He could not initially remember the registration details of the second vehicle: T213.33 - T214.6.
In his first tranche of evidence, Mr Zaya stated that a painter, who lived next door to him on the right, in number 17 Nile Street, also had a van, which may have been white, however, he could not accurately remember the colour of that vehicle due to the passage of time: T215.25 - T217.3.
Mr Zaya said of his own vans, that sometimes one of his employees would take a van home, and at other times one of his vans would be parked in either his driveway or in the street near his (home: T218.25 - T218.34) including opposite his house (T219.36), or wherever an available space appeared in the street: T220.19 - T221.11.
Mr Zaya later conceded he occasionally parked his van registered number RCZ 11A in his driveway at 17a Nile Street, and sometimes on the side of the road in Nile Street, either on his side or the other side of the road: T452.39 - T452.50; T453.12 - T453.5.
Mr Zaya could not recall the details of his work arrangements on the day of the accident: T222.26. He was not sure if he could produce records from so long ago: T225.30 - T225.46. He recalled someone attending his home in about October 2012 asking that he sign a document about an accident that had been brought to his attention, but he declined to do so, and he did not take that document: T223.32 - T223.38; T224.22. At the time he took the view that he could not sign anything concerning something that he had not witnessed: T225.13.
Mr Zaya described one of his white vans as having all metal sides and the other having sliding glass panels: T226.43. He was asked about another registration number VBQ 915, but he could not remember it: T228.11.
Mr Zaya agreed, in answer to a question asked by Mr Turnbull SC, that sometimes he did U-turns in his van in Nile Street, if required: T229.26.
In the second tranche of Mr Zaya's evidence, some 4 years later, he said he recalled giving evidence on 20 April 2018: T445.33.
On 31 March 2021, Mr Menzies QC put the specific question to him that on the occasion of the subject accident, he did a U-turn in his van on Nile Street. He denied that proposition: T446.10 - T446.23; T447.10 - T447.26. In answering questions on that topic he based that denial on his understanding that his employees normally used that van: T446.30. He allowed for the possibility that it might have been an employee who had driven the van on the day in question: T446.49.
When pressed on those issues, Mr Zaya adamantly denied being the driver of the white van on the occasion in question (T447.35), and said he had not seen the incident: T447.50. He not only denied he was the driver, but he also rejected the suggestion that he failed to give an indicator signal and denied he had failed to brake or keep a proper lookout: T448.1 - T448.24. He also denied making an unsafe turn across the path of the plaintiff's motorcycle, and he denied that he had been present at the scene after the accident: T448.33 - T448.41. He also denied approaching the injured plaintiff and then leaving the scene: T449.12.
On 31 March 2021 Mr Zaya was further cross-examined by Mr Turnbull SC, who obtained the concession from him that, at the time in question, Mr Zaya owned another vehicle with a registered number which was something like VBQ 915: T451.2. That concession then became a positive acknowledgment that, in 2007, he had purchased the van VBQ915 and the registration had expired on 16 July 2011 because the engine had failed, and he had sold it to a car wrecker: T451.42; T452.18.
Mr Zaya could not recall purchasing a third van on 28 November 2011: T451.48 - T245.2. Mr Zaya's evidence as to vehicle ownership must be read in conjunction with the documentary evidence comprising motor vehicle registrations.
The Nominal Defendant submits the combination of the evidence of Mrs Douglas and the RMS records of registration of Mr Zaya's vehicles is a sufficient basis for a finding that it was Mr Zaya's vehicle which was involved in the incident. That submission will be considered with regard to Issue 1.

[19]

Senior Constable Doubleday

The Nominal Defendant called Senior Constable Doubleday, who had attended the accident scene as a general duties officer. He did not have a tape measure with him at the scene, and he said that he made a visual estimate of distances using a football field (100m) as a comparator: T247.47. He said for distances over 20m - 30m, his baseline technique was to "imagine the length of [an AFL] football [field in his] mind's eye": T247.48. It was noteworthy that a simple Court room estimate by him using that method of measurement revealed margin for error of about 25 per cent: T248.46.
When he attended at the scene he saw what he described as a skid mark of about 20m in length as a continuous black line on the road followed by 50m of scrape marks to where the bike had come to rest on its side: T249.25. In giving that evidence he acknowledged the accuracy of his estimates was within "several metres" (T249.5 - T249.25), which suggested that allowance should be made for a significant margin of error in his estimates.
He said that from memory, the marks were seen to be in the middle of the lane of travel: T249.33. He described his "eyeball" estimates as having been made "roughly": T249.46. The notes he made in his notebook and in the COPS events entry reflected that process.
Senior Constable Doubleday identified the plaintiff's version of events as was obtained from him at hospital: T251.28. He stated that he did not investigate to determine the existence of the while van at the time: T252.40. There is no dispute that Senior Constable Doubleday did not further pursue the investigation to seek details of that vehicle as referred to by the plaintiff. He said that at the scene, no-one had mentioned a white van to him and no-one was prepared to give a witness statement: T253.19 - T253.45. The only person to mention a white van to him was the plaintiff: T253.23. He formed the view that the plaintiff had been at fault and thereafter he made no further investigations: T254.11.
Senior Constable Doubleday identified the fact that the plaintiff gave his first version of the events whilst he was in the ambulance and the second version was given at hospital some time later: T255.23. At the time the plaintiff appeared slightly dazed and confused: T255.49 - T256.1. The plaintiff's account, as recorded in Senior Constable Doubleday's notebook was in the following terms: "I remember riding along the boulevard and turning into Nile Street. I was driving down Nile Street and I think a van or a car or something pulled out of a driveway and I just hit the brakes and skidded. I remember the bike going sideways and then nothing. I woke up in the ambulance and I was taken to hospital." [T256.26 - T256.30]
At the resumed hearing on 16 March 2021, Senior Constable Doubleday was called to give further oral evidence: T310 - T327.
At that second tranche of his evidence, on 16 March 2021, Senior Constable Doubleday was recalled to enable counsel for the plaintiff and counsel for the second defendant to explore his evidence on the new and alternative case that was by then being pursued by the plaintiff.
Senior Constable Doubleday confirmed that when he initially saw the plaintiff at the accident scene he could not tell what had happened, and when he later saw the plaintiff at hospital, at first he was dazed and confused, but subsequently, whilst still at hospital, sometime later, he gave an account of the events: T310.34 - T311.2.
Senior Constable Doubleday prepared a COPS event report of his attendances four days after the accident: Exhibit "3". His next involvement in the events was that he gave evidence in the Local Court proceedings: Exhibit "F". He confirmed that he had given incorrect evidence in those proceedings to the effect that the applicable speed limit was 60kph, when it was in fact 50kph, thus providing the Local Court Magistrate with a wrong impression of the surrounding circumstances: T313.15 - T313.35.
Senior Constable Doubleday's evidence on those matters was further explored, as follows: "Q. The explanations for that, Constable, that I would see is available - before I ask that question, you see at line 1 on page 3, you were asked why you issued a ticket. You said, "The length of the skid marks and the gouges on the road left by the accused indicated that he was doing - travelling well above the posted speed limit of 60 kilometres an hour." A. Correct. Q. The next question by the prosecutor is, "And you say 60 kilometres per hour is the signposted speed in that location." And "Yes, it is." A. Correct. Q. Well, obviously, that couldn't possibly be right. Isn't that right? A. Doesn't appear so." [T313.37 - T314.1]
Senior Constable Doubleday was pressed as to from where he had obtained the speed estimate of "in excess of 100kph". He said he could not answer that question without speculating as he had not recorded that information: T314.42 - T315.22. There was nothing in his notes to support that estimate.
Senior Constable Doubleday agreed, according to his inquiries, that none of the bystanders saw what happened, and his evidence in the Local Court was inconsistent with his proposition that someone had seen the accident but was not willing to come forward, and therefore, his 100kph or more estimate of the plaintiff's speed, could not be correct: T316.20 - T316.41.
When Senior Constable Doubleday's evidence about the plaintiff's skid and gouge marks on the roadway was explored, it appears that evidence cited above had formed the basis for his estimate of the plaintiff's speed. He also said it was based on his own experience as a motorcycle rider, having crashed at 60kph where his own skid marks "left nowhere near as long a skid mark as what he had marked out at the scene": T317.30. The variables within that comparison hardly need stating.
The references to the skid having been marked out by him at the scene was not a reference to an accurate measurement as Senior Constable Doubleday had only paced out part of the described distances at the scene, namely the skid marks, in a manner that must be discounted to allow for a margin of error. His visual estimate of the gouge marks also necessarily suggests a margin of error would apply.
When Senior Constable Doubleday's evidence was explored in that regard, he gave the following evidence and made concessions: "Q. I'm just puzzled by this, because at first blush it would appear that in order to correlate gouge marks with speed, one would have to firstly identify which part of the vehicle left the gouge marks, and then to consider whether the surface of that part of the vehicle might have had, for example, a different coefficient of friction to tyres, and there would be many other aspects of the analysis along those lines that would be required in order to come to a reliable conclusion. Do you agree with that? A. Yes, your Honour. I fully admit I'm not an expert in the matters of speed. Q. I was just, again, seeking, to explore what your expertise was for this statement. Correct me if I'm wrong, I get the impression that you've arrived at it in an anecdotal manner based upon your own crash experience. A. Yes, your Honour. Q. Without measurement or calculations. A. Yes, your Honour." [T317.32 - T317.47]
Whilst no precise technical conclusions could be drawn from that evidence, was indicated to counsel at the time (T318.3), that evidence tends to cast doubt on the reliability of the evidence of Senior Constable Doubleday as to his estimates of speeds and distances.
Senior Constable Doubleday was asked to identify the content of his final interview with the plaintiff whilst he was in hospital, he gave the following evidence: "Q. Could you please read to his Honour, pages 32 and 33? A. "Driving down Nile Street and I think a van or car or something pulled out of a driveway and I just hit the brakes and skidded. I remember the bike going sideways and then nothing. I woke up in the ambulance and was taken to hospital." Do you want me to keep going? Q. Keep going? A. I asked - so, the rest of that is in shorthand. Q. Yes? A. So, I asked him, "What speed were you doing?" He says, "I can't remember. Were your headlights on? It's always on. "Were you under the effects of any alcohol, drugs or other medication? No. Did you have a passenger? No. Did you suffer any injuries?" He said, "Right arm, head, left, hip and knee." I said, "Will you now read and sign my notebook as a true and accurate record of our conversation?" He said, "No, can you dictate?" I said, "Yes." I made a note that I read the version aloud to the driver and also made a note that he was unable to sign, so I signed and Constable Blazovik signed as well." [T319.23 - T319.41]
Senior Constable Doubleday agreed, apparently based on his own experience as a motorcycle rider, that if harsh braking was applied, the motorcycle would have become unstable, regardless of the speed: T320.16.
That evidence was followed-up by the following evidence concerning the content of Senior Constable Doubleday's notebook: "Q. You see, what you recorded in your notebook was, wasn't it - and you can check it at page 32, but I'll read it to you. "I think a van or a car or something pulled out of a driveway and I hit the brakes hard and skidded - or hit the brakes and skidded"? A. Correct. Q. So, his evidence was plain enough, wasn't it, that he saw something in front of him and he reacted to it? A. Yes. Q. And the something in front of him was a vehicle of some kind, to put it neutrally? A. Yes. Q. Isn't this generally the circumstances? You saw the gouges? A. Yes. Q. You saw the skid marks? A. Yes. Q. And you proceeded upon an assumption that those gouges and tyre marks were produced by this bike in this accident? A. There was no doubt in my mind that they were produced by the bike. Q. But you have - I think as you've already told his Honour - no expertise at all? A. No, it was lay opinion only. Q. A lay opinion only? And it was a lay opinion based upon, one, your own experience in an accident that had occurred sometime earlier, it seemed of a similar nature? A. Yes. Q. And without the benefit of any measurement by way of the use of a tape? A. Yes. Q. Entirely based upon your physical observation? A. Yes. Q. And you accept, don't you - let me ask you this question. In an investigation by traffic investigators, they rely, don't they, upon, as part of the physical evidence, the actual measurements obtained by use of a tape? A. Sorry, when you say, "traffic investigators", are you talking about the crash investigation unit, or just general duties that attend traffic accidents? Q. I'm talking about a crash investigation unit? A. Yes, but they only attend fatal matters. Q. I beg your pardon? A. They only attend fatal matters. So, an accident where somebody passes on. HIS HONOUR Q. But there are different ways of measuring these phenomena. One simple way would be to simply pace it out, if you were on the scene? A. Yes, your Honour. Q. Is that what you did? A. I paced out these skid marks, not the gouges. Q. You said that there was no doubt in your mind that these marks were left by the motorcycle. There were two kinds of marks - skid marks and gouge marks? A. Yes, your Honour. Q. How did you exclude the possibility that one of those sets of marks could have been coincidental? A. So, the skid marks were in line - directly in line with the gouge marks, which led directly to the rear wheel of the motorcycle. That, in my mind, was enough evidence to say that that was the motorcycle that had caused them. Q. Did you, for example, make any enquiries at the scene of nearby residents to seek to ascertain whether there were any pre existing marks on the road, prior to this accident? A. No, your Honour." [T321.2 - T322.27]
Counsel for the second defendant explored the evidence of Senior Constable Doubleday: T323 - T327. In doing so he extracted the following matters: 1. The gouge marks on the road that he had estimated by line of sight rather than pacing it out led in a straight line from the rear wheel of the motorcycle to the skid marks which he had paced out: T327.8 - T327.30; 2. He confirmed the general proposition that in a situation of extreme or harsh braking, more rubber would be left on the road than gentle braking: T324.50; 3. He confirmed that his contemporaneous notes of the scene identified his estimate of 20m of skid mark and 50m of slide marks on the roadway: T326.43; 4. He confirmed that he had completed his primary paperwork in the form of running sheets concerning his attendance by 5.58pm on the day of the accident: T326.49.
Copies of Senior Constable Doubleday's notebook entries and his COPS event material were in evidence: Exhibit "3". The COPS event summary incorporated the contentious speed estimate of "in excess of 100kph, based on descriptions by witnesses".
In fact there were no such witnesses. Senior Constable Doubleday acknowledged this error in his oral evidence. The significance of that incorrect factual account will be taken up in the analysis of the expert opinion evidence on the liability issues.

[23]

Second report of Mr Hall - 27 January 2015

Mr Hall's second report, dated 27 January 2015, was prepared at the request of the solicitor for the Nominal Defendant, who sought Mr Hall's comments on Mr Kahler's report dated 26 September 2014. Pursuant to that request, Mr Hall made the following points: 1. Mr Hall could not comment on the photographs of the tyres on the plaintiff's motorcycle because those photographs had insufficient clarity for him to make a comment on the nexus between the observed condition of those tyres and the skidding and locking of the motorcycle: Exhibit "1", p 23. It was not clear whether the copy photographs he had were of the same clarity as those tendered in evidence in these proceedings; 2. Mr Hall traversed a number of points including the appropriateness of the sliding friction value adopted by Mr Kahler in his calculation, the rapid locking of a front wheel, the commonly encountered phenomena of non-empirical distance understatement, brake build-up and time taken for brake build-up, with associated likely speed loss, and differences in the approach to estimating the speed of the motorcycle.
On the issue of skidding and related evidence of tyre wear that indicated the expected signs were not present on the photographs in evidence, well-established authority identifies the difficulties associated with fact-findings based on the interpretation of photographs: Blacktown City Council v Hocking [2008] NSWCA 144, at [7]-[10], [167]-[170]; Angel v Hawkesbury Council [2008] NSWCA 130, at [69]-[72]; Warren v Gittoes [2009] NSWCA 24, at [2]-[3]; Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85, at [8], [20]-[29]; Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326, at [66]; Goode v Angland [2017] NSWCA 311, at [89]-[96].
However, in this case, that principle is moderated somewhat by the fact of the plaintiff's descriptions, and that of Mr Blom, which were to the effect that there was no flattening of the rubber seen on the numbered sections of tyre as shown in the photographs: Exhibits "6" and "7".
Significantly, on the critical question of distance estimation, in arguing for his preferred interpretation, Mr Hall placed great emphasis on what he considered to be the likely accuracy of police estimates of skid and scrape marks, identifying a factor of +/-20 per cent variation (Exhibit "1", p 24), and his view that it would be "highly unlikely" that the police officer would confuse a scrape distance of 11 - 16m with one of 50m, using that view to discount the plaintiff's evidence that he was travelling at 50kph at the time of the accident: Exhibit "1", p 25.
In my view, Mr Hall's reliance on those propositions had the effect of introducing an element of untenable speculation into the analysis. There can be no default assumption of accuracy of estimates given by police officers, without more supporting detail. That detail was lacking in the evidence in this case.
The above analysis led Mr Hall to discount Mr Kahler's conclusions claim that he had missed important information regarding braking and capsize of the motorcycle, and claimed Mr Kahler "has missed the major inconsistency between assuming a speed of 50kph and the physical evidence observed and reported by the Police": Exhibit "1", p 26.

[26]

Concurrent oral evidence of Mr Hall and Mr Blom - 16 March 2021

In the concurrent evidence session the competing views of Mr Hall and Mr Blom were identified and explored, and the matters upon which they either agreed or disagreed were identified.
Those experts agreed on the following matters: 1. The experts agreed that if in fact the skid mark in question was 20m long and the related gouge mark was 50m long, then the plaintiff's speed before he applied his brakes would have been in excess of 80kph: T356.1 - T356.11. That agreement must be read subject to a margin for error in the estimates of Senior Constable Doubleday; 2. The experts agreed that, as a matter of principle, prior to the commencement of the skid mark, a period of brake application must have passed, allowing for what is called brake build-up and deceleration. They agreed that proposition supports a conclusion that the speed would have been in excess of 80kph: T356.36 - T356.41. That agreement was significantly qualified by Mr Blom's comment that he had no reliable evidence of the length of the scrape and skid marks and those factors were based on assumptions: T356.45 - T356.48. Mr Hall agreed that the conclusion was assumption-based: T357.5; 3. The latter point was further reinforced by Mr Hall, who stated that if there was no finite definition of the sliding length, being the distance over which the motorcycle had slid, then a calculated conclusion as to speed cannot be arrived at: T357.25 - T357.40; 4. Mr Hall pointed out that the length of the police officer's pace was a variable, and he had no idea of the margin for error to be allowed, but if 20 per cent was allowed as suggested by Mr Hall, a 50m distance could be reduced to a 30m distance, which he referred to as a huge difference: T359.34. The impression of arbitrary guesswork in this process is a compelling conclusion; 5. Mr Hall agreed that estimated measurement using eyesight projected over distance alone are unreliable, and he conceded the obvious point that an estimate is not the equivalent of an accurate measurement: T359.42 - T360.20. This calls into question the need to assess the reliability of estimates provided by Senior Constable Doubleday in this context; 6. Both experts in effect agreed that a crucial element in the consideration of the speed of the plaintiff's motorcycle was the accuracy or inaccuracy of the police officer's pacing, as a measurement, with the result that if one cannot arrive at a proper measurement of distance, then one cannot make a reliable estimate of the speed: T361.23 - T361.31; 7. In light of the potential inaccuracy of Senior Constable Doubleday's estimate of the 50m gouge mark on the road, Mr Hall attempted a fact check exercise in which he factored in a 20 per cent allowance for error (T377.37 - T378.2), to arrive at a different speed estimate closer to 80kph: T380.21. In my view that involved introducing an unsupported speculative component into the analysis as the 20 per cent assumption involved speculation; 8. Mr Blom declined to comment on the speculative proposition on differing assumptions that did not arise from the evidence (T382.1), and preferred to rely upon research data rather than what I considered to be arbitrary and speculative changes in assumptions: T382.14.
The matters upon which the experts disagreed are identified as follows: 1. Whereas Mr Hall considered that signs of damage can be consistent with certain sliding distances, Mr Blom disagreed because account must be taken of damage due to vertical impact compared to sliding impact, that is, how the motorcycle initially interacted with the roadway: T364.38 - T365.14; 2. In making that latter point of disagreement, Mr Blom identified the difficulty of simply identifying a speed based on signs of damage where account must also be taken for possible rotation of the bike where rotation can made a difference to the calculations: T368.21 - T368.45. This was where (at T366.45), Mr Hall had acknowledged that factor, and later added further factors, namely, whether the motorcycle had bounced when it fell, and whether it then went forward in a straight line until it came to rest: T368.49 - T369.1. This highlighted the speculative nature of experts seeking to make incomplete factual assumptions on matters where factual data was absent when trying to achieve a tidy or neat analysis; 3. There was uncertainty and disagreement over the sequence and extent of wheel locking, that is, including whether the back wheel had locked. Mr Blom thought it had not, because there was insufficient removal of material from the cycle to reach that conclusion where it was also consistent with the motorcycle having simply been dragged across the workshop floor: T371.36 - T371.44; 4. The speculative conclusions from the fact of wheel locking became evident in the following tract of evidence: "TURNBULL: And again, consistent with the wheel having locked and being dragged along the roadside, skidding? WITNESS BLOM: It's not in line with the motorcycle. The motorcycle would have to veer to the - the rear of the bike would have to veer to the right hand side, to get those - the directional rub marks. TURNBULL: The bike would be falling though, wouldn't it? WITNESS BLOM: Not necessarily. TURNBULL: Well, isn't that the effect of your evidence, that you agree with Mr Hall that once you've locked the wheels, the bike falls in three quarters of a second? TURNBULL: Well, that mark could have occurred during that fall, couldn't it? WITNESS BLOM: Not this one, because the marks were in the other direction. TURNBULL: Again, is that the front or the rear wheel? WITNESS BLOM: That's the rear wheel. TURNBULL: Mr Hall, do you have a comment about that? WITNESS HALL: Yes. It is clear that the wheel has locked, and it's been sliding, and the diagonal nature of the marking is consistent with what typically occurs when the rear wheel of the motorcycle is locked, and that is the rear wheel drifts away from alignment of the direction of the motorcycle because it's actually trying to surpass the front wheel which is being braked at a higher level. Because of the - once you get to 100% saturation of slip at the wheel, it loses traction and then it starts to wander down the road. And typically what we will see is, there will be a slight curvature in the tyre mark made by the rear wheel, and through that you get a diagonal striation effect across the face of the tyre. In this case, it is essentially still upright, but the back is drifting away. TURNBULL: Do you agree with that, Mr Blom? WITNESS BLOM: It could, but in this situation the back would be drifting the wrong way for the angle of the fall of the bike. TURNBULL: Mr Hall? WITNESS HALL: No, I don't see how that is - a motorcycle drifting away to the right, and then the front wheel slips to the left, creates a fall on the right hand side. Because as the rear of the motorcycle drifts to the right, the rider has to, in maintaining balance, turn the steering wheel to the right and on applying full lock up pressure at the brake, the motorcycle will then slide - the front will slide to the left because the momentum of the rear of the bike is towards the right. So in a dynamic sense, one would expect that the motorcycle would fall onto the right hand side. TURNBULL: Do you accept that, Mr Blom? WITNESS BLOM: I have a differing opinion, of the rear of the bike having to go to the left and slipping out from underneath the rider to fall on its right hand side. WITNESS HALL: But can I just say, maybe you're confusing the back sliding down first, whereas this clearly indicates it didn't slide down. WITNESS BLOM: Yeah, I can't make that determination. WITNESS HALL: Right. So what you're describing is that the back wheel locks and it would have to slide to the left to be a rear wheel locking only condition? WITNESS BLOM: Or front wheel locking as well. WITNESS HALL: But it's predominantly the rear wheel that has rotated around to cause the fall on the right hand side, whereas with the predominant front wheel lock up, the motorcycle - the rear wheel drifts to the right and any locking then will cause a fall to the right because the front wheel pushes away to the left under a lock wheel condition. TURNBULL: Mr Blom? WITNESS BLOM: I'd have to accept both. I feel it could happen either way. but I don't see it happening." [T373.15 - T374.43] 1. The essential difference between the two engineering experts is that whereas Mr Hall determined the plaintiff's speed prior to emergency braking as being in excess of 80kph, Mr Blom considered it to be approximately 50kph: T377.7 - T377.44; 2. The experts disagreed on the appropriate perception reaction time involved with the plaintiff observing the van before it turned. Mr Blom considered 2.5 seconds (T390.4) was an appropriate reference point (Mr Hall) considered the general reference to be 1.5 seconds: T390.31. Mr Blom pointed out the assumption was that the focus could have been near the van, as distinct from on the van: T391.18 - T391.35. In that context, a one second difference could mean a difference of 14m in travel distance at 50kph (T352.16), and 22m difference at 80kph: T392.20. Those matters raised by Mr Blom demonstrated the danger of adopting as fact, generalised considerations that make limited or no allowance for prevailing factual circumstances.
I now turn to the consideration of the issues and matters calling for decision.

[27]

Issue 1 - Identity of the vehicle

Section 34(1) of MAC Act provides a mechanism for making claims for damages for negligence in cases of fault on the part of the owner or driver of a motor vehicle where, after due inquiry and search, the identity of the vehicle cannot be established. To maintain such a claim a claimant must show that there has been due inquiry and search to seek to establish the identity of the motor vehicle concerned: s 34(2) of MAC Act.
Ultimately, after the joinder of the second defendant, in final submissions, the Nominal Defendant did not raise or argue an issue over whether the plaintiff had pursued appropriate due inquiry and search.
The Nominal Defendant plainly took that position arguing that the evidence in these proceedings, comprising the evidence of Mrs Douglas, which described the vehicle and its regular manner of use at the scene, and the RMS records, satisfactorily identifies the vehicle in question, thus shifting responsibility for the plaintiff's claim onto the second defendant, Mr Sam Zaya. If that submission is accepted, there should be a verdict and judgment entered in favour of the Nominal Defendant in the plaintiff's primary claim.
In contrast, the second defendant argued that the evidence does not establish that his vehicle was involved in the accident, or was a cause of the accident.
The Nominal Defendant, supported by the plaintiff, argued that the circumstances disclosed in the evidence supports a conclusion that the second defendant's vehicle has been sufficiently identified on account of the following elements found within the evidence:
The second defendant lived in the Street near where the incident occurred, and at the time he owned at least one white van which was used either by him or by his employees in his cleaning business;
One of the second defendant's white vans, depending on who was using it and in what particular circumstances, was frequently or routinely parked either in the second defendant's driveway, or in Nile Street, either on the same side as the second defendant's home, or on the oppose side;
The evidence of Mrs Douglas, which, whilst variable on what she had seen of the incident involving the plaintiff, gave credible evidence which I accept, to the effect that the van, which was often parked in the Street, was the van involved in the incident in which the plaintiff was injured. She described the van as turning at the place where it always turned;
Mrs Douglas' evidence that she saw the van there all the time (T21.36) and on other days (T24.18; T25.7; T289.4), and her identification of the man living next to number 19, that is number 17a Nile Street, namely, the second defendant's address, must therefore be viewed with some caution.
The problem with that aspect of her evidence is that at T19.14 she described the van as still being used (inferentially by the second defendant) in 2017, when Mr Zaya's unchallenged evidence was that he had ceased living there in 2013: T212.8. Mrs Douglas must have been mistaken in using that expression to refer to the time she gave her evidence in 2017.
In my view, although Mrs Douglas had conflated the time period in that description by referring to the van still being used in the present tense, that does not negate her observation of the van and its historical manner of use at the scene as she described;
The evidence establishes that as at the date of the accident (contrary to Mr Zaya's evidence), he only used one white Toyota Hi Ace 100 Series. The RMS records show that it was registered as RCZ11A in his name: Exhibit "L", p 409.
On the foregoing evidence, I accept the submission made by the Nominal Defendant. I am comfortably satisfied that the vehicle in question was registered RCZ11A in the name of the second defendant as the owner. Whilst I accept Mr Zaya's evidence that he was not the driver at the time of the incident involving the plaintiff, I am satisfied on the evidence, it was his vehicle that was most probably being used by one of his employees, as he described in his evidence as being an occasional occurrence in the course of his business.
It follows from those findings that the Nominal Defendant should have no liability to the plaintiff in these proceedings involving the subject accident on 5 October 2011.
Accordingly, on the balance of probabilities, I find that the owner of the white van which the plaintiff claims was at fault in the accident has been satisfactorily identified as being the second defendant, Mr Sam Zaya. Consequently, the plaintiff's claim against the Nominal Defendant must fail. The costs consequences of that conclusion must be reserved for later argument.

[29]

Consideration of the utility of the expert liability evidence

It becomes necessary to grapple or wrestle with the differing expert opinions to seek to reconcile them in order to reach a reasoned concluded view as to which aspects should be accepted as being a reasonable guide to the task of making findings on relevant matters of disputed fact: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66].
In that regard, the opinions of experts are more likely to be of assistance if the basis for their opinions is sufficiently similar or mirrored in the factual circumstances of the case to be decided: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].
In this case there are some significant features of the expert evidence which indicate it to be based in part on unsafe speculation and in part on scientific method, where the latter element does not serve to overcome concerns arising from the former element.
At the foundation of the opinions of the experts is the unsatisfactory evidence of Senior Constable Doubleday. In stating this view, I intend no disrespect to him, nor do I suggest any malafides on his part. However, there are three elements within his evidence which form the basis for the analysis by the experts. Those elements are: 1. He based his investigatory inference of the plaintiff's speed in excess of 100kph on the views of non-existent witnesses, where his statement to that effect has infused his evidence, such that this element cannot be segregated or quarantined from the analysis of the expert opinion of Mr Hall; 2. His evidence as to the estimated distances over which he assessed the marks on the road was inherently inaccurate in several respects. First he paced out the skid marks in a manner that must include a margin for error. Secondly, his estimate of the length of the gouge marks was visual, which also had inherent scope for significant error; 3. He had an admittedly wrong view of the applicable speed limit, where he thought it was 60kph when it was 50kph, and this appears to have influenced his approach to the tasks of describing the events.
In my view, those difficulties presented the experts, particularly Mr Hall, with an unsound starting point for the analysis where the approach had not been more rigorously framed by the solicitors who commissioned the experts, as they noted at the outset in their joint report: Exhibit "2", p 28.
In my view, Mr Hall's attempt to allow for such error, namely a margin of 20 per cent, was arbitrary and speculatively unsafe, and whilst convenient, lacked the rigour of greater precision that is expected of scientific analysis within expert evidence. It was the equivalent of insufficiently supported guesswork, which does not adequately serve to redeem the flawed nature of the exercise, given its importance to determining the rights and liabilities of the parties.
An added feature embedded in his evidence is the inherently unsound assumption to the effect that a police officer's estimates of distance, without actual measurement, are unlikely to be incorrect. There is no foundation which justifies an acceptance of such an assumption, especially where Senior Constable Doubleday fairly conceded there was scope for error. The extent to which he allowed for error was also inherently imprecise.
Mr Blom was correct in his expressions of caution against accepting some of the assumptions made by Mr Hall, as based on Senior Counsel Doubleday's limited observations.
The defendants seek to pit that imprecise evidence and methodology against the plaintiff's factual evidence to seek to displace the apparent reliability of that evidence. I do not accept that approach as a reasonable basis for displacing the factual evidence of the plaintiff as to his speed of about 50kph, where the plaintiff's evidence was not glaringly improbable, and was capable of acceptance, without more.
On the analysis provided by the experts, the array of estimates of the plaintiff's speed was 50kph in Mr Blom's view, and in excess of 80kph in Mr Hall's view.
Those discrepant views are not of a minor character. They cannot be rationally reconciled on the evidence other than by reference to unsafe assumptions that are not sufficiently reflected in the evidence: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. This is especially so where variables such as the precise sliding distances, either with or without the slowing effects of rotation or spinning whilst sliding, and the other factors pointed to by Mr Blom, remain unknown. The absence of evidence concerning those factors cannot be supplanted in by guesswork by experts, no matter how superficially attractive it has been presented.
I therefore conclude that the expert engineering evidence as called by the parties that seeks to reconstruct the speed of the plaintiff's motorcycle in the events of the accident is of limited utility, and it does not provide a reliable or a reasonable means by which to contradict the plaintiff's factual evidence, or to base a reliable conclusion that, the plaintiff was travelling at an excessive speed, that is, more than 50kph.

[30]

Issue 3 - Factual circumstances of the accident

I preface my findings of fact concerning the accident circumstances by identifying my impression that on the liability issues, the plaintiff was a truthful witness who did his best to honestly recount the factual matters about which he gave his evidence concerning the circumstances of the accident, and its aftermath. In reaching that view I have not overlooked the defence submission that the plaintiff has exaggerated aspects of his damages claim. That argument will be taken up at a later point in these reasons concerning that aspect of the claim.
Obviously, some aspects of the plaintiff's recollection may be open to doubt due to the passage of time. He conceded his recollection was limited on some aspects of the collision. However, I did not gain the impression that the plaintiff's factual account of the liability events was materially afflicted in that way. I do not accept that he exaggerated his evidence about the factual circumstances that surrounded the accident.
In cases where the passage of time raises the spectre of potentially fallible memory being an unsatisfactory basis for determining factual disputes, contemporaneous and relatively contemporaneous documents provide a useful means for evaluating oral testimony: Watson v Foxman & Ors (2000) 49 NSWLR 315; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, at [31].
The plaintiff's account of the events of the accident on 5 October 2011 was initially clouded by the concussive effects of the head injury he sustained in that accident. His initial accounts to Senior Constable Doubleday reflected that fact. The account he gave to Senior Constable Doubleday when he was still in hospital, and was fit to do so, was not inherently improbable.
The plaintiff's recollection has to be assessed in light of the other oral evidence given in the proceedings from Senior Constable Doubleday, Mrs Douglas, Mr Ida, Mr Sawa and the second defendant, Mr Zaya. My findings of fact which now follow are distilled from that evidence.
There is no dispute that the plaintiff rode his motorcycle to the point at the accident scene where he fell from it and sustained his injuries. Those injuries will in due course be the subject of findings in connection with the assessment of damages.
The evidence of the witnesses Mrs Douglas, Mr Ida and Mr Sawa was of limited assistance as they did not see the plaintiff travelling over the distance from when he entered Nile Street to the point where he fell from his motorcycle. The importance of their evidence is confirmation of the presence of the white van.
The remaining central factual matters in dispute are first, the manner and the speed at which the plaintiff's motorcycle was travelling to the point where he fell from it, secondly, what caused him to fall, thirdly, what happened to his motorcycle in the events that followed, and fourthly, did the actions of the driver of the second defendant's white van cause the accident.

[37]

Issue 5 - Alleged negligence

The plaintiff alleges that the driver of the white van that commenced a U-turn in front of him was negligent. The plaintiff's particulars of negligence alleged that the driver: 1. Failed to keep any or any proper lookout. 2. Failed to keep his motor vehicle under any or any proper control. 3. Drove or attempted to drive across the path of the plaintiff's motorcycle when there was neither time nor space to do so. 4. Failed to apply the brakes of his motor vehicle in time to avoid placing the plaintiff in a position of peril. 5. Failed to so steer or control his motor vehicle so as to avoid placing the plaintiff in a position of peril.
For the plaintiff to prove that the driver of the white van was negligent he must satisfy the requirements of s 5B(1), s 5B(2) and s 5C of the Civil Liability Act 2002 (NSW) ("CL Act").
It is unquestionable that a driver intending to make a U-turn from the kerbside from a stationary position ought to be taken to know it was foreseeable that in doing so, without signalling or otherwise warning traffic approaching from behind, that a collision could occur: s 5B(1)(a) of the CL Act. That risk was not insignificant, even in suburban residential streets, as was the case in this instance: s 5B(1)(b) of the CL Act. In those circumstances, a reasonable person in the position of that driver would take precautions: s 5B(1)(c) of the CL Act.
Such precautions would have included keeping a proper lookout so as to ensure there would be no collision with vehicles approaching from behind, including motorcycles, remaining stationary until any such approaching vehicles had passed, signalling with indicators to communicate the intention to other road users that the vehicle was about to enter the roadway and turn across the path of traffic, and remaining stationary until traffic approaching in close proximity had passed or was clear from the risk of an imminent collision.
If such precautions were not taken in the described circumstances, the probability of harm from a collision would be high: s 5B(2)(a) of the CL Act. Serious harm in the form of a wide variety of injuries was very likely to ensue if such precautions were not taken: s 5B(2)(b) of the CL Act. The burden of taking the identified precautions was negligible in the circumstances: s 5B(2)(c) and s 5C(a) of the CL Act. There are no countervailing considerations of social utility in such circumstances: s 5B(2) of the CL Act.
The plaintiff has satisfied all of the statutory requirements for making a finding of negligence. I find that the driver of the second defendant's vehicle that commenced to make a U-turn across the path of the plaintiff's motorcycle causing him to lose control and fall, sustaining injury, was negligent in doing so. If that driver had remained stationary until the motorcycle had either passed or stopped, the accident and the plaintiff's injuries would not have occurred.

[38]

Issue 6 - Alleged contributory negligence

In their respective defences, each of the defendants raised a plea of contributory negligence against the plaintiff. The defendants argued there should be an apportionment of up to 50 per cent for the plaintiff's alleged contributory negligence. The particulars of contributory negligence were in common, as follows: 1. Failure to wear a secured crash helmet whilst riding a motorcycle and to heed the risks of riding a motorcycle without the protection of a properly secured crash helmet. 2. Failure to brake soon enough or at all. 3. Failure to steer and control motorcycle. 4. Failure to steer and control motorcycle so as to avoid an accident when danger threatened. 5. Failure to keep a proper lookout. 6. Proceeding at an excessive speed in the circumstances. 7. Proceeding at a speed in excess of the speed limit of 50kph.
In my view the evidence in these proceedings does not sustain the particulars of contributory negligence numbered (1) to (5) above. The evidence is compellingly to the contrary of those allegations.
Although the plaintiff was required to exercise reasonable care and skill for his own safety, and also in respect of other road users, he was not required to defensively assume that a vehicle parked by the side of the road would make a U-turn in front of him without due warning, or without signalling the intention to do so: Marien v Gardiner [2013] NSWCA 396, at [35], following Manley v Alexander [2005] HCA 79, at [11], [39]; Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301, at [13].
Particulars of negligence numbered (6) and (7) above in essence raise allegations of excessive speed. The plaintiff's evidence is to the contrary. The evidence of Senior Constable Doubleday, and the evidence of Mr Hall and Mr Blom, does not serve as a reliable basis upon which to contradict or reject the plaintiff's evidence that he was riding his motorcycle at about 50kph at the applicable speed limit. Until the white van commenced making a U-turn without indication, the plaintiff was without notice of particular hazards requiring a lesser speed. His evidence in that regard is on its face credible, and not inherently improbable, and it should be accepted.
I therefore reject the defence that alleges contributory negligence.

[41]

Plaintiff's evidence - damages - summary

The plaintiff was injured at the age 45 years. He is now aged 55 years. He claims he has not been able to resume his pre-accident employment because of his physical and psychological difficulties that have resulted from the accident, and he therefore claims substantial amounts for past and future loss of earnings.
The plaintiff's pre-accident health was not problem-free. Not unusually for someone who has been engaged in manual work all his working life, he carried the effects of prior injuries and conditions of ill-health that would have impacted upon his earning capacity and those matters must be taken into account.
The medical evidence on the plaintiff's prior conditions of health is sparse, but it emerges from within the substantial body of documentary evidence. It will shortly be identified in paragraph [211] below, in a chronological order that spans the medical evidence in the pre-accident and post-accident periods.
The opinion evidence within that body of material is extensive. Some of it is in conflict and requires analysis in order to reach findings on which aspects of that evidence should be preferred before findings can be made on the nature and the extent of the plaintiff's injuries and post-accident disabilities as that must form the basis of the required assessment of damages.
The defence has submitted that the plaintiff has exaggerated the extent of his post-accident problems. I do not accept that submission.
In my assessment, the plaintiff did his best to provide a truthful account of his situation. However, and perhaps without a full understanding, he has regarded some of his impairments as being accident-related when the preponderance of the medical evidence shows that not all of his claimed disabilities can be attributed to the subject accident.
That said, the plaintiff must be taken as he is found and it is plain that the accident in question has had a devastating effect on his life, including some aggravating effects: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18], p 406.
As the plaintiff's claim for damages is limited to specific heads of pecuniary damage, it is not necessary to analyse the medical evidence to the extent that would otherwise be required for an assessment of damages for pain, suffering, and loss of amenity of life, as when assessing damages for non-economic loss.

[47]

Pre-accident consultations 1. The plaintiff's pre-accident medical history has been sparsely documented. Information concerning that history comes principally from the report of Dr AJ Sanki, a general surgeon who has treated the plaintiff for various matters over a number of years: Exhibit "D", pp 4 - 11. The chronology of that clinical information which emerged from Dr Sanki's report is as follows: 1. Between 1999 and 2000, Dr Sanki treated the plaintiff for bilateral carpal tunnel syndrome which arose whilst the plaintiff was working with mechanical spraying machines; 2. In 2000, the plaintiff had treatment for supraspinatus tendinopathy with cortisone injected into the right shoulder; 3. In 2000, the plaintiff had treatment for osteoarthritis in both knee joints; 4. In 2001, the plaintiff experienced numbness in both elbows, and had headaches, an MRI scan showed the plaintiff to have C4-5-6-7 posterior projecting osteophytes, the larger one being on the right paracentral level at C5-6 and another large on at C6-7; 5. On 11 November 2002, Dr Sanki saw the plaintiff for problems to do with his knees locking up. An MRI revealed a torn right posterior horn of the medial meniscus which was treated by means of arthroscopy; 6. In October 2003, the plaintiff was found to have fissuring of the medial facet of one of his patellae; 7. On 11 August 2011, eight weeks before the subject accident, the plaintiff had a fractured scaphoid which required surgical removal by Dr Dave; 1. In 2008, the plaintiff started seeing Dr Jaye Dave, an orthopaedic surgeon, for problems with his back, and related paraesthesia, relating to his work on ladders: Exhibit "L", pp 442 - 444; 2. On 8 February 2011, the plaintiff consulted Dr Chandra Dave, an orthopaedic surgeon, about a left hand injury following a fall at work 5 months earlier: Exhibit "L", p 442; 3. Between 10 March 2011 and 8 August 2011, the plaintiff received WorkCover certificates in relation to his unfitness for work on account of his work-injury-related left scaphoid problems: Exhibit "L", pp 446 - 449; 4. On 11 August 2011, 2 months before the subject accident, Dr Dave excised the distal pole of the plaintiff's left scaphoid: Exhibit "L", p 442. That operation would have resulted in a significant period of incapacity for manual work before the subject accident;

[48]

Post-accident consultations 1. The plaintiff was admitted to Westmead Hospital on 5 October 2011. Unusually for this type of case, the full clinical records for that admission are not in evidence. The extract of those records that has been tendered in evidence shows the contemporaneous medical survey of the plaintiff's injuries identified a loss of consciousness with amnesia for the events, frontal abrasions to the head, an occipital laceration, an injury to the lower cervical spine, a fractured right scaphoid, a fractured left hamate, abrasions to forearms, an abrasion to the left hip, and abrasions to the knees: Exhibit "L", p 432; 2. On 11 October 2011, Dr Sanki recorded that the plaintiff had attended on Dr Fernandopulle, a general practitioner, after the accident and as a result, the plaintiff had been referred to him. He noted the plaintiff's complaints as scalp lacerations, as well as pain and stiffness in his hands, wrists, knees, back, neck and shoulders. That attendance was to obtain a medical certificate for an insurance claim, possibly on an income replacement policy: Exhibit "L", pp 453 - 459; 3. On 28 October 2011, the plaintiff saw Dr Dave about the injuries he sustained in the subject accident. The plaintiff complained about his left hand. There were no complaints recorded concerning other parts of his body at that time: Exhibit "L", p 442; 4. In February 2012, as noted by Dr Sanki, the plaintiff complained of pain in the back of his right hip, and in the 4th and 5th metacarpal bones, difficulty flexing his fingers in both hands, and a feeling of tingling in the fingers of both hands. Nerve conduction studies revealed delayed action in the right median nerve. The back pain was neurologically investigated by MRI and hip pathology was excluded. The hip pain was thought to be pain referred from the plaintiff's back. MRI studies were suggested. There is no report from the assessing neurosurgeon, Dr Van Gelder. The MRI appears to have been carried out years later, in 2014: Exhibit "D", p 6; 5. On 20 February 2012, at the request of his solicitor, the plaintiff was assessed by Dr John Bentivoglio, a consultant orthopaedic surgeon, who expressed some whole person impairment ratings for the plaintiff's orthopaedic problems relating to his neck, back, knee and shoulder complaints: Exhibit "D", p 23; 6. On 23 April 2012, Dr Sanki noted the plaintiff complained of pain in both knee joints. He was advised to have an MRI but this was not done immediately due to his lack of funds: Exhibit "D", p 7; 7. On 3 August 2012, the plaintiff underwent MRI scanning of his lumbar spine and both knees. Dr Kevin Tay reported the plaintiff had degenerative changes in his lumbar spine at L2/3, a broad-based disc protrusion at L5/S1 with stenosis of the L5 neural exit foramina. The right knee had meniscal tears. A CT of the right femur was recommended to better assess a medullary lesion: Exhibit "D", pp 1 - 2; 8. On 10 September 2012, according to the report of Dr Sanki dated 26 April 2015, an MRI confirmed the presence of bilateral carpal tunnel syndrome in the plaintiff's wrists: Exhibit "D", p 6; 9. On 10 September 2012, or thereabouts, the plaintiff had shoulder ultrasounds which confirmed the presence of left sub-acromial bursitis which was treated with a cortisone injection into that shoulder. At that time, an ultrasound of the plaintiff's right elbow showed the presence of right ulna nerve neuritis. The ultrasound on the right shoulder around that time showed supraspinatus tendonitis: Exhibit "D", p 6; 10. On 26 October 2012, the plaintiff underwent a medico-legal assessment by Dr Dennis Cordato, a consultant neurologist, who reviewed his complaints and expressed a percentage whole person impairment assessment of 15 per cent: Exhibit "D", pp 67 - 70; 11. On 27 November 2012, at the request of his solicitors, the plaintiff underwent an orthopaedic assessment by Dr John Bentivoglio. He considered the prognosis for the plaintiff's neck problems was guarded, the permanent damage at L5/S1 was assessed as likely to cause ongoing symptoms, possibly indefinitely, and the prognosis for both knees was for ongoing problems that would be difficult to treat, he has ongoing right shoulder problems, there is a risk that the right hip symptoms could lead to degenerative osteoarthritis and the prognosis for the plaintiff's hand problems remains guarded. He stated that the plaintiff is not capable of returning to work: Exhibit "D", pp 17 - 22; 12. On 30 March 2013, the plaintiff attended Dr Ali Sarfraz who diagnosed tenderness in his hands and arms, with restricted knee and neck movements. He was referred for physiotherapy. In a separate medical certificate of the same date Dr Sarfraz also noted the plaintiff had received injuries to his neck, back, right hip, both knees, his left little toe, his face and both arms: Exhibit "L", p 443; 13. On 16 April 2013, the plaintiff was re-assessed by Dr Bentivoglio who issued a further report that modified his earlier assessment of the plaintiff's percentage of whole person impairment rating in light of more recent investigations: Exhibit "D", pp 26 - 27; 14. On 19 April 2013, the plaintiff was re-assessed by Dr Bentivoglio who noted the plaintiff's prior medical records and noted that he had significant pre-existing damage to his lumbar spine, as well as in his neck from the early 2000's, that is, longstanding pre-existing degenerative disease in his shoulders, and pre-existing chondromalacia in his right knee: Exhibit "D", pp 24 - 25; 15. On 30 July 2013, at the request of the first defendant's solicitor, the plaintiff was examined by Dr Michael Lim, an occupational medicine physician. After reviewing the plaintiff's history, including between 1996 and 7 September 2011, and thereafter, and conducting a physical examination, and reviewing investigation results and the medical reports provided to him, Dr Lim concluded, from the plaintiff's alleged behavioural responses to examination, that he had not injured his neck, shoulders, back or left knee. He also concluded that all the plaintiff's injuries had healed without ongoing disabilities. Dr Lim considered the plaintiff had not given a satisfactory account of his medical history. I considered that comment to be too harsh a judgment in the circumstances and I discount that opinion. Dr Lim had not adequately dealt with the aggravating effect of those injuries on the plaintiff's underlying conditions of health. I therefore found his analysis to be of limited assistance: Exhibit "1", pp 1 - 26; 16. On 13 August 2013, Assessor McGroder issued a MAS Certificate assessing a whole person permanent impairment of 14 per cent for aggravating injuries to the neck, lumbar spine, injuries to the hands, both knees and the left toe fracture: Exhibit "D", pp 184 - 198; 17. On 12 September 2013, Assessor Veerabangsa assessed the plaintiff to have a mild traumatic brain injury due to the subject accident, but no additional percentage whole person impairment followed from that assessment: Exhibit "D", pp 203 - 211; 18. On 10 October 2013, Assessor Wood issued a MAS Certificate certifying the plaintiff's combined percentage of whole person impairment at 14 per cent: Exhibit "D", pp 200 - 202; 19. On 28 October 2013, at the request of his solicitor, the plaintiff was examined by Dr Uthem Dias, an occupational medicine physician. He diagnosed a bilateral carpal tunnel syndrome affecting both wrists. He considered the main contributory factor to that condition to be due to the plaintiff's employment. Dr Dias noted the plaintiff's weight at this time to be 121kg (at p 627), and (at p 630), he identified the plaintiff's left wrist and carpal tunnel syndrome as being due to the nature of the plaintiff's work prior to the subject motorcycle accident. he considered (at pp 631 - 632), that (pre-existing) condition rendered him unfit to return to that type of work because it would further aggravate the carpal tunnel problem by use of the vibrating equipment involved in that work. Instead, he said (at p 631), the plaintiff should pursue a lighter occupation but a barrier to that goal is the effects of the accident on 5 October 2011 which made him unsuitable for any form of employment: Exhibit "1", pp 35 - 55; Exhibit "L", pp 620 - 633; 20. On 5 November 2013, the plaintiff was re-assessed by Dr Bentivoglio who reviewed his back, neck, hand, knee and little left toe problems. He saw no reason to alter his previous opinions. He was still considered to be incapable of returning to the workforce since his injury: Exhibit "D", pp 28 - 32; Exhibit "L", pp 620 - 633; 21. On 4 December 2013, at the request of his solicitors, the plaintiff was psychiatrically assessed by Dr Robert Hampshire, who diagnosed the plaintiff to have a post-traumatic stress disorder of mild to moderate severity with co-morbid dissociative states, panic attacks, and depression, which were considered to be chronic and stable, but having a guarded long-term prognosis: Exhibit "D", pp 34 - 44; 22. In January 2014, according to Dr Sanki's report dated 26 April 2015, a Dr Dave had concluded the plaintiff had symptoms consistent with lateral epicondylitis: Exhibit "D", p 6; 23. On an uncertain date, possibly in 2014, according to Dr Sanki's report dated 26 April 2015, a physiotherapist, Mr Boland, reported that the plaintiff had a chronic pain syndrome and no further details of this are known: Exhibit "D", p 6; 24. On 9 January 2014, Assessor Reutens issued a MAS Certificate that stated some of the plaintiff's psychiatric problems were due to the subject accident, namely, an adjustment disorder with mixed anxiety and depressed mood (a reformulation of the former concept of PTSD and mild to moderate depression). She certified the plaintiff's co-morbid dissociative state was not due to the subject accident: Exhibit "D", pp 213 - 226; 25. On 13 January 2014, the plaintiff consulted Dr Dave to review the effects of the accident. Dr Dave wrote to Dr Sanki to advise of the need for electrophysiological investigations. He suggested the plaintiff had lateral epicondylitis of the right elbow: Exhibit "L", p 441; 26. On 13 January 2014, the plaintiff saw Dr Dave about his right hand and wrist problems and bilateral epicondylitis as well as an unspecified knee problem: Exhibit "L", p 443; 27. On 3 March 2014, at the request of his solicitor, the plaintiff was assessed by Dr Peter Giblin, a consultant orthopaedic surgeon. He carefully recorded the plaintiff's pre-existing injuries (between 1993 and 2008), his current complaints of neck, shoulder, back, hand, knee and foot problems. He also reviewed a series of imaging scans in the period 2010 to 2013. Dr Giblin noted a number of areas of permanent unfitness for work. He considered the plaintiff was fit for sedentary work but with his physical restrictions, he may be susceptible to aggravation and long term deterioration. He supported conservative treatment and vocational rehabilitation: Exhibit "D", pp 53 - 60; 28. On 3 March 2014, Dr Giblin expressed the opinion the plaintiff had an 18 per cent whole person impairment: Exhibit "D", pp 61 - 62; 29. On 23 April 2014, Dr Dave, orthopaedic surgeon, recommended that the plaintiff have an excision of his united scaphoid in the left wrist. The history was a fall on his outstretched hand 5 months earlier, in November 2013. Dr Dave saw CT scans that were reported as showing a possible fracture of the left hamate bone and the fourth metacarpal: Exhibit "L", pp 436 - 440; 30. On 25 June 2014, the plaintiff consulted Dr Van Gelder, a consultant neurologist, at the referral of Dr Sanki. Dr Van Gelder recorded a history of injuries to his neck, low back, knee, right hip and left foot. Dr Van Gelder reviewed the plaintiff's neck, shoulder, upper limb and low back symptoms with radiated symptoms. Dr Van Gelder referred the plaintiff to Dr Dowla for neurophysiological tests: Exhibit "L", pp 461 - 462; 31. On 30 July 2014, according to Dr Sanki's report dated 26 April 2015, the plaintiff was examined by a neurologist, Dr Dolan (sic for Dowla), who considered he was suffering from bilateral ulnar nerve motor slowing across the elbow joints with residual median nerve slowing bilaterally more severe on the right side due to incomplete neurolysis. A further decompression of the right carpal tunnel was recommended: Exhibit "D", p 7; 32. On 30 July 2014, Dr Dowla carried out neurophysiological testing of the plaintiff's upper limbs and suggested decompression of the right carpal tunnel: Exhibit "L", pp 465 - 466; 33. On 5 August 2014, according to Dr Sanki's report dated 26 April 2015, the plaintiff had a lumbar MRI that showed a left postero-lateral disc protrusion at L5-S1 encroaching on the left S1 nerve root, but without displacement: Exhibit "D", p 6; 34. Between 2014 and 2018, the plaintiff's general practitioner recorded the plaintiff's active medical problem to be major depression in and the inactive problems to historical osteoarthritis in his feet, gout, bilateral tennis elbow, cervical and lumbar radiculopathy: Exhibit "L", p 467; 35. On 23 February 2015, at the request of his solicitor the plaintiff was assessed by Mr Stephen Buddle, a consultant rehabilitation advisor. Mr Buddle recorded a pre-accident work injury (at p 611), on 1 September 2010, involving a fall leading to a left wrist injury involving a fractured scaphoid, and a pre-existing carpal tunnel problem that may have been aggravated by that fall. Mr Buddle identified the earnings of a mechanical engineering technician at Crystal Car Wash to be $120,000 or $2308 per week gross (at p 612), and he then identified some other job classifications that suggested (at p 618), loss of about $1400 per week gross after allowing for lighter duty mitigatory earnings of $908 per week gross: Exhibit "L", pp 610 - 619; 36. On 25 September 2015, Dr Dowla reported that the plaintiff has bilateral median nerve slowing at the wrist: Exhibit "L", p 464; 37. On 10 November 2014, Dr Dave saw the plaintiff for his upper limb problems and suggested an MRI investigation of the cervical spine: Exhibit "L", p 443; 38. On 17 February 2015, the plaintiff saw Dr Dave for a final consultation. The MRI scans of the neck and wrists showed degenerative changes but no obvious lesions that could explain all of the plaintiff's symptoms. Da Dave suggested pain management and physiotherapy: Exhibit "L", p 443; 39. On 30 March 2015, Assessor Assem assessed the plaintiff's head, neck, shoulders, hands, back, knee, left foot and right hip injuries to be accident-related: Exhibit "1", pp 94 - 119; 40. On 28 April 2015, Dr Sanki wrote a report on the plaintiff's medical history. Dr Sanki first saw the plaintiff concerning the subject accident on 9 January 2012. He recorded an incorrect history of being hit by a car as was noted. Dr Sanki's report went back to 1999 and dealt with matters of history up to 11 August 2011 as the plaintiff was known to him concerning his pre-motorcycle accident problems with his elbows, neck, right shoulder tendinopathy, bilateral knee joint osteoarthritis and locking, and a fractured scaphoid. On 5 December 2011 the plaintiff was noted to have problems to do with the motorcycle accident and at that time was undergoing rehabilitation treatment for bilateral carpal tunnel problems, osteophytes and disc lesions at C5-6-7, lumbar disc lesions at L4-5, L5-S1 with osteophytes, and knee and scaphoid problems: Exhibit "D", pp 4 - 10; 41. On 28 April 2015, Dr Sanki noted the plaintiff had put on 25kg due to lack of activity. He noted the plaintiff was complaining of severe pain in the cervical and lumbar spine with difficulty in movement. He also noted moderately decreased activity of movements in both shoulders and instances of locking in both knees: Exhibit "D", p 7; 42. On 26 July 2015, Dr Sanki considered that the plaintiff's wrist problems could be apportioned as being 50 per cent accident related, his neck and low back problems being 10 per cent pre-accident. At that time, the plaintiff was awaiting carpal tunnel surgery : Exhibit "D", p 11; 43. On 26 May 2016, at the request of his solicitors, the plaintiff was assessed by Dr Clive Sun, a rehabilitation and pain physician. He was of the opinion that the plaintiff's ongoing restriction were related to an accident in September 2015, with the result that he should have restrictions placed on work involving lifting over 8kg, no forceful pushing or pulling, and avoiding above shoulder work or frequent posture changes. The reference to an accident is plainly a typographical error, as is evidence from the history he recorded earlier in his report: Exhibit "D", pp 63 - 66; 44. On 16 August 2016, A review panel assessment by Assessors Burns, Oates and Bowers issued a certificate concerning the plaintiff's need for treatment limited to neck, shoulder and back massage: Exhibit "D", pp 227 - 237; 45. On 1 December 2016, under the supervision of Dr Hsu, the plaintiff underwent a diagnostic sleep study which showed very severe obstructive sleep apnoea with severe arterial oxygen saturation, (sic). An urgent follow-up appointment was to be made for this problem: Exhibit "D", pp 14 - 15; 46. On 28 April 2017, the plaintiff's endocrinologist stated that the plaintiff's low testosterone levels was secondary to his chronic obesity, pain and depression: Exhibit "D", p 16; 47. On 1 May 2017, the plaintiff was psychiatrically re-assessed by Dr Robert Hampshire for medico-legal purposes. Dr Hampshire noted the plaintiff's former stoicism had left him, he complained of neck pain, headaches, shoulder and back pain, referred pain into the legs, depression and distress. Dr Hampshire reiterated his previous diagnosis, but said the plaintiff now suffered from Major Depressive Disorder which is severe, with marked melancholic features: Exhibit "D", pp 45 - 51; 48. On 9 May 2017, Assessor Fitzgerald issued a certificate identifying the plaintiff's percentage whole person impairment for the combined brain, hand, foot, neck, back and knee problems at 8 per cent: Exhibit "D", pp 238 - 239; pp 251 - 252; 49. On 11 May 2017, the plaintiff was reviewed by Dr Kelvin Hsu who confirmed he had severe obstructive sleep apnoea with severe arterial oxygen desaturation, which if left untreated placed him at increased risk of developing cardiovascular and cerebrovascular disease: Exhibit "D", pp 12 - 13; 50. On 26 July 2017, the plaintiff was re-examined by Dr Lim at the request of the first defendant's solicitor. He stated his view that the only injuries sustained by the plaintiff were: a concussive head injury without neurological sequelae other than amnesia; a scalp laceration; superficial bruises and grazes; a fractured left hamate; a fractured 1st metacarpal of the right hand; a bruised right hip; grazes to both knees; bruised toes and a fractured left little toe. He disagreed with some of the MAS assessors' certificates: Exhibit "1", pp 27 - 34; 51. On 9 April 2018, the plaintiff saw Dr Nadia Tejani, an endocrinologist, for his obesity and reduced testosterone levels. Depression was identified as the problem needing treatment: Exhibit "L", p 488; 52. On 31 July 2018, the plaintiff's general practitioner placed him on a mental health programme for his depression, insomnia and anxiety following his motor vehicle accident: Exhibit "L", pp 476 - 484; 53. On 31 July 2018, the plaintiff was the subject of a general practitioner mental health plan for his depression, anxiety and insomnia following the motorcycle accident: Exhibit "L", pp 504 - 508; 54. On 11 February 2019, Assessor Ashwell issued a MAS certificate identifying a current whole person impairment rating of 10 per cent, but reduced by 2 per cent to allow for pre-existing conditions, yielding a final impairment of 8 per cent: Exhibit "D", pp 240 - 250; 55. On 25 February 2019, Dr NT Renganathan, a cardiologist, wrote to Dr Fernandopulle noting the plaintiff's history of dyslipidaemia, hypertension, chronic back pain for cervical spondylosis with radiculopathy, obesity and obstructive sleep apnoea for assessment of cardiovascular risks and lower limb swelling. Further investigations were planned: Exhibit "L", pp 486 - 487; 56. On 19 August 2019, Mr Christopher Kaleh, a psychologist, wrote to Dr Fernandopulle recommending CBT for his extreme psychological distress, altered mood and anxiety with knock-on effects on his concentration, attention and memory: Exhibit "L", p 485; 57. On 10 March 2020, Assessor Perla assessed the plaintiff's injuries as related to the subject accident to comprise soft tissue injuries to the cervical and lumbar spines, both knees and right hip. He also assessed the plaintiff's foot fracture and hand injuries, and the soft tissue injuries to those latter two areas, to have resolved: Exhibit "L", pp 654 - 679; 58. On 6 October 2020, at the request of his solicitor, the plaintiff was assessed by Dr Clive Sun, a consultant rehabilitation specialist. Dr Sun's reports were dated 9 June 2016, 21 June 2019 and a conclave report with Dr Lim on 26 June 2019. In this latest report by Dr Lim, based on a further examination of the plaintiff, it was noted (at p 606), the plaintiff had gained more weight, and was now 135kg, having gained 35kg, and had developed hypertension and sleep apnoea. Dr Sun believed (at p 607), that the plaintiff's injuries from the accident were concussion, soft tissue injuries to the cervical and lumbar spines and to both shoulders, as well as to his right hip and both knees: Exhibit "L", pp 476 - 484; 59. On 8 October 2020, at the request of his solicitor, the plaintiff underwent a vocational assessment by Mr Ross Girdler. Mr Girdler expressed the view (at p 636), that the effect of the physical and psychological injuries suffered by the plaintiff in his 5 October 2011 motorcycle accident prevented him from returning to his pre-accident employment. The assumptions within that opinion require critical evaluation in light of the opinion expressed by Dr Dias: Exhibit "L", pp 634 - 643; 60. On 3 November 2020, at the request of his solicitor, the plaintiff was assessed by Dr Julian Parmegiani, a consultant psychiatrist. Dr Parmegiani diagnosed the plaintiff with an adjustment disorder with mixed anxiety and depressed mood caused by the subject accident: Exhibit "L", pp 596 - 604; 61. On 11 November 2020, at the request of the second defendant, the plaintiff was examined by Dr Graham Vickery, a consultant psychiatrist: Exhibit "11". Dr Vickery expressed his findings in what seems to be adjectivally qualified terms. He stated there "was no apparent clinically significant anxiety, melancholic depression, paranoid delusional ideation or formal thought disorder. There was no apparent incapacitating cognitive impairment", and "no apparent psychiatric impairment noted in the clinical examination", nor was there a "diagnosable DSM5 psychiatric disorder due to the motor vehicle accident". Dr Vickery's report did not explore any prior medical history or prior psychological psychiatric history. I therefore considered his report to be superficial as it did not include the plaintiff's relevant medical history. I place little reliance upon that report.

The materials identified above will be reviewed and analysed for the purpose of identifying my findings as to the plaintiff's injuries, his accident-related disabilities, and in connection with the assessment of his entitlement to damages.

[51]

The consultant occupational physicians: Dr Lim and Dr Sun

The effect of the 15 August 2013 and 30 July 2017 reports of Dr Lim is that he is of the view that the plaintiff's injuries were limited to a concussive head injury, a scalp laceration, superficial bruising and grazes, a fractured left hamate, a fractured right first metacarpal, a bruised right hip, bruises to some toes, and a fractured left little toe. He was of the opinion the plaintiff had not injured his neck, shoulders, back or left knee in the accident on 5 October 2011: Exhibit "1", pp 1 - 34.
The effect of the 9 June 2016, 21 June 2019 and 9 November 2020 reports of Dr Sun is that he considered the plaintiff's accident-related injuries included concussion and soft tissue injuries to the cervical spine, the lumbar spine, both shoulders, the right hip and both knees, in addition to the fractures, abrasions and lacerations: Exhibit "L", pp 607 - 608.
In my view, although Dr Lim undertook a meticulous medical analysis, he did not analyse in detail the likely mechanism of the plaintiff's accident in terms of what happened to various parts of the plaintiff's body when it came into contact with the roadway in terms of the potential injurious effects of those events. In that sense, I consider his analysis of the range of the plaintiff's injuries was superficial and reliant only on the objective records which did not completely document those injuries.
In my view, Dr Lim's approach either overlooked or did not take into account relevant material that is in evidence in these proceedings, namely the medical certificate of Dr AJ Sanki dated 11 October 2011 which, with relative contemporaneity, recorded the plaintiff's history of "pain stiffness hands wrists knees back, neck shoulders": Exhibit "L", pp 457 - 459. The extensive list of documents considered by Dr Lim (at Exhibit "L", p 9 and Exhibit "L", p 31), did not refer to that record,
I therefore conclude that Dr Lim's opinions have been based on an unduly narrow and necessarily incomplete consideration of relevant matters of contemporary history. As a consequence, I consider that the opinions of Dr Sun, and those of Dr Bentivoglio, Dr Giblin, Dr Dias and Dr Dave, are a more reliable source of guidance to determining the nature and extent of the plaintiff's injuries sustained in the accident on 5 October 2011.

[52]

The consultant psychiatrists: Dr Hampshire, Dr Parmegiani and Dr Vickery

As summarised at sub-paragraph (66) of paragraph [211] above, Dr Vickery's psychiatric opinion dated 11 November 2020, which was qualified in the adjectival terms "significant" and "apparent" concluded the plaintiff had no psychiatric impairment or diagnosable DSM5 psychiatric disorder. I consider that little weight should be placed on that opinion because of the limited basis of his analysis in terms of history. He was provided with little in the way of background material.
In contrast to Dr Vickery's opinion, an earlier MAS Assessment by Assessor Reutens on 9 January 2014 identified the plaintiff has having an adjustment disorder, with mixed anxiety and depressed mood as a result of the accident on 5 October 2011: Exhibit "D", pp 213 - 226.
Contrary to Dr Vickery's opinions, between 2014 and 2018, the clinical records of the plaintiff's treating general practitioner recorded the plaintiff as having an active diagnosis of major depression: Exhibit "L", p 467.
In his reports dated 4 December 2013 and 1 May 2017 (Exhibit "D", pp 34 - 44 and Exhibit "D", pp 45 - 51), former consultant psychiatrist Dr Hampshire identified the plaintiff to have initially had accident-related PTSD of mild to moderate severity with panic attacks and depression, and then later, a major depressive disorder with depressive features.
On 3 November 2020, just days before Dr Vickery's assessment, Dr Parmegiani's diagnosis of the plaintiff was that he had an accident-related adjustment disorder with mixed anxiety and depressed mood: Exhibit "L", pp 596 - 604.
In light of the other historical assessments summarised above, which I consider to be apt and which should be preferred, I conclude that Dr Vickery's assessment should not be accepted. In my view, the preponderance of the medical evidence supports the conclusion that the plaintiff has depression and anxiety and an adjustment disorder as a consequence of the injuries he sustained in the motorcycle accident on 5 October 2011.

[53]

Conflict as to the plaintiff's work incapacity and residual work capacity

The medical opinions on the question of the plaintiff's work incapacity require analysis in a chronological context.
Any analysis of the plaintiff's work incapacity must take into account his underlying pre-accident history of carpal tunnel and wrist problems, including wrist surgery in July 2011, along with pre-existing osteoarthritis in both knees, shoulder problems, and degenerative changes in his cervical spine (as identified in sub-paragraphs (1) to (5) of paragraph [211] above, and the longstanding pre-existing changes in his lumbar spine (as identified in sub-paragraphs (12) and (19) of paragraph [211] above.
The medical evidence shows that at the time of the accident the plaintiff was still unfit for his usual work because of his left scaphoid problems which resulted in a fall from a roof on 1 September 2010. Dr Sanki noted that the resultant carpal tunnel syndrome was a progressive disease that can result in permanent weakness and loss of sensation in the hand if the affected nerve is not released: Exhibit "L", p 455.
On 28 October 2013, Dr Dias, an occupational physician, diagnosed the plaintiff as having bilateral carpal tunnel syndrome (a genetically determined problem) due to his prior employment: Exhibit "L", p 632). He made no connection between those problems and the accident ton 5 October 2011. His diagnosis was that the plaintiff was unfit to return to his previous employment on account of that bilateral carpal tunnel condition because of the vibratory nature of that previous work, and that the plaintiff should therefore pursue lighter work: Exhibit "L", pp 620 - 633.
The effect of Dr Dias' opinion is that pre-accident, the plaintiff had only a very restricted earning capacity, and the effect of the accident has subsequently made him unfit for any form of employment: Exhibit "L", p 632.
In my view, the work incapacity opinions of Dr Bentivoglio, Dr Giblin, Dr Sun and Dr Lim, must be read in light of the unchallenged opinion of Dr Dias as outlined above, quite apart from any post-accident psychological problems the plaintiff has incurred.

[56]

(1) Plaintiff's background circumstances

The plaintiff's pre-accident work history was heavy and mechanical in nature. He worked for various employers, including having worked as a service technician. He also worked for his father setting up water pressure pipes and equipment for Mr Sahade's Crystal Car Wash business whenever that business opened up new premises. He did the maintenance work on the existing machinery in Mr Sahade's businesses. The plaintiff said that his financial arrangements changed when he became divorced from his wife, which led him to divest himself of a share in his father's business and went onto wages.
Prior to the accident the plaintiff had some months of incapacity due to a work-related injury on 1 September 2010, when he fell on an outstretched hand and suffered a fractured scaphoid. He was still recuperating from hand surgery when the accident occurred.
Shortly before the subject accident, the plaintiff had entered into a contract of employment with his father's business, M&A Pro Pressure Australia Pty Ltd. At that time, his father who had founded the business, had started to suffer from dementia, and the arrangement was for the plaintiff to do all the work of the business. The plan was for him to in due course re-acquire his former share in the business, with his brother, but the accident intervened, and he has not worked since then.
Pre-accident, it was arranged by contract for the plaintiff to be paid $950 per week net and 10 per cent of any projects completed by the company M&A Pro Pressure Australia Pty Ltd. That employment was short-lived. He did not receive any such 10 per cent payments as had been anticipated, and his income from that company stopped after the accident. The business has since ceased to trade.
The plaintiff said he was to be paid at a reduced rate of $25 per hour because it was a family business, and said the usual going rate was more like $50 per hour. He said he could not recall his earnings in his previous job in the 2 years prior to the accident. The documentary evidence shows that the plaintiff's 5 year pre-accident earnings, including the year of the accident, were as follows: TAX ASSESSED TAXABLE INCOME WEEKLY TAXABLE INCOME YEAR 2007 $34,701 $667 2008 $28,892 $555 2009 $17,656 $339 2010 $28,892 $555 2011 $27,813 $534

[57]

[Exhibit "L", pp 645 - 653]

The plaintiff's actual earnings for the period of 14 weeks from 1 July 2011 to 5 October 2011 have not been identified in the evidence. That said, even allowing for the impact of taxation on the figures tabulated above, the evidence of the plaintiff's historical earnings do not show an income of anything near $950 per week net.
The plaintiff was not in the best of health prior to the subject motorcycle accident. It appears that in August 2011, he had a monetary settlement from a previous work injury. In 1993, he also had a previous CTP claim. He also had a fall from a roof in September 2010: T122.32. There was not a lot of information about the effect of the injuries arising from those events.
As explained at paragraphs [229] to [230] above, the medical evidence of Dr Dias referred to in the sub-paragraphs of paragraph [211] above makes it clear that the plaintiff was not fully fit for manual work or heavy work at the time of the motorcycle accident. On 11 July 2011, he had an operation on his left wrist, and although he returned to work in a cast some weeks later, he was restricted in the duties that he could perform: T110.112. He was restricted with the use of his left arm for lifting: T124.5. Those problems would undoubtedly have had an adverse impact on his earning capacity for an uncertain period of time.
In about 2000, the plaintiff's previous operations on both wrists for carpal tunnel releases, must be taken into account in assessing his future economic loss damages: Exhibit "D", p 4. His pre-injury work involved him lifting pumps weighing between 10 to 25kgs. As at the time of the accident, he did not have full use of his hands and arms for that kind of work. He had some prior and lasting problems with his left hand: T125.27. Those matters would doubtless have had an adverse impact on the plaintiff's capacity to work in his pre-accident employment or in similar occupations. The medical evidence tendered in the plaintiff's case does not identify a time when he would have been likely to have regained a fitness to resume full normal duties for his pre-operative work tasks.
The plaintiff's recollection on some factual matters relating to damages issues was limited. This required recourse to such contemporaneous records as are available; to be examined to clarify those issues.

[63]

(3) Disabilities that remain

The duration of any aggravating effect of the accident on the plaintiff's underlying condition raises other questions.
The medical reports show that since the accident on 5 October 2011, the plaintiff has complained of many disabilities. Not all of those complaints have been definitively analysed as relating to the subject accident. The material questions which remain unanswered in the medical evidence are, first, when did the aggravating effects of the plaintiff's accident cease to operate (if at all), or secondly, whether all of the plaintiff's complaints are as a result of the accident.
The plaintiff bears the onus of proof in disentangling the facts that determine those questions: s 5D, s 5E of the CL Act; Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, at [8]; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] - [51].
I am in no doubt that the plaintiff's psychological problems of depression, as described at paragraphs [220] to [225] above, are as a result of the accident on 5 October 2011. Furthermore, it seems that as a result of those problems, and his decreased activity and his amotivation, he has developed significant weight gain and obesity.
As to the degree to which the accident on 5 October 2021, has caused lasting complaints of pain in the plaintiff's neck, shoulders, back and knees, as distinct from what might have been the case but for the accident, the medical evidence tendered does not provide useful guidance to disentangle those questions.
In such cases, it is customary to call explanatory oral evidence from medical experts to provide a rational means by which to decide such issues. The party seeking the benefit of findings in that regard, here the plaintiff, bears the onus in that regard and takes the risk of a negative finding if that onus has not been discharged: Majkic v Bonnano [2008] NSWCA 253, at [26], Larson v Commissioner of Police [2004] NSWCA 126, at [48].
Such matters should be disentangled and determined on a rational non-speculative basis as explained at paragraph [259] above. I am therefore compelled to find that the plaintiff has not discharged the onus of proof on defining all of the particular disabilities that have been caused by the accident on 5 October 2011: s 5D and s 5E of the CL Act.

[65]

(5) Plaintiff's most likely circumstances but for injury

In cases where a projected future loss of weekly income is sought, the assumptions which base such a projection must be stated: s 126 of the MAC Act.
The starting point for identifying the plaintiff's most likely circumstances but for his injury requires that due regard be given to his pre-accident condition of health as identified in sub-paragraphs (1) to (5) of paragraph [211] above.
When those matters are considered it becomes clear that the plaintiff was at pre-accident risk of his hands, arms, shoulders, neck, back and knees becoming symptomatically troublesome for him over the course of his remaining working life.
This would most likely have had an adverse impact on the plaintiff's future capacity to continue to work in occupations requiring manual dexterity, but also occupations requiring agility and strength. Those circumstances involve a series of imponderable factors that require a discounting approach when assessing the plaintiff's claim for future loss of earning capacity, and his claim for past loss of earnings for that matter, given the time that has passed since the accident.
Those imponderables include questions such as if and when those factors would start to have an adverse impact on the plaintiff's ability to continue working, and to what extent that adverse impact might be, and what residual earning capacity might nevertheless remain for the plaintiff to exercise, with what monetary result. I therefore consider that the discount should be approached along the lines discussed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, at pp 642 - 643.
Those matters lead me to conclude that the plaintiff's claim for past and future loss of earning capacity should not be assessed at the rate of $950 per week net, but instead at a substantially discounted rate in the form of separate buffer amounts after taking into account a range of identifiable and unidentifiable imponderable factors: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].

[68]

Past economic loss

The plaintiff's claim for past economic loss must be assessed by having regard to several elements. First, the plaintiff's historical earnings, secondly, the plaintiff's evidence and that of Mr Sahade, as to the plaintiff's probable earnings but for his injuries, and thirdly, the likelihood of the plaintiff having the capacity to derive earnings of the order suggested by Mr Sahade in light of his pre-existing medical issues and the natural probable consequences of those issues as they impacted on his earning capacity.
The defence submitted that the plaintiff had exaggerated his income at $950 per week net and pointed to the amount of $700 per week as was earlier disclosed in his personal injury claim form. The plaintiff has certainly relied upon an inflated figure for his weekly income. He explained that this was based on the contract that was about to take effect and he had forgotten about the earlier lesser amount. In view of the passage of time and the scope for memory to fade, I am not prepared to accept the defence submission that the plaintiff's explanation, in that regard beggars belief.
The plaintiff claims the rounded sum of $519,000 for past economic loss. This comprises a calculation of $950 per week net over 492 weeks ($467,400) less an allowance for employer funded superannuation at 11 per cent ($51,414) on that calculated amount. That figure is in my view overstated.
In my assessment, based on the analysis identified at paragraphs [229] to [230] and [242] to [243] above, it was unlikely that the plaintiff would have been able to fulfil the physical requirements of the work required of him by M&A Pro Pressure Australia. This is because, as at the time of the subject accident, he had not yet recovered from his wrist surgery that was carried out in July 2011. The medical evidence relating to that period suggests that it would have been some time before he could have assumed full and unrestricted duties in that work, if at all.
The likely timing of the plaintiff being able to resume any work duties has not been established on the evidence adduced. This calls into question the rate at which damages for past economic loss should be assessed and the period of the assessment.
There is reasonable room for doubt as to whether the plaintiff would have been able to resume full duties and continue to sustain full duties up until the time of the hearing because of the effects of his increasing age and the prospect of an incomplete recovery for reasons unrelated to the subject accident.
The unchallenged medical evidence of Dr Dias, as identified at sub-paragraph (24) of paragraph [211] above, shows that there was considerable scope for an incomplete recovery from the unrelated problems the plaintiff had to deal with and which would likely serve to impede him from exercising a full earning capacity. In my view there is a need to apply several discounting factors to the assessment of the plaintiff's claim for past loss of earnings to reflect the evidence.
First, the plaintiff may not have achieved full fitness in order to gain the benefit of his proposed contracted earnings of $950 per week. Secondly, the period for commencement of earnings at the level of $950 per week rate may not have coincided with the time of the accident, it may have commenced at a later date as a result of a more prolonged recovery period in which time Mr Sahade may have needed to look elsewhere to obtain the maintenance services he required for his businesses. If that were the case, then the plaintiff's rate for assessment of economic loss would be more like $700 per week net as he had initially disclosed, if not a lesser rate for lighter work.
Those factors are not capable of precise estimation in terms of monetary impact. In those circumstances I consider the appropriate method to be adopted is along the lines of discount as explained in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, at pp 642 - 643.
Adopting that approach, on the balance of probabilities, I consider that the prospect of the plaintiff being able to be in a position, in 2011, of gaining and sustaining the benefit of the contract he now relies upon as a yardstick for assessment would be much less than 50 per cent, more like 30 per cent.
Without attempting to identify precisely the net weekly income on those amounts, it is readily apparent that the plaintiff's earnings at the time of his injury were nothing like $950 per week net plus employer funded superannuation benefits. A substantial discount must be applied to that figure.
In those circumstances, having regard to the impact of past imponderables of the kind identified at paragraph [282] above, and applying the required layers of discounts to the plaintiff's submitted calculations of $519,000, I consider the appropriate manner in which to compensate him for his past loss of earning capacity, including a component for superannuation, is to award him the rounded buffer amount of $200,000.

[69]

Future economic loss

The plaintiff claims the rounded sum of $796,000 for future loss of earning capacity, this being the projection of a weekly loss of $1650 per week over 13 years remaining working life (x 502.3) less 15 per cent to allow for the impact of possible adverse vicissitudes ($704,475), plus 13 per cent ($91,581) for employer funded superannuation.
In my view, the effects of the motorcycle accident have had an adverse effect on the plaintiff's ability to earn an income and this is likely to cause him financial loss. This justifies an award for future loss of earning capacity: Paff v Speed (1961) 105 CLR 549, at p 566; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.
The defence submits that there should be no allowance for future economic loss or loss of earning capacity based on Dr Lim's assessment. I do not accept that submission.
In my view, a more reasonable approach is to apply the continuum of the findings for past economic loss but to also apply a further discount for an additional layer of imponderables ranging from the plaintiff's other underlying health issues that may well have progressed and which most probably would have had a further adverse impact on his future ability to exercise an earning capacity, including over a reduced period, and not to the age of 67 years as submitted.
Before undertaking that exercise it is necessary to point out that the submissions made on behalf of the plaintiff are problematic and overstated in several respects.
First, the projected sum of $1650 per week is not the net weekly sum but the gross weekly sum, as was identified in the evidence of Mr Sahade: T163.26 - T163.35. On the tax tables published in the Furzer Crestani Assessment Handbook, 2021, the net weekly equivalent of $1650 per week gross is approximately $1284 per week net. When the plaintiff's submitted calculation is adjusted to correct that error, the corrected elements are respectively identified as being $548,274 and $71,275, totalling $619,477, or $620,000, in round figures. However, that is not the appropriate measure in this case.
In my assessment, it is most unlikely that, by the time of the hearing, the plaintiff would have been doing heavy work of the kind he was doing pre-accident. Whilst it is possible that he may have retained some kind of a residual earning capacity for light work of a sedentary nature if he succeeded in being vocationally re-trained and if such work was available, the likely commencement of that residual capacity remains unclear taking into account the plaintiff's pre-accident wrist surgery.
Those imponderable factors indicate that an award of a discounted buffer is the most appropriate means by which to compensate the plaintiff for his future loss of earning capacity. In my view, the chance of those prospects coming to pass is about one-third: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, at pp 642 - 643.
Accordingly, and commensurately with that view, the plaintiff's damages for future loss of earning capacity, including a component for superannuation, are assessed in the buffer amount of $150,000.

Armin Damirdjian v Nominal Defendant & Zaya

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (76 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (37)

Cited By (3)