Cooper v Nominal Defendant

Introduction

1. The plaintiff, Buck Anthony Cooper, suffered "complex and life threatening injuries" when the motorcycle he was riding collided with a motorcycle being ridden by Timothy Robert Lamont ("Lamont"). The collision occurred at approximately 5.15am on Wednesday 16 October 2013 on the Lake Conjola Entrance Road ("LCER") in the village of Lake Conjola, between the intersections of that road with Milham Street and Norman Street. Neither of the two motorcycles was registered to be driven on a "road" as defined in the Motor Accidents Compensation Act 1999 ("MACA") s 3 and the Road Transport Act 2013 s 4(1). Each of the motorcycles has been described as a "motocross type of motorbike" and as a "trail bike". Seeking to recover damages for his personal injuries, the plaintiff brings an action in negligence against the Nominal Defendant pursuant to MACA s 33.
2. The parties have agreed upon a large number of issues and facts in issue. In accordance with the Court's Standard Directions counsel presented Schedules of Issues (that for the plaintiff is MFI 7, that for the defendant is MFI 9). I trust I shall be forgiven for reducing the issues to those which were ultimately argued in addresses: 1. did Lamont owe the plaintiff a duty of care? If he did, the defendant admits that that duty of care was breached, thus admitting negligence; 2. a defence under the Civil Liability Act 2002; 3. what was the extent of the plaintiff's contributory negligence? The plaintiff, through his counsel, admits that he was guilty of contributory negligence and submits that he should be found to be 25% responsible for this collision; the defendant submits that the plaintiff's responsibility for the collision is much higher and submits that it should be 100% pursuant to the Civil Liability Act 2002, s 5S, or, alternatively, 80% (defendant's written submissions, MFI 15, [45]); 4. quantum; and 5. the plaintiff's credibility, which, although not formally an issue or a fact in issue, is a fact relevant to all the facts in issue, and was the subject of a major challenge by the defendant. The circumstances prior to and at the time of the collision are unusual. The plaintiff and Lamont had been in each other's company for at least 18 hours prior to the collision. What occurred in that period is the subject of controversy between the parties. Involved is "the dreaded demon drink". To understand what occurred is best understood by considering the plaintiff's background, which is relevant to each of the issues I have identified.

The plaintiff's background

1. The plaintiff was born on 8 January 1988. He believes that he was born in Sydney, but his earliest memory was of growing up at Culburra Beach, in the Shoalhaven. His father was Scott Cooper and his mother is Jane, but that relationship ended shortly after the plaintiff's birth. The only contact, of which the plaintiff is aware, with his father is one telephone call. The plaintiff's mother then married Mr Ben Dowling, and his mother is known as Ms Jane Dowling. In effect, Ben Dowling has been the plaintiff's father although the plaintiff has always been aware that he is his step-father. Jane Dowling bore Ben Dowling a daughter, April, the plaintiff's half-sister. April is about 6 years younger than the plaintiff. Ben and Jane separated when the plaintiff was 14 or 15 years old (T109.46). Jane Dowling settled in Lake Conjola after their separation and Ben Dowling in Milton, although the evidence suggests the plaintiff had lived in Milton with the Dowlings since age 11 years (T84.15). According to a medical history given on 9 October 2012, the plaintiff's "biological father reportedly has a heroin problem and a severe mental illness." The plaintiff's mother was present at that interview and that history may have been given by her. If it were given by the plaintiff one would expect him to have that information from his mother any way. A heroin addiction could cause a psychiatric illness. This piece of information is, therefore, a dubious source on which to base a "family history of psychiatric illness."
2. Dr Pauline Langeluddecke interviewed the plaintiff on 19 October 2015. Part of her history is that the plaintiff was "not required to repeat any grades at school." That history is consistent with the other evidence. Assuming that the plaintiff commenced his schooling at age 5 years (the norm in this State), the following chart can be constructed: Year Age Grade 1993 5 Kindergarten 1994 6 Year 1 1995 7 Year 2 1996 8 Year 3 1997 9 Year 4 1998 10 Year 5 1999 11 Year 6 2000 12 Year 7 2001 13 Year 8 2002 14 Year 9 2003 15 Year 10

1. The plaintiff's first "difficulty" was apparent at age 11 years. At the psychiatric interview in 9 October 2012 (with Dr Michael Hong, reports exhibit O) Dr Hong recorded this history: "Mr Cooper's mother informed that Mr Cooper has had conduct problems from a young age, even though the home environment was stable, and there were no particular reasons for this. His behavioural and mood problems probably started at age eleven years, before he commenced using substances. He is described as someone who is difficult to connect with, and he finds small changes difficult to adjust to, and he will become fixated. His mother described that he would become so fixated on watching television and would become angry when he was not allowed to, that the family ended up giving away television for five years."
2. The evidence does not disclose where the plaintiff undertook his primary education. He commenced his secondary education at Shoalhaven Anglican College at Milton. He left that College at the end of the first term of Year 9 (T82.12). I asked the plaintiff why he left that College and he answered (T83.07): "I actually can't remember, your Honour, I just - I was becoming the age of being rebellious and stupid, basically." The plaintiff then went to Ulladulla High School. A number of other significant events occurred in 2002. The plaintiff started to use cannabis and also alcohol. He also formed a relationship with Jade Pritchard, which has persisted to this day. They married after the motorcycle collision on 29 November 2014 (T163.22). Jade's family was the source of free cannabis. The plaintiff also displayed other behavioural difficulties. On 24 November 2002 the plaintiff assaulted his parents, leading to his appearing before the Children's Court at Milton. The plaintiff was placed on a bond to be of good behaviour for 12 months and to be under the supervision of Juvenile Justice. A few weeks after assaulting his parents, the plaintiff stole a VCR from a school, which led to the Police giving him a caution.
3. The plaintiff commenced Year 10 in 2003 at Ulladulla High School but left "just after the commencement" (T82.35). The reasons given by the plaintiff prior to giving evidence and in chief as to why he left Ulladulla High School lack credibility, but this is not the place to consider that issue. The true reasons emerged in cross-examination. The plaintiff, with his free source of cannabis, was known to his "mates" as a source of supply. He did supply cannabis to his "mates" who included some of his "school friends". This became known to the school authorities who asked the plaintiff "to leave and not come back" (T190.32). The plaintiff knew after leaving Ulladulla High School that he was "not acceptable at any other high school" (T193.36) and the only reason he knew for his being unwelcome at other schools was his "drug dealing" (T194.01). On 17 April 2003 the plaintiff attended upon Dr Timothy Devlin at the Mollymook Medical Centre. Under the heading "Diagnosis" the clinical notes (exhibit M) state this: "Behaviour problem. - exclude petit mal/SA/ADHD/depression" There is then a heading "Actions" but the exhibit is truncated and there is no page beyond that numbered 28. I do know that thereafter there was a blood examination performed and a CT scan of the brain. The plaintiff returned to see Dr Devlin on 6 May 2003. The notes are these: "Diagnosis Behaviour problem Dope abuse EEG changes Management Counselling re options - with Step father > trial Tegretol Dope reduction Actions Prescriptions printed: Tegretol tablet 100mg i nocte for 2/7 then BD Document saved - EEG" Tegretol is an anti-convulsive drug. In a report of 25 June 2003 Dr Devlin referred to the EEG changes as showing "Dysfunctional Frontal Encephalopathy", which Dr Langeluddecke described as temporal lobe pathology which might be related to a high cannabis (THC) intake. Thereafter the plaintiff fairly regularly attended upon Dr Devlin, who remains his treating general practitioner. Most consultation notes commence with the diagnosis of "behaviour problem" and often treatment is described thus: "Counselling +++ - long discussion re nature of illness and its course. Specific attention directed to: (a) reassurance (b) support (c) insight." The prescription of Tegretol continued for years.

The plaintiff's experience riding motorcycles

1. This subject was canvassed in both evidence-in-chief and in cross-examination. The plaintiff has never held a motorcycle rider's licence. He has never owned an on-road motorcycle. He had been riding off-road motorcycles since age 8 years. Until he purchased his off-road motorcycle he rode machines provided to him by friends. In 2007, when he was 19 years old he purchased his first off-road motorcycle. This was the machine he was riding at the time of the collision. The plaintiff's motorcycle was black. In the report of the expert, Mr Simon David Parker, it is referred to merely as "the black bike". In the pleadings, par 1, it is described as "a black 2007 Thumpstar M50 140 Motorbike." That pleading is admitted. In his opening, Mr Stone SC told me that "Thumpstar" was an American brand, but the plaintiff's machine might have been an Asian copy. The plaintiff gave this evidence (T139): "Q. The off road motorcycle involved in the accident has been referred to as a Thumpstar...? A. Yes Q. Are you aware of what Thumpstar is or who they are? A. I believe that's a different brand. The brand of the bike in the accident, my bike, is M50, Chinese thing but, yeah - so it's not actually a Thumpstar." The plaintiff had been riding this motorcycle since 2007. This was a "recreational activity" (T139.01). The plaintiff rode the machine "sometimes weekly but generally monthly" (T140.03). As to his capacity to ride this motorcycle, the plaintiff gave this evidence-in-chief: "Q. In terms of your capacity to steer and control the motorbike, how would you categorise your degree of experience in controlling it? A. Much more than capable.
2. It was in the defendant's interests to establish the plaintiff's expertise as a motorcycle rider. The plaintiff was willing to oblige the defendant in this regard. Consider this evidence, commencing at T186.39: "Q. Mr Cooper, would it be accurate to say that as at the date of your accident, you were a very experienced motorcycle rider? A. Yes, it would. Q. And would it be accurate to say that at that date you were a very skilled motorcycle rider? A. Yes, it would. Q. Would it be accurate to say that at that date, you were very competent in riding motorcycles in all sorts of road conditions? A. Yes, it would. Q. Did those road conditions include riding on bitumen? A. Yes. Q. Riding on gravel roads? A. Yes. Q. And riding on off road? A. Yes." and recommencing at T188.10: "Q. But you understood how a motorbike worked, in terms of turning, didn't you? A. Yes. Q. You understood that in order to swerve or turn a motorbike, you transferred your weight? A. Yes. Q. And you understood that if you transferred your weight quickly, the bike would respond quickly? A. Yes. Q. That was something that you knew at the time of this accident? A. Yes." In short, there is no reason to doubt the plaintiff's competence as a motorcycle rider, if he were sober.

Mr Timothy Lamont

1. Lamont was born on 14 January 1993. That date is not given in the oral evidence but can be found at T3.09 where I was given the date in order to make an order under s 77 of the Crimes (Administration of Sentences) Act 1999 as Lamont was, during the hearing, an inmate of the South Coast Correctional Centre at Nowra. He was called by the defendant and gave evidence by videolink on Thursday 2 June 2016. Unfortunately, Mr Stitt QC (who with Mr B. Wilson appeared for the defendant) did not adduce his age or date of birth. If I be allowed to rely on his date of birth, he was aged 20 years at the time of the collision. If I be not so allowed, I merely point out that he appeared to me to be a number of years younger than the plaintiff. In any event, the parties admitted by consent hearsay evidence that on the day of the collision, Lamont was 20 years old: see [76] below. Lamont's life partner is Ms Cassie Maria Bates. At the time of the collision they had one daughter, Chloe Lamont, who was aged 19 months.
2. At the time of the collision he was the holder of a motorcycle rider's licence (T318.50). He had held that licence for 3 or 4 years (T319.07). He had been riding motorcycles since age 13 to 14 years. He had ridden both on road and off road. He went on to say this (T316.03): "Q. Would you regard yourself as an experienced motorbike rider at the time of the accident? A. Yeah, you could say that. Q. Were you able to control a motorcycle under riding conditions? A. Yeah. Q. Were you a skilled motorcycle rider? A. What do you class as skilled? Q. Well, somebody who is competent and capable of riding safely? A. Yeah, I could - yeah, I'd say so. HIS HONOUR Q. Down here on the south coast, Mr Lamont, I take it there's lots of riding through the forests and the bush, is there? A. Yeah, yep. Q. Often you're met, when riding through the forest or the bush, hazards that you don't meet on a normal road? A. Yep. Q. You'd learnt to cope with those hazards? A. Yeah, yep. Q. So you probably had - would you agree that you may have been more experienced than a motorcycle rider who only rides on roads? A. Yeah, yeah, you could say that." Again, in short, there is no reason to doubt Lamont's competence as a motorcycle rider, if he were sober. However, it is common ground in these proceedings that he was not sober at the time of the collision the subject of these proceedings.
3. The motorcycle which Lamont was riding at the time of the collision was yellow. In Mr Parker's report it is described as "the yellow bike". In the pleadings, par 4, it is described as "an unregistered 1998 Suzuki RM80 motorbike." That pleading is admitted. In his opening, Mr Stone SC merely described it as a Suzuki. The evidence describes this machine as Lamont's (T311.27). There is no suggestion that Lamont was unfamiliar with this machine or this type of machine.

Tuesday, 15 October 2013

1. Both the plaintiff and Lamont have very vague recollections of this day and the subsequent morning. For what these two men were doing I am dependant on these vague recollections and on the evidence of Lamont's partner, Ms Bates. I feel confident in relying on Ms Bates' testimony. There is no real reason to doubt it. Mr Stone SC suggested that her estimates of times when things occurred may have been inaccurate or merely reconstructions, but when those estimates can be checked they are found to be valid, as I shall endeavour to show.
2. As stated in [39] this day was the last day of either an 11 week (T111.33) or a 10 week (T261.24) domestic violence course at the Probation and Parole premises in Nowra. The commencing and finishing times of the final session are a matter of conjecture, although it appears that morning tea was provided (T263.20). Lamont also attended this course. They had not been known to each other before. At first the plaintiff did not talk with Lamont (T262.15) as there were "quite a few of us in the group" but they became friendly towards the end of the course. To save money, the plaintiff engaged in "car pooling" (or perhaps ride sharing) with another man attending the course, Michael from Ulladulla. The plaintiff drove his vehicle from Lake Conjola village to the intersection of LCER and the Princes Highway where he parked his car and was picked up and then driven to Nowra (T111, T134, T267). On this final session of the course, Lamont told the plaintiff that Lamont and his family were moving house that day. Lamont had lost his driver's licence so someone else would have to drive Ms Bates' car, with a box trailer. The plaintiff volunteered to help and that offer was accepted, but there was a condition: the plaintiff would need a lift back to Lake Conjola after assisting with the move, as the car pooler, Michael, would not be available to provide a lift hours after completion of the course. That lift was offered. There was no discussion of this arrangement prior to 15 October.
3. According to Ms Bates' evidence, she picked up both Lamont and the plaintiff at about 12.30pm. She and Lamont had been living in Sanctuary Point (T327.19) and were moving to West Nowra. However, "everything was in storage" at Bomaderry and the moving on this afternoon was between Bomaderry and West Nowra. That is consistent with the plaintiff's recollection (T135.05) that the move was within Nowra, as greater Nowra is a conurbation of Bomaderry, North Nowra and Bangalee, north of Shoalhaven River, and Nowra, Worrigee, South Nowra and West Nowra, on the southern bank. Ms Bates and Chloe did not participate in moving the family's effects. They stayed at the new house (T328.11). The plaintiff drove Ms Bates' vehicle with Lamont in the passenger seat. According to the plaintiff, they made 3 or 4 trips (T135.22). Ms Bates believed that the moving was completed at 4.30pm ("I think" - T328.32). Ms Bates received some happy news that afternoon, making this a special day for her: she was four weeks pregnant. This evidence was given (T328.37): "Q. After that movement of furniture was completed, what happened at the house with Mr Lamont and Mr Cooper? A. Well, on the way back, like, the last load, I rang Tim and I said, "I'm pregnant," and he's ... he's turned to Buck and he's like, "This is something to celebrate." So then they got a case, I can't remember what case they got but they got a case of beer and then they come back to my house and they were drinking." In chief, the plaintiff told me that he believed it was a local beer and he drank 4 or 5 bottles of it (T136). When asked why he drank the beer (contrary to the stipulation of FaCS) the plaintiff said (T137.12): "Just being stupid. I helped him move and I had a couple of beers and just, I ... have no excuses." In cross-examination, the quantity of "small bottles" became "roughly four beers" (T270.19).

Lamont's alcohol consumption

1. Ms Bates was cross-examined about Lamont's drinking habits. The relevant evidence can be found between T338.27 and T339.11. A fair summary of her confusing evidence is that Lamont was a frequent drinker and when he drank he was a heavy drinker. Lamont usually drank beer and, although he was not a selective drinker, his usual spirit was vodka. Ms Bates admitted that when the men were drinking in Nowra she was not keeping count of what they were consuming. This evidence was then given: "Q. The beers were left behind in Nowra when you came down south, that's right? A. I don't think so, I think they took the beers with them because that's what Tim would do. Q. Well, you don't actually remember that, you're just recalculating that, if you say that's what Tim would do, you don't have any actual recollection, do you? A. No." A little later Ms Bates admitted that she didn't remember anybody drinking beer during the journey to Lake Conjola or at the plaintiff's residence. However, Lamont gave this evidence (T310.34): "Q. Can you remember having anything to drink when you were at Mr Cooper's house? A. Yeah, yeah. Q. What did you have to drink? A. Vodka I think and beer. Q. How was that consumed, were you consuming it together? A. Yeah, yeah. Q. Do you mean by that he was in your presence and you were in his presence? A. Yeah." Again, as I indicated at [49], there is reason to doubt Lamont's recollections after the moving was complete. However, if the memory of consuming beer at the plaintiff's residence is an "implanted" one, the only person who could implant such a memory was Ms Bates (T320.06), who could have forgotten that detail herself. Either way, it seems likely to me that Lamont did consume some beer at the plaintiff's residence and, therefore, it is quite possible that the plaintiff did so too.
2. After the collision, a blood sample was taken from Lamont at 8.30am. The following are facts admitted by a Notice to Admit Facts dated 11 May 2016 and a response dated 17 May 2016 (see exhibit F): 1. the blood sample taken from Lamont was allocated sample number, 707682, 2. upon testing sample number 707682, it was determined to contain not less than 0.107 grams of alcohol in 100 millilitres of blood, and 3. a blood testing certificate was issued by an analyst with NSW Health Pathology (Brett Fletcher) certifying that blood sample 707682 taken from Lamont was analysed and found to contain 0.107g/100ml. A forensic pharmacologist, Dr Judith Perl, prepared a certificate under the Evidence Act 1995, s 177 (exhibit 24) in which she calculated that the most likely blood alcohol concentration (BAC) of Lamont at the time of the collision (assumed to be "about 5.15am to 5.30am") was 0.156g/100ml. The relevant part of Dr Perl's certificate is this: "There was no specific information provided in relation to when the Accused commenced and ceased drinking. Based on the blood result at 8.30am and on the assumption that he had been "up all night drinking", assuming that he did not commence drinking before 10pm and he continued drinking until just prior to the collision, then at the time of the collision his BAC would have been within a range 0.114 g/100ml (based on the most likely rate of elimination of 0.015g/100ml/hour). However, given that the Accused was young (20 y old), the lower limit calculated is highly unlikely because his elimination rate is likely to have been much higher than the lowest elimination rate used to calculate the lower limit indicated. I have found in my research studies using young male subjects, an elimination rate which is around 0.22g/100ml/hour, whereas I assumed the lower end of the human range (0.01g/100ml/hour) in calculating the lower limits." There is evidence that Lamont was "up all night" (Statement of Mrs Wilma Maxwell, 22 December 2013, exhibit 25, [7]). In the same paragraph, Mrs Maxwell records that Lamont admitted that he was "drunk". It is clear from the evidence that Lamont had commenced drinking at about 4.30pm, a lot earlier than 10pm. However when drinking ceased is completely unclear: all one can find is that it persisted through the late meal. In any event, Dr Perl's methodology is to work backwards from the collected blood sample, applying the elimination rate to ascertain the BAC at a particular time, so that, whatever the pattern of drinking alcohol had been, the reading of 0.156 ought be seen as the reading at some time between 5.15am and 5.30am on 16 October 2013. Dr Perl went on to say this: "4. At a BAC of 0.114g/100ml and above, all people would be under the influence of alcohol to the extent that there would be impairment of driving ability, including impairment of skills such as reaction skills, lane-keeping or tracking ability, perception, judgment and decision-making, visual scanning and peripheral vision. At a BAC of 0.150g/100ml and above driving ability would be 'very substantially' impaired. 5. A young person, such as a 20 year old, would generally be expected to have less years of experience with driving and most likely less years of experience with alcohol than a much older driver and therefore a young person would generally be more likely to experience a greater degree of impairment at any particular BAC. This is seen in the crash data where it has often been noted that young drivers are over-represented in crash data (Staysafe Report 18, 1990) and young drivers aged 16-24 years had an increased risk (compared to middle aged drivers) for risk-tasking behaviours and conditions, specifically alcohol and drug use, speeding, fatigue and inexperience (Zhang et al., 1998). 6. Alcohol produces disinhibition and this in turn can result in risk-taking behaviour. Alcohol also produces effects on mood and a person may be more easily influenced by others in their company and other factors which distract from driving skills. 7. It has been established by research (Borkenstein et al 1964) that crash involvement significantly increases as the blood alcohol concentration increases. However, the relationship is not a linear one. In a more recent study, Compton et al. (2002) reaffirm this relationship between blood alcohol concentration and crash risk. In fact, Compton and his colleagues reported that at a blood alcohol concentration of 0.05g/100ml the risk of a crash is around 1.4 times greater than at zero BAC, at 0.08g/100ml it is around 2.7 times greater, at 0.100g/100ml the risk is around 4.8 times greater and at 0.150g/100ml the risk is around 22.1 times greater than at zero BAC. Specifically, at a BAC of 0.114g/100ml the risk is around 7 times greater than at zero BAC. 8. While there is impairment of driving ability at a BAC of 0.114g/100ml and above, the symptoms of intoxication displayed by a person are dependent on their experience with alcohol. Thus, a person who drinks heavily, regularly, or binge drinks regularly, will develop a significant level of tolerance to some of the effects of alcohol and may not appear as visibly affected as a person who is a social drinker despite there being impairment of skills performance. At a BAC of 0.114g/100ml I would expect a social drinker to display visible signs of intoxication including slurred speech, unsteadiness and increased clumsiness or impaired coordination and there would most likely be a smell of alcohol on the breath and most likely blood shot eyes."

The reliability of Lamont's memory

1. On 7 April 2014, Lamont was interviewed by Sgt Robert Burlin of the NSW Police who appears to have been the officer in charge of investigating this collision. The interview was conducted at Nowra Police Station and was electronically recorded (T318.02), i.e. an ERISP. Mr Lamont admitted in cross-examination that he did his best to tell the truth at this interview. Question 43 of the ERISP was this: "Q. What's the last thing you remember prior to the collision? A. Um, Buck, Buck was helping me move in, move into our new place and um, my missus found out she was pregnant with our second child and that's about it really." Earlier, in chief, when irritated, Lamont had said that "All I know is what I've been told by the police." (T313.31). Hence, as I have earlier stated, one cannot rely on what Lamont had said about anything, after he commenced drinking, unless there are good grounds for doing so.

The failure of the plaintiff to call his wife, Jade

1. I have already discussed the events of Tuesday 15 October 2013 and shall shortly turn to the events of the following day. I am really reliant on the evidence of Ms Bates in this regard. However, there was another, sober potential witness who could have been called to give evidence as to what occurred after 10.30pm on the Tuesday and what occurred prior to the collision: Mrs Jade Cooper, née Pritchard. The defendant served her with a subpoena to give evidence and she was in the precincts of the Nowra Court House during the hearing (T419). One would expect her to be called by the plaintiff, rather than the defendant. The inference must be drawn that her failure to give evidence would not have advanced the plaintiff's case. I, therefore, must give substantial weight to Ms Bates' evidence, for events after 10.30pm on the Tuesday as, if she said anything that was incorrect, one would expect Jade to have been called to contradict Ms Bates' evidence.

Wednesday, 16 October 2013, the early hours

1. Ms Bates gave evidence that after going to the shed for a while, Lamont and the plaintiff went fishing. After that, Ms Bates went to bed at about 1.00am or 1.30am. One recollection that the plaintiff has is of finding Jade asleep on the couch and that he "picked her up like a baby" and of placing her on the bed (T142). The plaintiff had no idea when this occurred. Had Jade been staying up for the plaintiff to return? Did the plaintiff do this when he returned from fishing? Both are possible, but conjectural. Ms Bates' next recollection was being awoken by Lamont. This could have occurred at 2.30am (T335.02). Ms Bates said this (T332.12): "Tim came and woke me up cause there's a big kangaroo and he wanted me to see it. So I went out the front and they were trying to chase it on foot and I was just like, "You are idiots," so I went back to bed." She then confirmed that it was Lamont and the plaintiff who were chasing the kangaroo. When asked to describe their demeanour she said they were "happy". She also described them as "yahooing", but not loud enough to wake the neighbours. When she went back to bed, she was not joined by Lamont (T335.12).
2. When asked what was the next thing that occurred Ms Bates said this: "I heard them take off on their bikes and then that's when I went to sleep fully" The evidence then continued: "Q. Just stopping there, what did you actually hear when you say they took off on their bikes, what did you hear? A. I heard them start it and then ride off to the road, like up the road. Q. Then you went back to sleep? A. Then I passed out, yeah. Q. Approximately when was that, would you know? A. No, I don't know. Q. After you heard the bikes and heard them take off on your bikes, what was the next thing that happened? A. The next thing that happened was Jade heard a helicopter and was like running around the house going no, no, no, no, like crying and everything and I was like, "What's wrong? What's wrong?" Then I think she rang - no Buck's mum rang her and said, "Have you seen Buck or something?" and then that's' when I got my daughter and like went out the front and there was the fire brigade blocking off the road and stuff. Q. You I take it didn't hear any noise of a collision or anything of that kind? A. No. Q. But you heard the helicopter, did you? A. Yes, in the morning. HIS HONOUR Q. What woke you up, was it the noise of the helicopter or was it Jade? A. It was Jade. Q. Jade being what, somewhat hysterical? A. Yep." Ms Bates was awakened by a noise which, obviously with the benefit of hindsight, was generated by the plaintiff's and Lamont's starting up their motorcycles and riding away from the plaintiff's residence. The driving in question is alleged in par 1 of the statement of claim to have occurred "at about 5.15am" and that pleading has been admitted. The distance between plaintiff's residence and the collision site is very small. The noise identified by Ms Bates would have been within a few minutes (at most) of the collision. She then fell into a deep sleep from which she was awakened by Jade's distress initiated by hearing the noise of a helicopter. The ambulance helicopter left its base at 6am and arrived "at the patient" (the plaintiff) at 6.40am. I do not know where the helicopter landed or how long it took the air ambulance officers to get to the plaintiff, and the helicopter could have been hovering for some time over Lake Conjola village looking for a landing area. Ms Bates could have been awakened around 6.30am, but that was long after the collision.

The collision scene

1. The collision site is described briefly in [1] above. The relevant section of LCER runs east to west, from the actual entrance of the Lake to the sea to the Princes Highway. The Milham Street crossroad is at the eastern end of this section of LCER and Norman Street is at the western end. The plaintiff's then residence was 12 Milham Street which is on the north east corner of the intersection of that street and LCER. The even numbered blocks of land are on the southern side of LCER. That on the south west side of the intersection with Milham Street (i.e. diagonally opposite the plaintiff's residence is No. 120. The last block on the southern side of this section of LCER is No. 162. The corresponding numbers on the northern side of LCER are No.119 and No. 165. On the southern side of the section between the driveways to No. 148 and No. 150 is a power pole and an electric street light. About 6 metres to the east of this light pole there is a slight bend in the road to the south, i.e. for a motorist travelling east, a bend to the right and for a motorist travelling west, a bend to the left. The gradient of the road is downhill, from west to east, a gentle gradient until just before Milham Street when it increases markedly. The gentle gradient is shown on the survey (exhibit D) made by the police expert, Mr Parker. The steeper gradient is on a piece of LCER not shown on the survey. Most of this section of LCER is kerbed and guttered. It has a bitumen sealing typical of most suburban roads. All relevant parts of this section of LCER have a true central camber. That camber is described visually in 8 cross sections of the road contained in the survey. There is no suggestion that the collision occurred because of some defect in the road's design or construction. The centre line of the road was marked. The markings have subsequently been changed. Those existing at the time of the collision can be seen in the photographs, exhibit A, numbered 01 to 14 for a motorist travelling east, and numbered 15 to 28 for a motorist travelling west. The bend in the road and the adjacent power pole with street light are clearly seen in these photographs, numbers 08, 09, 19, 20 and 21.
2. As I have already stated, the parties agree that the collision occurred during riding "at about 5.15am." During the opening of Mr Stone SC, who appeared with Ms S Warren for the plaintiff, Mr Stitt QC volunteered this information from GeoScience Australia (T37.50 to T38.10): (i) at 5.15am the sun was 12o below an ideal horizon; (ii) nautical twilight commenced at 5.17am; (iii) civil twilight commenced at 5.48am; and (iv) sunrise was at 6.14am. Mr Stone advised me that he was happy to agree with the facts read out from GeoScience Australia (T38.21). There is no evidence of there being any lunar or other celestial light. I accept that it was "dark", that the only lighting was that provided by street lighting. A view was taken on Wednesday 1 June 2016 at 6.45pm. I made some notes which were provided to counsel and were tendered without objection by the plaintiff: ex RR. When the view was conducted it was "dark": the sun had long set and twilight had ended. There was no lunar or celestial light. There was very light rain (drizzle) throughout the view, indicating to me a cloud cover obscuring any natural light. No lighting from any house along the relevant section of LCER illuminated the roadway. In the notes made at the view: (a) the datum is the power pole with street light identified in [57] above, and (b) "p" means a pace stepped out by my Associate, seeking to approximate 1 metre. The relevant notes are: "1. The intersection of Norman St and Lake Conjola Entrance Way ("Way") is on the crest of a hill. The Way eastward of this intersection is straight until it approaches the datum which is on the inside of a curve to the right (south). There is a good, well-illuminated view from the intersection of Norman St and the Way eastward along the Way to the curve marked by the datum. This section of the Way has a modest angle of descent to the datum. 2. 35p east of the above intersection is a pole and light on the southern side of the Way. On reaching this position the curve of the Way to the right (south) is clear and there is a view of the Way beyond the datum. 3. 98p east of the intersection (just west of the border of Nos 154 and 152) there is a clear view around the right hand curve to the next crest. 4. 140p east of the intersection of Norman St and the Way is the datum. At this point the way levels out and is relatively flat until it reaches the next crest which appears at this point to be at the position of the second pole and light beyond the datum. There is an unobstructed, well-illuminated view to the next crest. 5. The pole and light at the next crest is 116p beyond the datum, i.e. 256p beyond the intersection of Norman Street and the Way. 6. At the next crest there is a short but relatively steep descent to another short flat length before reaching Milham Street. A vehicle in this section of the Way is not visible at the datum until it crosses the crest 116p east of the datum 7. The first section of the Way on the northern side, east of its intersection with Norman Street, has no kerbing or guttering for about 20 metres but is kerbed and guttered from that point eastward. The northern side of the Way is well defined and illuminated for a vehicle travelling east along the Way to the datum. 8. From the crest 116p east of the datum, the whole carriageway is well-illuminated for a vehicle travelling west towards the datum." I ought to explain that the documents generated by Mr Parker refer to LCER as "Lake Conjola Entrance Way" and I tried to described it in that fashion during the hearing, but, on returning to Sydney, after consulting road directories and other documents in this case, it appears that the correct name of the road is the Lake Conjola Entrance Road, hence the abbreviation used in this judgment.

The motorcycles

1. I have already pointed out that the two motorcycles involved in this collision were off-road motorcycles. Neither had any headlight, taillight or turning indicators, no lighting at all. Neither had any reflector. The plaintiff's motorcycle was black in colour, but not without some contrasting colours. Photographs of the plaintiff's machine can be found in exhibit A, numbered 111 and 120 to 139. It had a white "face plate" which I understand is technically called a "number plate" but it was much larger than a motorcycle registration plate. It had two stickers attached to it, but showed mainly a white area. On a length of bar, between the two handle bars, immediately on front of the rider was black padding bearing, in large white letters, the name RENTHAL. On numerous places on the machine was the logo (bright green vertical stripes) and name of MONSTER ENERGY, the first word being white and the second word, smaller, being bright green. There are other contrasting markings and colours on the machine.
2. The plaintiff was wearing a helmet. Photographs of it in exhibit A are numbered 112 to 119. It has contrasting colours of black, gray and white. The evidence does not disclose what the plaintiff was wearing at the time of the collision. However, there are sufficient contrasts of colour on both the plaintiff's motorcycle and his helmet to rebut any suggestion that the plaintiff was in any way "disguised" or made less visible than the plaintiff on his motorcycle ought to have been.
3. Lamont's motorcycle's basic colour was canary yellow. Photographs of this bike are numbered 93 to 107 in exhibit A. The front fender, radiator shroud, petrol tank, seat and rear fender were all yellow. On the left radiator shroud was a decoration in red and blue, best seen in photograph 103. The side guard on each side was white bearing in large black numerals, the number 18. This machine also had a large white number plate bearing, in black, the number 18 (photograph 92).
4. Lamont was not wearing a helmet. He was described by Mrs Wilma Maxwell, who came to his assistance after the collision, as wearing "a grey jacket and blue jeans." Whilst those colours are not bright, Lamont's motorcycle certainly was and could easily have been seen by any motorist keeping a proper lookout, in the dark, given the street lighting on the relevant section of LCER.

The collision

1. Paragraphs 1 to 7 of the statement of claim have been admitted. They are these: "1. At about 5.15am on 16 October 2013, the Plaintiff was the rider of a black 2007 Thumpstar M50 140 motorbike ("the Plaintiff's motorbike"). 2. The Plaintiff was riding in a generally westerly direction along Lake Conjola Entrance Road, Lake Conjola in the State of New South Wales. 3. Lake Conjola Entrance Road was a "road" within the scope of the definition set out in Section 3 of the Motor Accidents Compensation Act 1999 ("the MAC Act"). [The definition within the MAC Act referring to Section 4(1) of the Road Transport Act 2013.] 4. At the same time, Timothy Lamont, was the rider of an unregistered 1998 Suzuki RM80 motorbike "the Suzuki motorbike"). 5. At a point about 150 metres east of Norman Street, Lamont on the Suzuki motorbike has crossed to the incorrect side of the road. 6. Lamont on the Suzuki motorbike has collided with the Plaintiff on the Plaintiff's motorbike. 7. The collision was on the Plaintiff's side of the road." In correspondence exchanged between the solicitors, Slater and Gordon of 19 May 2016 and Holman Webb of 20 May 2016, the parties agreed that: "(a) ... the point of impact between the two motorcycles was about 1.5 metres from the centre line into the westbound lane (the Plaintiff's lane of travel). This is the southern side of the roadway. (b) … it was the left side of each of the two motorbikes that collided."
2. At [56] above, I described the noise that awakened Ms Bates before she fell into a deep sleep. Mr Robert Lonsdale was living at No 123 LCER at the time. As I pointed out at [57] the plaintiff's residence was on the north east corner of the intersection of LCER and Milham Street. On the north west corner of that intersection is No. 119 LCER and immediately to its west, on the northern side of LCER is No. 123. Mr Lonsdale was a postman. He normally left home for work at 5.00am. On this day he was on light duties and was leaving home later. He made a statement to Sgt Burlin on 24 November 2013. With agreed amendments it contains this: "3. I normally leave for work at 5am. This day I left at 5.30am/5.40am because I am on light duties at work. 4. As I was getting out of bed I heard 2 motorbikes starting up. I heard one of the bikes take off. You could hear the remaining rider revving the bike. 5. This lasted for about 30 seconds and this bike then took off. I didn't hear any sounds after that. 6. When I left home about 5:40am I drove up the road and came across the two boys lying on the road. They had blankets on the one furthest up on the right. People were around helping. I spoke to Derek. I told him something. (I asked if he wanted any help, he said the ambos on the way. The boys were that badly smashed up they couldn't move them.) 7. When I spoke to Derek I saw one rider on the left, he had no helmet on and lying on the road. There was nothing I could do so I left for work. Q. How dark was it when you left home? 8. You can see but the sky was dark. I could have driven without my lights. I could just see people standing at the top of the road. Q. What direction did the motor bikes travel? 9. I thought they went up the hill (indicating travelling in a westerly direction.) Q. Is this this same direction you travelled when you left home that morning? 10. Yes. Q. Did both bikes travel in a westerly direction? 11. Yes. Q. What do you know about motor bikes? 12. I am a postie, I have a road bike, a dirt bike. I have been riding bikes for the past 20 years. Q. Did you know either of the riders involved in the collision on the 16/10/13 on Lake Conjola Entrance Road? 13. I only know him to say hello, I don't know him that well. He lives on the far corner a couple of doors down. I know his name as Buck." The reference to "the one furthest up on the right" in par 6 of that statement is a reference to the plaintiff.

Vehicle noise

1. I do not believe it to be controversial to observe that generally motor vehicles powered by internal combustion engines emit noise. The evidence in this case establishes that the two motorcycles involved in the collision emitted noise. Ms Bates was awakened by motorcycle noise (see [56] above), Mr Lonsdale heard the two motorcycles start up and "take off" (see [65] above) and Mr Sandilands and his wife were awakened by the sound of Lamont's machine, heard it drive past their house, No 161, make a U-turn and drive back eastwards (see [66] above). Motorcycle riders are, in general, not as well insulated from vehicle noise as are modern motorists, who sit in air-conditioned cabins. However, there is force in the submission of the plaintiff that the noise of Lamont's motorcycle would have been attenuated to some extent by the helmet that the plaintiff was wearing. The photographs of the plaintiff's helmet clearly show that it would cover the plaintiff's ears. However, Lamont was not wearing a helmet and therefore the noise of the plaintiff's machine ought to have provided to Lamont an audible cue of the approach of the plaintiff's motorcycle.

The immediate aftermath of the collision

1. Unfortunately, I am not able to discuss liability at this time, as the defendant's attack on the plaintiff's credibility includes matters occurring subsequently. I therefore need to consider what has happened subsequently before making any finding about the plaintiff's credibility and turning to the issues on this matter. The immediate aftermath of the collision can be gleaned to a large extent from the evidence of Ms Bates which I quoted at [56], from the statement of Mr Lonsdale quoted at [65], and from the statement of Mr Sandilands quoted in [66]. Mrs Wilma Maxwell was staying at the time at the house of her sister-in-law, No. 148. She provided a statement to Sgt Burlin on 22 December 2013. Her statement contains this: "3. I awoke to a loud noise about 5:15am, went to have a look and my sister in law was already out the front door. It was quite dark still, we could see the bikes on their side. One person in the middle of the road and the other had ended up in the front of our house in the kerb. 4. We realized we would have to make oncoming traffic aware there were bodies on the road. So we each stood in the middle of the road facing in opposite direction to face any traffic. 5. A chap came along in a tradesman's Ute, he moved the bike closer to the gutter and told me something. (He told me to talk to the young man). He then went to the other more hurt person that my sister in law was standing with. 6. My young injured person had his foot propped up on the raised kerb. It was a bloody mess. We chatted, a lady from across the road brought a blanket and put it over him. 7. He said his name was Tim, he said "I'm drunk, the other person is Buck and we have been up all night. We decided to go for a ride. I am moving from Sanctuary point to Conjola. Can you ring my mum." 8. He gave me the phone number to me but I couldn't ring because there was no reception. The lady across the road went back inside to ring from her phone number. 9. He was in a fair bit of pain, he said "If somebody could let my mum know, she can ring my partner, she is expecting another child." 10. At one stage Tim said, "I am 20 years old." 11. The conversation was repetitious, as it was taking such a long time for the ambulance to arrive. He kept asking for assurance, by that he kept saying, am I going to be okay, I can't feel my foot, my leg hurts. 12. I talked to him to keep him conscious, he was in pain but he was quite lucid. 13. Eventually there were a number of ambulances, Police, rural fire brigade and eventually a helicopter. Q. How dark was it when you came outside? 14. It was pretty dark, it was well before sunrise. The street is not very well lit." Later in her statement Mrs Maxwell described Lamont's attire and repeated his admission that he was drunk. Lamont's injured foot was his left foot. She described the noise of the collision which awakened her as "like an empty truck going over a bump, like an impacting noise."

Treatment at SGH

1. The plaintiff was admitted to SGH on 16 October and was discharged on 5 December 2016. His discharge was in fact a transfer to the Shoalhaven hospital at Nowra. The plaintiff underwent surgery on 5 occasions at SGH. The records of that institution would be voluminous. Only selected documents were tendered from those records. Care must be taken when reading them. For example, exhibit 20 is headed "Discharge Referral Baseline" and was put before me as a "Discharge Summary" but the document says on its first page that the plaintiff was "[t]o be discharged 29/10/2013." Although the Air Ambulance record indicates arrival at SGH at 8.20, the first record of the hospital is timed at 08.40. It is an "Emergency Department Nursing Assessment Record" made by RN J M Keady. Nurse Keady's and Dr Olivia Lewis' names and signatures appear on four numbered pages headed "Trauma/Resuscitation, Drug and Intravenous Therapy Record (Emergency Department)" which record careful notes between 08.42 and 11.20. At 08.47 electronically recorded notes commence to be made by RN Lauren Ogle. These typewritten or computer generated documents formally record admission to the hospital at 08.46. These records are found in exhibit 23. At 11.25 a "Ward Pre-Operation Check Form" was completed and "Operative Records" commence at 11.30. The last time recorded in those notes is 21.30. Further recordings were due to be made at 22.00. Surgery was thus completed sometime between 21.30 and 22.00. In short, the plaintiff underwent surgery for at least 10 hours on 16 October.
2. The plaintiff's injuries can be described thus: A. Left leg Fracture of the left proximal femur, comminuted and displaced open fracture of the left tibia and fibula. At 11.26 the orthopaedic registrar noted that the plaintiff's left foot was cold and pulseless and that the lower leg was "hanging by posterior muscles (gastrocnemius)". Prior to surgery on 16 October this observation was made: "Extensive soft tissue disruption mid-shaft tibia - pulseless and pale foot, fibula and common peroneal nerve avulsed". B. Left arm Fracture of the proximal radius and ulna Fracture of the fourth metacarpal Fracture of the base of the proximal phalanx of the fourth finger Dislocation of the proximal interphalangeal joint of the fourth finger Partial amputation of the fifth finger Brachial nerve palsy C. Chest injury Bilateral pneumothoraces Fracture of the 4th left rib, undisplaced D. Pelvic injuries "Open book" pelvic fractures, involving diastasis of the symphysis pubis Posterior dislocation of left sacro iliac joint Avulsion of the rectus abdominis Open perineal degloving injury, including a tearing of the scrotum Anal and rectal injuries associated with this degloving injury Perforation of the bladder E. Other Left C8 and T1 nerve root avulsions (probably contributing to or causing the brachial nerve palsy) Suspected brain injury

Treatment after discharge from SGH

1. The plaintiff was transferred to Shoalhaven Hospital shortly after that procedure. He was discharged from Shoalhaven Hospital on 12 December 2013. The suprapubic catheter was removed on 24 January 2014 enabling the plaintiff to urinate in the normal way. On 31 January 2014, the plaintiff saw Professor Ian Cameron, a consultant physician in rehabilitation medicine for the Lifetime Care and Support Authority ("LCS") established under Motor Accidents (Lifetime Care and Support) Act 2006. Professor Cameron described the plaintiff's "current status" thus: "Mr Cooper is living at Lake Conjola with his partner. He has severe neuropathic pain involving his left hand. He is not yet using a below knee prosthesis. His longer distance mobility is in a wheelchair and he can hop to a limited extent. Equipment has been supplied to assist Mr Cooper to manage at home. Current medications are Lyrica 300 mg twice daily, Targin 40 mg twice daily, Allegron 50 mg at night, Astrix 100 mg at night, atorvastatin 40 mg daily, Somac 40 mg daily and Viagra as required. Mr Cooper notices that he has no sensation or movement in the left arm. He also has a significant sensory deficit over his genital region with impaired sexual function. His colostomy is manageable but he hopes to have this eventually reversed. Mr Cooper is to have an assessment as to the feasibility of nerve grafting to his left brachial plexus. He expects a below knee prosthesis will be provided soon through the Amputee Clinic at Shoalhaven Hospital. Mr Cooper felt that his memory was okay and that he had no major emotional sequelae of his very severe injuries." As far as the left upper limb was concerned, the Professor made these findings: "Mr Cooper has evidence of a complete brachial plexus injury involving the C6, 7, 8 and probably T1 nerve roots. He has some abnormal sensation in the C5 dermatome and T1 dermatome without sensory function in the C6, 7 or 8 dermatomes. There is marked wasting around his shoulder. He can elevate his shoulder but has no other movement in the left upper extremity. The left upper extremity is wasted generally. There is a skin grafted area on the left forearm. It is noted that there had been an amputation of the left little finger through the middle phalanx." The Professor gave this advice to LCS: "With reference to the eligibility criteria for the Lifetime Care and Support Scheme, the relevant injury is the severe left brachial plexus injury causing a flail left arm. Mr Cooper has effectively no function in any of the left upper extremity. It is my opinion that he has an equivalent impairment to an above elbow amputation, or shoulder disarticulation amputation, involving the left upper extremity. Therefore, he meets the amputation criteria for interim eligibility for the Lifetime Care and Support Scheme. I have completed the medical certificate attached to the application form on this basis." The plaintiff has been admitted to the LCS scheme.

Treatment of the left arm problem in 2014

1. Shortly before 4 March 2014, when Dr Stewart wrote a report, he reviewed the plaintiff. He found no demonstrable muscle activity in the plaintiff's deltoid or rotator cuff. There was no muscle activity distally in the arm. Other than a small area of patchy sensation in the C5 distribution, the arm was completely insensate i.e. no feeling in the C6, C7, C8 and T1 dermatomes. Dr Stewart went on to state this: "My normal recommendation for reconstruction for a younger motivated patient such as Buck with a complete plexus palsy would be a staged procedure involving double free muscle transfer with multiple nerve grafts and transfers. In Buck's case, given he has been left faecally incontinent as a result of the perineal injury and as a result of recent anal rectal physiology testing is due to have a gracilis reconstruction of his anal sphincter at some stage in the future, this reconstruction will not be feasible. It is however, still possible to achieve some functional recovery in the hand with a single free muscle transfer combined with multiple nerve grafts and transfers. We have provisionally organised to operate on Buck on 19th March 2014 at North Shore Private Hospital and this is surgery that I would perform along with my colleague, Dr Richard Lawson. The surgery will involve a free muscle transfer from the right leg, a vascularised ulnar nerve transfer and multiple nerve grafts and transfers. This will require a week in hospital and 8 weeks of splinting followed by around 6 months of physiotherapy while we wait for some muscle recovery." The foreshadowed cost of this procedure, given to LCS was this: Dr Stewart's fees $42,947.15, Dr Lawson's fees $42,789.80, An assistant for each surgeon at 20% of the surgeon's fees, Seven nights' stay at North Shore Private Hospital, including one or two nights in the Intensive Care Unit, Anaesthetist's fees. The estimated time for the procedure was between 8 and 10 hours. This was indeed major surgery.
2. This commenced what, on my count, amount to eleven operations on the plaintiff's left arm, which ultimately failed to provide the plaintiff with any improvement. These operative procedures were: 1. 17 April 2014: the principal surgery initially proposed; the principal surgeon was Dr Stewart, the second surgeon was Dr Lawson, only one assistant surgeon Dr Dominique Tremblay and the anaesthetist was Dr Molloy. The operation was formally called a "Reconstruction of the Left Brachial Plexus." 2. 18 April 2014: one of the procedures carried out on the previous day was described as a "free gracilis flap for left elbow and finger function." This involved grafting of the gracilis muscle/tendon from the thigh to the elbow. The procedure on this day was described as "Re-exploration of ischaemic free gracilis flap", it appears that some thrombosis had occurred. 3. 22 April 2014: debridement and skin grafting of the left arm. The donor site was the right thigh. In a letter to Dr Devlin of 29 April, Dr Stewart summed up the surgery thus far in this fashion: "I saw Buck for a follow-up after his surgery. He had a reconstruction of his left brachial plexus with multiple nerve transfers and a free gracilis muscle transfer. He had some problems post-operatively with loss of blood supply to the transferred muscle requiring secondary surgery and revision of the vascular anastomosis. We had to remove the skin paddle and put a skin graft on the transferred muscle. I am happy to report today that the skin graft is healing well and this demonstrates the muscle is still well perfused. Buck's other wounds are all healing nicely and I have changed the dressings today. Buck will need to have his arm immobilised for another month and will need dressings for several weeks for the skin graft. He will be reviewed again by my Colleague, Dr Richard Lawson in a week." However, things did not go well. On 6 May Dr Lawson noted that the "central top part of the transferred muscle looked somewhat unhealthy but with no frank infection." He admitted the plaintiff to RNSH for intravenous antibiotics and observations but the gracilis transfer was found to have failed. 1. 8 May 2014: ) On each of these occasions, the plaintiff 2. 10 May 2014: ) underwent surgery at RNSH for 3. 12 May 2014: ) debridement of the failed muscle transfer. 4. 14 May 2014: at North Shore Private Hospital, a second debridement and application of a Vac (Vacuum Assisted Closure) dressing to the wound in the plaintiff's arm pit (axilla). The first had been carried out on 12 May 2014. 5. 16 May 2014: again at the Private Hospital, another debridement and application of a Vac dressing to the axilla. 6. 18 May 2014: debridement and closure of the left axillary wound. On 27 May Dr Lawson wrote to Dr Devlin: "I saw Buck with David Stewart today. Buck's wounds have largely healed. There was a small area of breakdown in the apex of the axilla but this does not appear infected and we hope to allow this to settle down with serial dressings. We plan to review him next week. We will need to consider whether or not we need to re-explore the plexus to see whether or not the nerve transfers to the biceps are intact or not as it is quite likely they are caught up within the area of debridement." On the same day, the plaintiff saw a colorectal surgeon who recorded this history concerning the plaintiff's left arm: "He attended the rooms with his father and partner. They were understandably quite disappointed with the outcome of his failed left gracilis transfer at [RNSH]. Unfortunately he had had very little improvement in his left arm function and tells me that he anticipated that there is limited expected further improvement." There were continuing problems with the plaintiff's axillary wound. 1. 25 June 2014: at the Private Hospital, Dr Stewart again debrided the axillary wound and transferred a skin flap from the chest to close the wound. Dr Stewart reviewed the plaintiff on 1 July. Although it was acknowledged that there had been little improvement thus far, hope for improvement remained: "I reviewed Buck today, a week after his surgery. He had a closure of a wound on his left axilla. This is healing nicely and I have changed the dressing to a small dressing which he and his partner can change on a daily basis. I will see Buck again in another week to remove the sutures and for a final wound review. Given Buck's axillary wound is now been fully addressed, it is time for us to consider whether in light of the failure of his free muscle transfer, if any other surgery is required for the reconstruction of his left arm. The successful components of his previous reconstruction should hopefully give him some control over his shoulder and some elbow extension however, at present he has no prospect of recovering elbow flexion. In order to give some hope of recovery of control over his elbow, Buck would need to have re-exploration of his muscular cutaneous nerve and either a revision of the transfer from his intercostal nerves to the muscular cutaneous nerve or possibly elevation of another intercostal nerve to provide some donor axons. This would need to be done in another month or so to insure that the wound has completely healed in his axilla. Buck is very keen to go ahead with this and we will seek approval for the procedure to be done at North Shore Private Hospital." 1. 6 August 2014: at the Private Hospital, under Dr Stewart, a "re-exploration of the left axilla, long thoracic to musculocutaneous nerve transfer, scar revision left arm." The findings noted on the operation report are: densely scarred axilla, no continuity of previous intercostal to musculocutaneous nerve transfers, large scar left arm.

Other treatment in 2014

1. The colorectal surgeon the plaintiff saw on 27 May 2014 was Dr Kim-Chi Phan-Thien who practises at, inter alia, SGH. The plaintiff consulted her with a view to ultimately reversing the colostomy. This has now been achieved. On 27 May Dr Phan-Thien provided this advice: "Today we discussed what would be involved should he wish to undertake a graciloplasty to return function to the anal sphincter complex which has been largely disrupted by his accident. He has been compliant with his pelvic floor exercises and can effectively constrict his puborectalis muscles on command. Understandably, Buck is worried about failed muscle transfer. We discussed briefly artificial sphincters and my concern of erosion and infection. Buck also has problems with a large incisional hernia due to injury to the left rectus abdominis and anterior abdominal wall. Finally he is anxious about his sexual dysfunction which he partly attributes to penile length. In terms of the options we could: 1. Trial the graciloplasty. Should this function, we could reverse his stoma and at the same time repair his large incisional hernia. After that we would deal with the lengthening of his penis. 2. The second option involves accepting for the moment at least, that the stoma remains. We could resite this to a more optimal position to reduce leakage and issues with the appliance. The incisional hernia could then be repaired and his penis lengthened. Buck and his family are aware that the stoma is not irreversible from an operative perspective. They appreciate that it is the advisability of that procedure that we are concerned about. Given the infectious complications of his arm surgery he is understandably cautious about undertaking any further muscle transfers. At this stage I will let him and his family consider the options before deciding on a path of treatment. I will keep you updated with respect to his progress."
2. The plaintiff had also commenced to see Dr William Lynch, a urological surgeon about problems with his penis. Because of the extent of the injuries to the plaintiff's pelvis and its contents, the plaintiff had experienced a number of problems with this organ. They included its length, its position and its sensation. This evidence was given (T151.01): "Q. By this stage [discharge from Shoalhaven Hospital], had you become aware that as a consequence of your pelvic injuries, your penis wasn't in the position where you were used to it being? A. Yes. Q. Where was it? A. It was pulled in. My pelvis broke and the ligaments were pulled in roughly two inches or so and it was pointing to an angle and it was just not very pleasant." and at T165.18 he said: "... sometimes I don't get a proper erection and, due to my penis being sucked into my body, it's semi erect and not very long and pointing to the side and it's just not functional for sex." and at T165.34: "Q. Do you have the same degree of sensation in your penis that you had before the accident? A. Not at all. Q. What's changed? A. I severed the nerves to my penis in this accident. I believe it was when my pelvis shattered. So I generally can't feel it very well at all." In a letter dated 14 July 2014, addressed to Dr Phan-Thien, Dr Lynch advised that he had proposed the division of the suspensory ligament (ligamentum suspensarium penis) to allow him easier access to his retracted penis. Dr Lynch advised that the plaintiff was keen to have surgery and proposed that it be done when Dr Phan-Thien carried out her proposed surgery. The combined surgery was not carried out until 13 November 2014.

Treatment since 2014

1. On 17 February 2015, the plaintiff returned to the Prosthetic and Orthotics Clinic of Shoalhaven Hospital, accompanied by a member of the staff of LCS. On this occasion Dr Thapaliya said this: "He requires a new prosthesis which has already been prescribed. He is waiting for this prosthesis to be fitted in the near future. Mr Cooper wishes to have an extra set of prosthesis for recreational use. He wishes to go back to participating in water sports. I learned that Lifetime Care and Support is happy to provide him with this. We have prescribed him recreational prosthesis which will be an exo-skeletal waterproof prosthesis with suspension sleeve and a silicon pin system. I could see numerous superficial ulcers in the left hand. Mr Cooper needs to be careful in regard to protecting that hand from cigarette burn (which he mentioned as the cause) and other traumatic accidents."
2. In April 2015 a further attempt was made to repair the plaintiff's abdominal hernia. There has been a further herniorraphy since and further surgery is proposed (T153.45 to T154.37). It is convenient at this time to comment on the plaintiff's remaining abdominal hernia, which is a different issue to his anal/rectal injuries and the colostomy. Exhibit G is a large number of photographs of the plaintiff and his body parts taken since the collision. A large number of those (13 to 49) appear to have been taken when the plaintiff was a patient at SGH. Those numbered 51 to 48 appear to have been taken when the plaintiff's left arm was being treated in 2014. The plaintiff's solicitor (Mr Stephen Legzdin) took some (62 to 65) on 12 August 2014. Number 63 was an attempt to demonstrate the hernia. Numbers 59 to 61 were taken in or about April 2016 (T155.18) and very clearly demonstrate the hernia as it was at the time of the hearing. From what the plaintiff told me at T154.35 (bowel entering the scrotum) it could be an inguinal hernia but photograph 61 of exhibit G shows it to be much more complex than a simple inguinal hernia. The problem appears to be a lack of adequate tissue to repair the defect.
3. In the middle of 2015, at Hurstville Private Hospital, Dr Pham-Thien carried out the surgery necessary to repair the damage to the plaintiff's anus and rectum, remove the stoma and close the colostomy. The plaintiff now has "pretty much normal control of [his] bowel) ... 99% of the time" (T186.05).

Did the plaintiff suffer a brain injury?

1. The remaining medical evidence is medico-legal. Before considering that I need to discuss the issue I have just raised, the only substantive medical issue in the case. I again point out that the plaintiff was wearing a helmet. There are scrape marks on the helmet (exhibit A, photographs 113 to 119) consistent with the plaintiff's being dragged along the road by his machine, but no evidence to suggest a direct blow to the helmet, such as might indicate the plaintiff's being thrown forcefully onto his head. It appears that the diagnosis of "subarachnoid haemorrhage" contained on the first page of exhibit 20 was based on the first, relevant radiological investigation. This was a CT Brain and Cervical Spine done at 11.09 on 16 October 2013. That of the brain is reported thus: "There is a small amount of intraventricular haemorrhage adjacent to the intervertebral [sic, scil. interventricular] foramen, this presumably represents shear haemorrhage. The intracranial appearances are otherwise within normal limits for a patient of this age, no intracranial sequelae of trauma are demonstrated elsewhere, there are no features suggestive of diffuse cerebral swelling at this stage, no intra or extra-axial collections are evident apart from the tiny amount of haemorrhage adjacent to the intervertebral [sic, scil. interventricular] foramen seen here on the left." This investigation was repeated on the following day, 17 October. This CT is reported thus: "Comparison had been made with the CT performed on 16 October 2013. The previously demonstrated small dense focus at the interventricular foramen is again noted and is unchanged in size and appearance. There is no new acute intracranial haemorrhage or established territorial infarct. There is no midline shift. No extra-axial collections. No calvarial fracture has been demonstrated. Conclusion: Small intraventricular haematoma at the foramen of Munro [sic, scil. Monro] is again noted and is unchanged in appearance. Addendum Dr Glenn: If the structure at the interventricular foramen is unchanged over several days then a colloid cyst should be considered in the differential diagnosis." Dr Glenn, I infer, was a consultant radiologist at SGH. He has a large private practice in the St George area and the Shoalhaven Shire.
2. An MRI scan of the brain and cervical spine was made on 25 October 2013. It is to be noted that it is reported as "suboptimal image resolution" Under the heading "Clinical details" is this: "? Colloid cyst. MVA. Altered sensation in left arm." The relevant part of the report is this: "Corresponding to the CT brain studies of 16 and 17 October 2013, there is a T1 hyperintense, T2/T2 FLAIR isotense rounded focus at the foramen of Monro. This measures approximately 0.5cm. There is no associated enhancement. There is no intracranial diffusion resection, magnetic susceptibility or abnormal enhancement. There is no extra-axial collection. There is no hydrocephalus. The grey and white matter appearances are normal. Midline structures otherwise have remarkable appearances." The comment on the report discusses the spinal damage responsible for the brachial plexus lesion. It then says this: "Incidental colloid cyst finding at the foramen of [Monro]. Normal intracranial appearances otherwise."

Professor Fearnside's assessment

1. Professor Fearnside's assessment of 31 August 2015 is the closest thing available to me of an overview of the plaintiff's current condition. At the commencement of these reasons I described the plaintiff's injuries as "complex and life threatening". Those are the words used by the Professor in 1.3 of his primary report. The Professor examined the plaintiff from the point of view of his speciality. The relevant part of the report is this: "6.3 On examination, he was alert and oriented and able to give a good account of himself. A Mini Mental State Examination was not considered necessary. 6.4 There was no anosmia. Uncorrected visual acuity was N5 bilaterally. To confrontation, visual fields were full. External ocular movements were full and there was no nystagmus. He had a mild left Horner syndrome with pupillary inequality and the slight ptosis, likely the result of his cervical spinal injury. Tuning fork tests of hearing were normal. Speech was normal and examination of the lower cranial nerves was normal. 6.5 The form and structure of the facial skeleton was normal, facial movement symmetrical and facial sensation intact. 6.6 Coordination of the right hand with finger-nose testing and alternate rapid movements of the fingers was normal. Power, tone, reflexes and sensation all were normal in the right arm. 6.7 In the left arm there was a flicker of movement in the external rotators of the shoulder and elevators (levator scapulae and trapezius). Otherwise, there was paralysis (0/5) and hypotonia with marked wasting of the left arm. There was a large area on the volar surface of the upper third of the arm where there had been tissue loss and a split skin graft had been performed. There was [sic] multiple surgical incisions on his left arm and hand. He had no shoulder movement at all. The lowest dermatome where sensation was perceived was C4, across the supraclavicular fossa but here, there was allodynia as a result of the surgery. Reflexes were not tested in the arm and there was complete anaesthesia from C5 through T2. 6.8 On the upper half of the left side of his chest wall there was marked allodynia which extended to the supraclavicular fossa. 6.9 There was a left below knee amputation with a prosthesis fitted. The graft was not taken down. In the right leg, there was normal tone and power. Reflexes were normal as was sensation. 6.10 Cervical spinal movements were full and pain-free. There was no paraspinal muscle guarding or spasm and dysmetria was not present. 6.11 In the lumbar region he indicated a wide area of pain and there was some local tenderness in the back but he had a normal range of motion of the lumbar spine and there was no paraspinal muscle guarding." The first part of his opinion is this: "8.1 As a result of the motorbike accident, Mr Cooper sustained catastrophic injuries which have left him severely and permanently impaired and consequently disabled. The injuries are causally related to the subject accident. Although it is outside my area of expertise, there were substantial mental health issues resulting in contact with the justice system prior to the subject accident. It is probable that the subject accident caused aggravation of the previous mental health problems. In that regard, the opinion of a psychiatrist would be appropriate. 8.2 From a neurosurgical point of view, he requires no operations. He will need to remain under the care of his nominated treating doctors for conservative management. 8.3 His prognosis is as he now presents. He came to assessment one month short of two years following the accident on 16/10/13. It is not likely there will be any improvement in function in his left arm now and the arm is functionless and of no value in either an occupation or activities of daily living." The rest of this part of the report deals with the question of cognitive impairment. As a neurological surgeon, the Professor did not deal with the plaintiff's pelvic issues which clearly require ongoing treatment.

The plaintiff's psyche

1. Professor Fearnside recommended psychiatric assessment. Unfortunately there is none. The closest thing to such an assessment is the opinion expressed by Dr Langeluddecke. The particulars filed on 14 May 2015, page 8, contain this: "Psychological 1. Severe aggravation of pre-existing depression 2. Frustration" The latter is not a disability, but an ordinary human emotion very commonly encountered, sometimes for some people almost daily. Dr Langeluddecke dealt with the plaintiff's psychological state at 1.10 of her report, which I have quoted at [104] above. Given the plaintiff's background and his presentation to me over five days at Nowra I agree with Dr Langeluddecke that the plaintiff has made a remarkably good psychological adjustment to the effects of his injuries. However, I do accept the "ongoing emotional sequelae" identified by her, "mild stress symptoms and occasional low mood."

A return to work?

1. The defendant's challenge to the plaintiff's credit, in so far as it is based on his behaviour after the collision, largely turns around two matters: firstly, whether he has an ability to work and, if so, whether he wishes to use it, and, secondly, a related issue as to how he spends time when not in hospital. I shall now deal with the first of these matters. I shall initially canvass the medical opinions . At [90] above I quoted an opinion of Dr Stewart produced by him in support of the plaintiff's application for a Disability Support Pension. This indicates that Dr Stewart believed the plaintiff was substantially incapacitated. Professor Cameron's assessments deal only with the plaintiff's eligibility for the LCS Scheme, but he clearly believed that the plaintiff had a total loss of function of his left arm, equivalent to its being amputated through the humerus. Dr Langeluddecke expressed this opinion on "employability": "1.11 Employability: Although Mr Cooper's cognitive abilities are well preserved on formal testing, ongoing reliance on opioid drugs for pain management has the potential to impact on his attentional capacity (e.g. vigilance) and processing speed, and in turn his safety in relation to driving a motor vehicle and operating machinery. Furthermore, his ability to utilise his cognitive abilities (e.g. his visuospatial skills) to perform practical tasks such as those required in carpentry or general labouring duties is compromised by the lack of functional use of his left upper limb. Functionally, this means that he may know how to perform particular tasks but is unable to execute them in an effective and efficient manner because they necessitate the use of both hands. On a more general note, the fact that Mr Cooper was never inclined towards academic study or sedentary work and preferred work of a practical and physical nature heightens the significance of Mr Cooper's physical injury (i.e., the loss of the functional use of his left upper limb; diminished mobility secondary to the amputation of his left lower leg) for his employability in the future." Professor Fearnside expressed no direct opinion on this issue, but did comment on a number of documents which were provided to him. One of them was a "Work Options Plan" dated 21 July 2014 (part of exhibit OO). This is a document generated by LCS. It was made by Mr Michael Jones, a psychologist with a Graduate Diploma in Rehabilitation Counselling. Of the proposal contained in it, Professor Fearnside said this: "Mr Cooper was assessed (Mr Michael Jones) and his duties as a carpenter were detailed at section 2.2. I have read and considered these. The assessor thought that Mr Cooper did not have any cognitive issues to be addressed. I tend to disagree with that and am of the view that there may well be some cognitive impairment which requires further investigation. When work options were explored, it was indicated that his goal was to become a self-employed builder managing residential building projects and employing subcontractors to undertake the physical work. Mr Cooper believed he had the functional capacity to be present on site and undertake the required tasks. To do this he needed to complete his Certificate 4 in building and construction. The assessor felt that given his success in previous training and lack of cognitive disability, he should be able to manage the cognitive and functional demands of his level of study. I was not quite so confident that Mr Cooper would be able to manage responsible work as a builder, managing residential building projects. He told me that there was some difficult with his Certificates 1-3 with regard to memory and his present cognitive complains raised the question of further cognitive impairment. However, the assessor did question as to whether this was a realistic option given his physical limitations. It was more appropriate for him to consider sedentary roles within the construction industry such as product sales, product estimation and purchasing. There was a plan of recommended actions to achieve this goal provided."

(a) What would the plaintiff have done, uninjured?

1. It is convenient to deal with this topic at this time. At the time of the collision the plaintiff was unemployed, and had not worked since August 2012, for some 14 months. However, he remained a qualified carpenter. He had his ABN (see [17] above). He had a business name: "Precision Finish Carpentry" (T122.35). He had a contractor's licence as a carpenter and insurance - a photograph of these documents is in exhibit MM, numbered 2. He had his own business card (exhibit KK). He had his own tradesman's "ute" with storage for his tools, and his "ute" advertised his business's name and his mobile telephone number (exhibit MM, photograph 1). He had his own tools and equipment (exhibit MM, photographs 3 to 12). He had his own business shirt (exhibit LL). He was fully equipped to return to work as a contract carpenter, when he overcame his existential problems.
2. Mr Streeter regarded the plaintiff highly. He described him as a "good carpenter", a "great tradesman", possessing a "good work ethic". He believed that the plaintiff had been well trained as an apprentice by Mr David McIver whom Mr Streeter described as a "good tradesman" as well: "I think he taught him all the facets of ... the building industry from concreting, forming up slabs, frames, trusses, fit outs, whatever that's needed to be done, basically do it all and he knew it all." The plaintiff was punctual, never late, never leaving early (T350.38) and never took a day off (T350.01). He never turned up to work unfit to work (T350.42). When asked whether he would "re-employ" or re-engage the plaintiff Mr Streeter replied "absolutely". As stated in [23] above, when Mr Streeter found further work with which he needed assistance, he tried to re-engage the plaintiff, unsuccessfully. In cross-examination, Mr Streeter agreed that the plaintiff was "a very pleasant and amenable person to have on a construction site" and that the plaintiff got on well with Mr Streeter and everybody else on construction sites. He was aware that the plaintiff may have been drinking heavily on weekends, but was unaware of the plaintiff's cannabis use. He was also aware that the plaintiff was having "troubles at home with his partner" but "not in a deep and meaningful way" (T357.098)
3. In his evidence the plaintiff maintained that he intended to return to work. At [39] above I cited the evidence relating to the plaintiff's reasons for not returning to work prior to the collision. Before giving that evidence, the plaintiff told me that he was thinking of returning to work in "early 2014" (T121.44) The plaintiff had told me (T96.05) that when working for Mr Streeter he had this career ambition: "Eventually to become a builder but to subcontract and contract work out and to, when times were tough, to be on the books because there's no stress with the business and stuff like that when you're on the books." I interpret the latter part of that answer to mean that when times were tough he would do the work himself, being on the books of his own company, i.e. he would incorporate his business and employ himself and so insulate himself from risk. Records generated prior to the collision support both that ambition and the plaintiff's intention to return to work: 1. history given to Kedesh Rehabilitation Service cited at [28] above; 2. one of the reasons given by the plaintiff, reiterated by Doctor Devlin, for early release from Kedesh House, cited at [30] above; 3. statements made by the plaintiff at the FaCS meeting on 16 October 2012, cited at [32] above.

(b) The post collision plans

1. After telling me about LCS, the plaintiff gave this evidence: "Q. Did they, at one stage, explore with you, prospects about returning to work? A. Yes. Q. At the time they did were you enthused about the idea of trying to get back to some form of gainful employment? A. I certainly was. Q. Would you like to be back in some form of gainful employment? A. Yes. Q. Was what you discussed with Lifetime Care undertaking a Certificate IV in Building? A. Yes. Q. Did you end up proceeding with doing that? A. No. Q. Did Lifetime Care and I don't rely on this as evidence of anything other than the exchange, your Honour, did Lifetime Care express to you any reservations about your undertaking that training? A. They basically said it wasn't very possible to do. HIS HONOUR Q. What would a Certificate IV enable you to do? A. Be a legal builder, your Honour, so go from carpentry to being a builder. Q. But, I mean, necessarily if you became a builder you would hardly be hands on, would you? A. Yes, of course, your Honour. Q. Has any thought been given to try and qualify you to be something like a clerk of works where you could sit in an office and just work things out? A. I don't - no, I don't believe so, your Honour. STONE Q. Is Paul Norris somebody at the Lifetime Care and Support Authority that you deal with in terms of your ongoing rehabilitation? A. Yes. Q. Is Michael Jones somebody who you know who they are? A. Yes. Q. Do you know what Michael Jones' role is? A. I believe he helps people with work or get work. Q. Was it Paul Norris that you dealt with in terms of pursuing this training course? STITT: It's actually Paula. STONE Q. Sorry, Paula, I take it back. Paula Norris? A. Yes. Q. My apologies, I misread it. Were the discussions about that in August or September 2014? A. Yes. Q. Having raised the prospect of pursuing this course, did you ultimately tell Lifetime Care that you weren't going to pursue it? A. Eventually, yes. Q. During the years that you had in the building industry as an apprentice, did you come across any builders who didn't work on the tools and purely had a supervisory role? A. No." Exhibits OO and PP were then tendered and his evidence continued: "Q. I just want to discuss with you a couple of suggestions that have been put as to possible sedentary roles within the construction industry. One of the suggestions raised has been product sales. During the time that you spent in the building trade, did you go and purchase all of those pieces and items of equipment we saw in the pictures earlier? A. Did I purchase them? Q. Yes. A. Yes. Q. What sort of places would you go to buy those? A. Hardware shops. Q. Did that include trade places or have trade places ceased to exist and Bunnings sells to everyone now? A. Bunnings sells to everyone. I bought a lot of tools from Bunnings. Q. If product sales involved having to demonstrate tools, could you do that? A. No. Q. If product sales involved having to load and unload stock, could you do that? A. No. Q. If product sales involved having to help a customer get something off a shelf, could you do that safely? A. No. Q. If product sales involved helping a customer put something in their car after they'd purchased it, could you do that? A. No. Q. If product sales involved participating in annual stocktake, could you do that? A. No. Q. If product sales involved getting up and down a ladder, could you do that? A. No." The plaintiff went on to tell me that he had no computer skills and that LCS had made no other suggestions to the plaintiff about future employment.

(c) Other work?

1. In cross-examination, I elicited this evidence form the plaintiff: "Q. I know you want to be an active person. A. Yes, your Honour. Q. And to try and work out something to keep you active, you've thought about things and looked at one scheme and then another scheme and then another scheme, is that correct? A. Most definitely, your Honour. Q. And what you want me to believe is that thus far you haven't come up with any scheme that ultimately is practicable. A. Yes, your Honour." Nothing was suggested to the plaintiff on behalf of the defendant, outside of the plaintiff's trade.

How the plaintiff spends his day

1. Towards the end of the evidence-in-chief the plaintiff said this: "Q. In terms of how you now spend your time, you've told us you go to the beach and have other interaction with the children, do you spend time with the dogs? A. Yes. Q. What else do you do? A. Not much to be honest, I sit in my wheelchair and potter around in my garden and stuff. Q. What sort of things will you do in the garden? A. I can prune with one - like, I can secateur pruners, I can prune my trees and I've got trees in tubs. Just general, simple, basic things that don't involve lifting anything heavy, obviously and stuff like that. Q. Did you at one-- HIS HONOUR Q. Do you spend a lot of your time, say, playing on a computer or games or watching television or-- A. Watching television, yes but not a computer. Q. Sorry but no? A. Not a computer, your Honour. I do watch television. STONE Q. Have you ever been much of a computer user? A. No. HIS HONOUR Q. What about things like a Playstation and things like that? Any of those sort of games? A. No, I can't play any of those, your Honour. STONE: They're for the two-handed, your Honour. Q. Is it the case that all of those games consoles-- A. Yeah. Q. --require usually two thumbs? A. Yes, it is. Q. You haven't been introduced to any disability game console for the one thumb? A. No." Mr Stitt QC turned early in cross-examination to this issue: "Q. Yesterday Mr Cooper, his Honour asked you a question about what you did during the day. Do you remember the answer that you gave to him? A. Yes. Q. You said that you did very little, that you sat around and watched TV, and otherwise you didn't participate in any other activities. A. On the average day, that's correct. Q. But the truth is Mr Cooper that you are very active in mechanical repairs of your motor vehicles are you not? A. I am not active at it. I try my best. Q. You in fact spend a considerable amount of your time repairing and building motor vehicles? A. No. I have bought and sold motor vehicles but that's not what I do. Q. Let's just take it a bit at a time. You have from time to time bought and sold motor vehicles? A. Yes that's true. Q. You buy motor vehicles, you do them up and you sell them? A. That's not entirely true. Q. Not entirely true, well let's just take it a bit at a time. You buy vehicles which are capable of being improved mechanically? A. Yes. Q. You improve them mechanically and then sell them? A. I do not improve them mechanically."

Credibility

1. At [76] above, after describing the motorcycle collision, I pointed out that I was not then able to discuss liability as the defendant's attack on the plaintiff's credibility included matters occurring subsequent to the collision. At [108] above I pointed out the challenge to the plaintiff's credibility turned mainly around two matters, firstly whether the plaintiff had an ability to work and, if so, whether he wished to use it, and, secondly, the related issue of how the plaintiff spent his day when not in hospital. I have now canvassed those matters.
2. The nadir of the plaintiff's credibility was his attempt to conceal the reason why he left high school. I discussed this issue at [7] above: "The plaintiff, with his free source of cannabis, was known to his "mates" as a source of supply. He did supply cannabis to his "mates" who included some of his "school friends". This became known to the school authorities who asked the plaintiff "to leave and not come back."" To use pejorative language, the plaintiff was trafficking an illicit substance to minors, to school children. This issue was not mentioned in evidence in chief: cf T82 to T83. The plaintiff said he left the Shoalhaven Anglican College at Milton because "he was becoming the age of being rebellious and stupid, basically" (T83.07) and that when he transferred to Ulladulla High School he "was bullied a fair bit" (T82.21).
3. Mr Stitt QC turned very early in his cross-examination of the plaintiff to this issue: "Q. What you suggested was that you left high school because you were being bullied. A. That's correct. Q. That's what you told his Honour, wasn't it? A. That's correct. Q. That answer was false, wasn't it? A. No. Q. I'd like you think about this carefully, Mr Cooper, that answer was false because you were, in fact, expelled from high school, were you not? A. I don't believe I was formally expelled. Q. Mr Cooper, you were expelled from high school for the reason that you were selling drugs. Isn't that the truth? A. I don't recall that … Q. Mr Cooper, you knew perfectly well when his Honour asked you that question that the reason that you didn't go back to school because you were expelled for selling drugs to the school children. Isn't that the truth? A. No. Q. What part of it is not correct? A. I don't remember being expelled. Q. But you told doctors that you were expelled for selling drugs, did you not? A. I was asked to leave. … Q. Mr Cooper, at the time you were at high school which is the time that I'm asking you questions about and which was the time that his Honour asked you his question, at that time you had free and liberal access to cannabis. A. Yes. Q. And you advertised that fact amongst your friends. You made it known that you were a source of cannabis, did you not? A. Yes." Mr Stitt QC, a highly skilled cross-examiner, used language appropriate to his task, pejorative language, "selling drugs to school children" to describe the activity in which the plaintiff had been engaged. It drew the answer he sought: a denial of selling drugs to school children. However, a different response was elicited when "school children" was replaced with "mates", his peers.

The plaintiff's sobriety at the time of the collision

1. Now having dealt with the issue of the plaintiff's credibility, I can return to a remaining issue on liability: the plaintiff's sobriety/intoxication at the time of the collision. The following are admitted facts in these proceedings (see exhibit F): 1. that following the accident, a blood sample was taken from the plaintiff at St George Hospital (at 11.30am); 2. that the blood sample number was 707820; 3. that upon testing of blood sample 707820, no alcohol was detected. It should be noted that this blood sample was taken more than six hours after the time of the collision. The parties have agreed that, given the effluxion of time and the medical treatment of the plaintiff before the blood sample was taken, the 0% BAC is non-determinative as to whether the plaintiff had been drinking on the evening of 15 October 2013 and the early morning of 16 October 2013 (see T378.20). This agreement reached by the parties on the morning of Friday 3 June 2016 obviates the necessity for me to consider exhibit 23, records of SGH said by the defendant to be relevant to the plaintiff's haemodynamic state between his admission to SGH and the taking of the blood sample at 11.30am. In short, the agreed facts recited above and the BAC of 0% prove nothing.
2. What direct evidence is there of the plaintiff's alcohol ingestion prior to the collision? Firstly, there is the plaintiff's evidence as to drinking 4 or 5 small bottles of beer at West Nowra after helping Lamont with the move to Lamont's new residence in that suburb, as recited in [48] above. After arriving at the plaintiff's residence, the plaintiff was drinking vodka and lemonade or vodka and lemon squash, with Lamont. They were still drinking that beverage during the supper of steak and chips prepared by Jade after she arrived home at about 10.30pm: see [50] above. Between [51] and [52], I discussed Lamont's alcohol consumption. At the end of [51] I made this finding: "it seems likely to me that Lamont did consume some beer at the plaintiff's residence, and, therefore, it is quite possible that the plaintiff did so too." At [52] I observed that "when drinking ceased is completely unclear: all one can find is that it persisted through the late meal."
3. Some inferences can be drawn from other facts. On the night of 15/16 October the plaintiff was Lamont's host. The plaintiff invited Lamont and his family to the plaintiff's house. The plaintiff and Jade prepared a meal for Lamont and Ms Bates. After the meal the two men went to the plaintiff's shed: presumably at the plaintiff's invitation for some activity suggested by the plaintiff. The two men then went fishing. There is no evidence that Lamont took fishing gear from West Nowra to Lake Conjola. The fishing gear is likely to have been the plaintiff's. The plaintiff was the "local" man: he would know when and where to fish. The men may have encountered the kangaroo on their return from fishing. If the plaintiff were tired and wished to go to bed, he could have invited Lamont to do the same. It seems unlikely that Lamont would have gone riding through the streets of Lake Conjola by himself - he would have to have some "local" knowledge, which only the plaintiff had. Not only was the plaintiff Lamont's host, he was also the older of the two. The plaintiff was 25 years old and Lamont was 20 years old. Such seniority would only enhance the plaintiff's position as host. Equally, as he was the host, if Lamont were too tired to continue any activity proposed by the plaintiff, one would not expect the plaintiff's objecting to his going to bed. These considerations lead me to draw a further inference that their states of sobriety may have been similar. That inference might also explain why neither man perceived the other to be so intoxicated that activity ought not to continue.

Playing "Chicken"?

1. Since the evidence on this issue is scant, I can conveniently quote it: "Q. Mr Cooper, do you know the game played with motor vehicles and motorbikes called "chicken"? A. I've heard of chicken, yes. Q. You know what's involved in playing the game of chicken with moving motor vehicles, don't you? A. I don't believe I know anyone that's ever played chicken with motor vehicles. Q. No, that's not the question. You know what's involved if you play chicken with moving motor vehicles, don't you? A. I have an understanding of what, what would happen, yes. Q. Well it's pretty simple. You get two people on a long straight stretch of road, and they drive towards each other, and the first one that turns aside is "chicken". You understand that, don't you? A. I understand that. … Q. Do you know that one of the elements of the game of chicken is to hold your line if you are a participant? You hold your line and don't deviate. A. Yes. Q. You understood that. A. Yes. Q. Did you understand the circumstances of this accident involved you holding your line? A. I had no idea about anything to do with the accident until I went, until I went into Ulladulla Police Station for the questioning." The omitted matter was an objection. The last answer was followed by a further objection and Mr Stitt QC them moved to another topic. Unlike Russian roulette, it takes two drivers or riders to play this "game". Lamont was called by the defence and was not asked any questions about playing the "game". No application was made by the defence to have Lamont declared an unfavourable witness. Given the paucity of evidence about this issue, I am unable to accept that this "game" was being played by the plaintiff and Lamont immediately prior to the collision. Bearing in mind the onus of proof, and what was said about it in Briginshaw v Briginshaw (1938) 60 CLR 336 by Dixon J at 361-362, and the seriousness of this allegation, substantial evidence would need to be adduced by the defendant on this issue - but there is none.

An accidental collision

1. At [67] above I made findings as to how the collision occurred. It appears likely to me that the plaintiff and Lamont set out on a ride together but, for some reason the evidence does not disclose, the plaintiff's start on this ride was delayed. Lamont drove ahead, but when he realised the plaintiff was not with him, he made a U turn on LCER to seek to find the plaintiff. Hence they were riding in opposite directions on LCER when the collision occurred. Why the collision occurred remains a mystery. One can speculate. For example, due to fatigue and intoxication Lamont may have fallen asleep, a "micro sleep", and crossed the centre line of LCER leading to the collision. Another possibility is that Lamont, having "found" the plaintiff on LCER, decided to make a U turn around the plaintiff, but due to his intoxication misjudged the manoeuvre. One thing, however, is perfectly clear: the collision would not have occurred if Lamont had remained on the correct side of the road.

Did Lamont owe the plaintiff a duty of care?

1. The defence submitted that this was a most unusual accident. The Defendant's Outline of Closing Submissions (MFI 15) contains this synopsis: "32. It is submitted that on the facts of this case Mr Lamont owed no duty of care to the Plaintiff. Such a submission is made good by the following factors: (a) Both men had been in each other's company since at least the mid afternoon on Tuesday, 15 October 2013. (b) Both men had been drinking together since at least the late afternoon on 15 October 2013 (c) Both men were significantly intoxicated at the time of the accident. (d) Both men had not had any sleep (or alternatively any substantial sleep) in the period before the accident. (e) Both men voluntarily elected to participate in the activity of motorcycle riding together in conditions where it was dark. (f) Neither of the bikes were fitted with headlights and both were unregistered off road motorcycles. The Plaintiff was unlicensed. (g) Both men set off on the motorcycling endeavour when it was dark (i.e. before nautical sunrise). (h) The enterprise in which both men were engaged was dangerous, unnecessary and recreational. Neither the Plaintiff nor Mr Lamont were using the motorcycles for work purposes, to travel home or to go to the shops by way of example. (i) The Plaintiff was at home before he engaged in the activity and there was no reason why he could not have elected to remain at home and declined to participate in the joint activity. (j) The activity in which the two men had agreed to jointly participate was obviously and inherently dangerous given that it was dark, both men were intoxicated and fatigued, both motorcycles were unregistered and neither motorcycle was fitted with headlights. 33. There can be no doubt that both the Plaintiff and Mr Lamont were acting unlawfully at the time of the accident. The fact that an injury is sustained at a time when a plaintiff is acting unlawfully does not, of itself, prevent a plaintiff from revering damages for negligence."
2. Mr Stitt's oral submissions emphasised a number of these unusual features: 1. the vast majority of motor vehicle collisions occur between vehicles being driven or ridden by persons who are strangers to each other; here, the plaintiff and Lamont had been in each other's company since the morning of Tuesday 15 October 2013: they had been in each other's company for at least 18 hours; 2. motorcycle on motorcycle collisions are rare, as motorcycles are very manoeuvrable vehicles; 3. despite the fact that the plaintiff and Lamont were engaged in a common activity, riding their motorcycles together, the collision occurred when they were riding in opposite directions on the same road; 4. the collision was on the left hand side of each rider/motorcycle, not on the right hand side as one would normally expect; 5. speed was a causative element (but this is a necessary factor in any collision as two stationary objects cannot collide); 6. neither motorcycle had any headlight, tail light, brake light or reflector (but my analysis of the motorcycles and the lighting on LCER does not indicate that lack of visibility was a relevant factor in the collision); 7. there is no evidence of any braking by either motorcycle (e.g. skid marks or the sound of squealing brakes) or of any evasive action by either rider (there could have been an attempt to do so by either or both of the riders but neither remembers the collision and there is no eye-witness); 8. both riders were skilled, experienced riders (but each was impaired by alcohol ingestion); 9. the noise generated by the motorcycles ought to have drawn the attention of each rider to the approach of the other; Mr Lonsdale at No123 LCER heard the two motorcycles start up and take off (see [65] above) and this noise woke Ms Bates up (see [56] above) and Mr Sandilands at No161 LCER was awoken by the noise of Lamont's machine (see [66] above) and see [75] above; 10. the activity in which the plaintiff and Lamont were engaged was "entirely unnecessary"; Mr Stitt QC was prone to use the adjective "recreational" to describe the activity but since that is a term of art in Civil Liability Act 2002, Part 1A, Division 5, it is better not used; the activity was purely for their pleasure or leisure (but much motoring can be so described).

Consideration

1. What is the current status of The Insurance Commissioner v Joyce, in particular, the well-known dictum of Dixon J? In Imbree v McNeilly at [78] (see [158] above), Gummow, Hayne and Kiefel JJ pointed out that the introduction of statutory provisions for apportionment of liability on account of contributory negligence would now effectively preclude complete denial of liability in a case like Joyce, if the other two forms of analysis adopted in that case (no breach, and voluntary assumption of risk) were not adopted. Voluntary assumption of risk is no longer available: MACA, s140. "No breach" results from the application of a lesser standard of care, or a reduced duty of care, because of the claimant's knowledge of the alleged tortfeasor's reduced capacity, but again that is no longer available: MACA s141.
2. In Miller v Miller at [63] (see [177] above) the plurality said that in determining the content of a duty of care, primacy must be given to identifying the relationship between the parties, a principle of long standing in the law of Australia stemming from the reasons of Dixon J in Joyce. At [64] (ibid.) they pointed out that it is implicit in what was said in Joyce, Smith v Jenkins, and Imbree v McNeilly that the question whether one person owes a duty of care arises from the "relations, juxtapositions, situations or conduct or activities" in question. This is a dictum of Dixon J in Joyce at p57 (see [149] above).
3. I turn then to the dictum of McHugh J in Joslyn v Berryman at [30] (see [154] above). Cook v Cook (1986) 162 CLR 376 has not been overruled: Imbree v McNeilly. Gala v Preston has now been affirmed in Miller v Miller but the reasoning has now been better explained and it is no longer necessary to refer to proximity. However, Imbree v McNeilly does negate the concept of a "fluctuating" standing of care, with which his Honour was unhappy. His Honour's "special and exceptional circumstances" refers not to a case in which no duty of care is owed, but to the circumstances in which the duty of care of a motorist to other road users is attenuated. The only circumstance of which I am aware, from the case law I have read, where a motorist did not owe a duty of care to another road user is where both the motorist and the claimant are involved in a joint criminal enterprise as discussed in Miller v Miller. This is not such a case.
4. Leaving aside any criminal liability for the collision itself, on the evidence before me, the plaintiff was guilty of: (1) driving an unregistered and uninsured motor vehicle on a public road; (2) driving whilst unlicensed; (3) driving under the influence of alcohol. On the same basis, Lamont was guilty of: (i) driving an unregistered and uninsured motor vehicle on a public road; (ii) riding a motor cycle whilst not wearing a helmet; (iii) driving under the influence of alcohol, or, alternatively, a high range PCA offence (see [52] above). Each of the plaintiff and Lamont was guilty of such crimes whether the other rode his machine or not. Lamont was guilty of his crimes if the plaintiff stayed at his house. The plaintiff was guilty of his crimes if Lamont stayed sitting or standing or recumbent at the plaintiff's residence. There was no joint criminal enterprise such as in Smith v Jenkins and Gala v Preston. In this respect the defence elided a common activity into a joint criminal enterprise.

Defence under Civil Liability Act 2002, s 5I

1. Paragraphs 13 and 14 of the Amended Defence dated 30 May 2016 upon which I granted the defendant leave to rely on 31 May 2016 (T74.19), but erroneously date stamped 1 June 2016 (my then Associate advanced the date stamp prematurely), are: "13. Further and in the alternative, in answer to the whole of the Statement of Claim, the Defendant says and the fact is that the Plaintiff was engaged in an activity which involved an inherent risk of harm and the harm suffered by the Plaintiff was as a result of the materialisation of that risk and the Defendant is not liable to the Plaintiff. The Defendant relies upon s5I of the Civil Liability Act, 2002. PARTICULARS (a) both motor cycles were not fitted with headlights and did not have any form of lighting or illumination nor reflectors meaning neither bike had any means of illuminating the length of the road ahead of it nor anything situated on it. The inherent risk of the Plaintiff riding a motorcycle in these circumstances in the dark was that he would collide with something on the road which he could not see so as to avoid it. (b) this was compounded by choosing to ride in company with another motorcycle which similarly was not fitted with headlights, did not have any other form of lighting or illumination or reflectors thereby adding to the inherent risk of collision with that vehicle as well as other objects which may have been on the road. Neither rider was wearing reflective or fluorescent clothing; both wore dark clothing. (c) this was further compounded when both of the motorcycle riders were intoxicated by adding an inherent risk that one or both of them would have impaired awareness, impaired judgment and/or reaction times. (d) the risk of collision could not be avoided by the exercise of reasonable care and skill because: (i) neither rider could see what, if anything was on the road way in front of him; (ii) both of the riders were intoxicated and unable to exercise any reasonable care or skill in the riding of the motorcycle. 14. In further answer to the whole of the Statement of Claim, the Defendant says and the fact is that the Plaintiff was engaged in a dangerous but unnecessary activity and the Defendant is not liable for the harm suffered by the Plaintiff as a result of the materialisation of an obvious risk of a dangerous but unnecessary activity engaged in by the Plaintiff. PARTICULARS (a) riding an off-road motorcycles in the company of another rider both of which cycles were unsafe and not registered; (b) riding an off-road motorcycle in the company of another motorcycl[ist] who was riding under the influence of intoxicating liquor; (c) participating in racing activities with motorcycles with another motorcycle was riding under the influence of alcohol; (d) participating in off-road riding and racing in the early hours of the morning in the dark with another motorcyclist who was riding under the influence of alcohol; (e) participating in off-road bike activities and racing in the dark when neither motorcycle was equipped with headlights, tail lights or reflectors; (f) the collision between motorcycles was an obvious risk in all the circumstances." The plaintiff then filed in Court a reply dated 25 May 2016 (see T75.01) but the same erroneous date stamp was affixed to that document. The one paragraph of that pleading is this: "1. Responding to the defendant's pleading that at the time of the accident Lamont was incapable of exercising any duty of care to other road users (including the plaintiff) [which allegation is not conceded], the plaintiff says that if the road conditions in conjunction with the absence of a headlight on Lamont's motorbike and/or Lamont's intoxication and/or fatigue on the part of Lamont, meant that he was incapable of exercising any care for the safety of other road users (including the plaintiff), then Lamont was under a duty not to take his motorcycle onto the roadway and breach the duty owed to other road users (including the plaintiff) by doing so."

Liability

1. Prior to being amended, par 14 of the Amended Defence, quoted in [193] above, seemed to raise a defence under CLA, Part 1A, Division 5 ("Recreational Activities") but that was not the defendant's intention. Paragraph 14 was amended by replacing the original "recreational" with "but unnecessary". Part 1A, Division 5 does not apply to a motor accident: s3B(2). Paragraph 14 was confined to a factual pleading, which added nothing to the matters I have already canvassed. The defence also relies on ss 5F to 5H of the Act but the effect of those provisions is merely to relieve the defendant/Lamont of any obligation to give notice of the obvious risk. The failure to given such notice is not part of the plaintiff's case.
2. Having found that Lamont owed a duty of care to the plaintiff and not having found any statutory impediment or "defence", there is no reason not to heed par 3 of the Amended Defence: "… if a duty of care was owed to the Plaintiff then the Defendant admits paragraph 9 of the Statement of Claim." Paragraph 9 of the Statement of Claim is this: "9. In crossing to the incorrect side of the road and colliding with the Plaintiff's motorbike, Lamont has breached the duty of care owed to the Plaintiff. Particulars of breach of duty of care (a) Failure to stay within his allocated portion of the roadway. (b) Crossing to the incorrect side of the roadway. (c) Failure to steer or control the motorcycle. (d) Driving the motorcycle whilst intoxicated. (Police measured BAC of 0.107)" The facts establishing a cause of action in the tort of negligence are therefore admitted, the proviso having been established.

Contributory negligence

1. The next issue is that of contributory negligence. Paragraph 15 of the Amended Defence is this: "15. Further in the alternative the Defendant says the Plaintiff's injuries were wholly or partially caused by his own negligence and in the circumstances it is just and equitable that the damages payable be reduced by 100% or such other amount as the Court considers just and equitable in the circumstances and the Defendant relies upon Division 8 of the Civil Liability Act 2002 including s5R and s5S. PARTICULARS OF CONTRIBUTORY NEGLIGENCE (a) Riding an off-road motorcycle while under the influence of intoxicating liquor; (b) Riding an off-road motorcycle in the dark whilst the motorcycle was unsafe and had no head light; (c) Engaging in a jointed enterprise to ride off-road motorcycles to an off-road dirt bike area whilst both the Plaintiff and the other motorcyclist were riding under the influence of alcohol; (d) Failing to keep a proper lookout; (e) Riding at a speed which was too fast for the prevailing conditions; (f) Failing to swerve or turn aside or to take evasive action to avoid a collision with another motorcycle; (g) Riding motorcycles in the dark when both the Plaintiff and the other motorcyclist were wearing dark clothing. (h) Engaging in a joint enterprise to ride off-road motorcycles with another motorcyclist when the Plaintiff knew or ought to have known that Timothy Lamont was intoxicated."
2. As to those particulars: 1. I accept that the plaintiff was riding an off-road motorcycle whilst under the influence of alcohol (see [135] to [192] above); 2. I accept that the plaintiff's motorcycle had no headlight, or any other light or reflector, but there was no evidence that it was otherwise unsafe to ride; I also accept that there was no natural celestial light at the time, but street lighting and lines of visibility were good on the relevant section of LCER and if lighting were a factor in the collision (which I do not accept) it could only have been a minor one; 3. I assume that what was intended by "jointed enterprise" was a "joint enterprise" which, as I have already pointed out at [190] is an inappropriate description of a common activity; leaving aside the pleonastic averment that the plaintiff was riding under the influence of alcohol, I interpret this particular to mean that the plaintiff rode his motorcycle in company with Lamont knowing or ought to have been knowing that Lamont was riding under the influence of alcohol; I accept this: see [203] above; 4. this allegation is almost de rigueur in cases such as these; there is no available evidence on this issue; 5. I have found that the plaintiff was travelling between 52 and 53 kph (see [73] above) which was slightly above the speed limit and that Lamont was travelling at a speed just over 60 kph; there is no evidence that the plaintiff's speed was excessive "for the prevailing conditions"; 6. there is no evidence either way on this issue; the plaintiff's alcohol intake may well have affected his perception/reaction time, but that is really covered by the first particular; 7. firstly, see (b) above; I dealt with this issue at [60] and [61] above where I concluded that there were sufficient contrasts of colour on both the plaintiff's motorcycle and his helmet to rebut any suggestion that the plaintiff was in any way "disguised" or made less visible than the plaintiff on his motorcycle ought to have been; finally, there is no evidence of what clothing the plaintiff was wearing at the time of the collision, aliter for Lamont - see [63] above; 8. this is another way of expressing what I have interpreted particular (c) to mean and draws, obviously, the same comment.

I make the following observations about this table: 1. The first two items in the table are, in my assessment, not material factors to the occurrence of the collision as the street lighting in the relevant section of LCER was adequate for each of the riders to have seen the other and their motorcycles and the plaintiff's helmet had sufficient contrast to make them clearly visible: as to lighting see my conclusion at [59] above; as to the motorcycles see [60] to [63] above. 2. The significance of the helmet is twofold: firstly, Lamont may not have brought his with him to Lake Conjola and had none to wear, but the plaintiff's wearing his helmet indicates he was taking precautions for his own safety; secondly, although the plaintiff's helmet may have attenuated the sound of the approach of Lamont's machine, there was nothing to muffle the sound of the approach of the plaintiff's machine towards Lamont: see [75] and 146 above. 3. There is no doubt that Lamont crossed the marked centreline and central camber of LCER and collided with the plaintiff on the plaintiff's correct side of the carriageway; furthermore, as the collision was on the left-hand side of each machine/rider, Lamont had crossed over the path of plaintiff. 4. My findings as to speed are different: Lamont was travelling at a speed just over 60 kph and the plaintiff was travelling at a speed between 52 and 53 kph. The plaintiff's infraction of the speed limit might be excused by the police but I doubt Lamont's infraction would be. In any event, speed is a factor in every collision: the higher the speeds, in general, the greater the risk. 5. The actual level of Lamont's intoxication has been ascertained by Dr Perl at 0.156g/100ml. The level of the plaintiff's alcohol affectation can not be so ascertained. I have done the best I can on the evidence available (see [135] to [142] above). I concluded that it is likely that the plaintiff has consumed a similar amount of alcohol to Lamont, but that the effect of a similar alcohol intake on the plaintiff would not be as great as it was on Lamont. 6. That which this table completely omits is the fact that the plaintiff knew or ought to have known of the extent of Lamont's drinking since about 4.30pm of the previous day and observed the effects of that alcohol consumption and concluded, as a matter of common sense and common experience in our society, that he ought not drive a motor vehicle, and that driving in his company could be dangerous for either or both of them. This is the matter particularised in pars (c) and (h) of the amended defence upon which I commented in [207] above. If the plaintiff forgot about Lamont's alcohol intake, or misconceived its effect, or ignored it, such might be explained by the plaintiff's own alcohol intake. In any event, responsibility for such oblivion misperception or acceptance is the plaintiff's. The plaintiff ran an obvious risk, probably because of his own alcohol intake.

Lamont 1. riding his motorcycle whilst intoxicated, BAC 0.156g/100ml, with its effect on his ability to ride as described by Dr Perl, recited at [52] above: very substantially impaired; 2. as a result of that intoxication, either directly or indirectly, he crossed the centreline of LCER, over the central camber, passed across the path of the plaintiff, causing the two machines/riders to collide on their left hand side; 3. he was travelling a little in excess of 10kph over the speed limit, that increased speed materially contributed to the violence of the collision, increasing the potential to cause damage; 4. assuming he had arisen at 9am on 15 October 2013, he had been without sleep for 21 hours; at a minimum one can assume he had been without sleep for at least 20 hours and one cannot, therefore, exclude fatigue as a causal factor; 5. he failed to heed the auditory cue of the approach of the plaintiff's machine, which ought to have alerted him to keep left.

Cooper 1. riding his motorcycle under the influence of alcohol, but, on my findings, he was not as badly affected by his alcohol consumption as was Lamont; 2. like Lamont, he had been without sleep for a number of hours, perhaps a greater number than Lamont, as he had to make a longer journey than Lamont to attend the last session of the domestic violence course at Nowra; again, his fatigue can not be excluded as a causal factor; 3. he foolishly, perhaps because of the first factor I last identified, ran the risk of riding in company with Lamont when he ought to have realised that in so doing he was running the risk of the occurrence of what actually occurred or some similar harm.

1. The fact that each of the riders was riding an uninsured and unregistered and unregistrable motorcycle is irrelevant because exactly the same accident would have occurred if both motorcycles had been registered and insured. The fact that the plaintiff was not a licensed rider is also irrelevant as he, like Lamont, was an experienced rider of the motorcycle involved in this collision. Furthermore, it must also be borne in mind that a number of objective facts suggest that the plaintiff was seeking to take care for his own safety: (a) he wore an appropriate helmet; (b) he kept to the correct side of the carriageway; (c) he was riding at a speed which most motorists would describe as "at" or "on" the speed limit. Such is to be contrasted with Lamont's actions which involved a breach of the most fundamental principle of driving in Australia: KEEP LEFT.
2. I accept, as has been submitted by the plaintiff, that the greater responsibility for the occurrence of this collision lies with Lamont. The simple fact remains that, if Lamont had kept left, this collision would not have occurred. However, one should not concentrate on that proposition as it ignores the questions of why he did not do so and how those circumstances arose. After carefully weighing the relevant causal factors, derived from the whole conduct of each of the plaintiff and Lamont, I apportion one third of the responsibility for this collision to the plaintiff and two thirds of the responsibility to Lamont. Accordingly, the plaintiff's damages are to be reduced by 33% on account of his contributory negligence.
3. I can not leave this issue without observing that perhaps the plaintiff (or his lawyers) will be disappointed with my findings concerning his level of sobriety. Be that as it may, I have done my best to do my sworn duty. I quoted MACA s138 in full at the commencement of this section of these reasons to show that Parliament has attempted to take steps to ensure that alcohol affected claimants have their damages reduced to take into account any contribution their alcohol affected behaviour made to an accident. The present plaintiff has escaped the provisions of s138(2)(a) because he was not convicted of any alcohol related offence number is s138(7). That is because of the negative BAC test, which was likely to have been flawed because of treatment afforded to the plaintiff in the six hours prior to his blood sample being taken, and, as far as "driving under the influence of alcohol" is concerned, perhaps because of an exiguity of evidence available to the police, or perhaps because of police sympathy for a very badly injured man. Nevertheless, it is the Court's duty to apply such public policy that can be discerned from a statute. In any event, the common law has been doing the same since motor vehicles first appeared on public roads.

(a) Non-economic loss

1. Non-economic loss is defined in MACA s3 to mean: "(a) pain and suffering; and (b) loss of amenities of life; and (c) loss of expectation of life, and (d) disfigurement." The maximum of the amount that may be awarded under the head of damages has been since 1 October 2016, $521,000: s134. At the time of addresses the maximum was $511,000. The maximum applicable is that at the date of the award of damages, the date of this judgment. Under CLA the maximum which may be awarded for non-economic loss is $605,000 since 1 October 2016. However, the schemes of the two Acts are different. Under CLA, the maximum amount may only be awarded "in a most extreme case". Under CLA, no damages may be awarded for non-economic loss unless the severity of non-economic loss is at least 15% of a most extreme case. CLA s16 contains a table which requires the court to assign to a particular case a proportion of the maximum amount which may be awarded. Between 15% and 32% there is a sliding scale commencing at 1% of the maximum. MACA, s134 merely provides a cap on the amount that may be awarded. MACA provides a statutory threshold to obtaining an award of damages for non-economic loss (a degree of permanent impairment as a result of the injury covered by the motor accident greater than 10%). As the plaintiff has been admitted to the LCS Scheme he is deemed to have achieved that threshold. Having achieved the threshold, a claimant is entitled to have his non-economic loss assessed in accordance with common law principles. If, however, that would result in the claimant being awarded more than the statutory maximum, the award must be reduced to the statutory maximum: Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199; RACQ Insurance Ltd v Motor Accidents Authority of NSW (No 2) [2014] NSWSC 1126 at [25].
2. Before I can turn to deal with this issue, it is necessary for me to consider what would likely have been the plaintiff's future path in life had he not been involved in this collision. Consideration of the plaintiff's claim for economic loss also requires me to consider the same subject. It is to be recalled that at [133] above I pointed out that I accepted most of what the plaintiff said with reservations on some discrete issues. I have canvassed the plaintiff's pre-collision history in some detail. In 2003, when he was forced to leave school and commence treatment for drug abuse, he clearly "ran off the rails". However, he managed to complete Year 10, or its equivalent, and then to commence and complete an apprenticeship as a carpenter and, on Mr Streeter's evidence, he was a very good tradesman. Despite his continuing to use cannabis and alcohol, he had a regular job and was supporting his then de facto wife and two young children. He had interests outside his work such as karate, surfing, motor cars and trail bike riding. The plaintiff again "ran off the rails" when he learnt of Jade's infidelity. His problems with illicit drugs and alcohol were exacerbated and came to the forefront in August 2012. From 20 August onwards, he was seeking and obtained treatment to overcome what could be described as cannabis and alcohol addictions. Initially, the plaintiff's focus was on returning to work: see [28] and above. His focus then shifted towards his children.

(b) Past economic loss

1. The plaintiff's Schedule of Damages (as at 30 May 2016), MFI 6, makes this claim: "From 1 July 2014 to present AWE for construction workers ($1,704.30 gross p/w) $1,270 net p/w x 101 weeks $128,270" Despite the plaintiff's evidence that he intended to return to work in "early 2014", the plaintiff's actual claim only commences on 1 July 2014. During addresses, I suggested to Mr Stone SC a different approach to that given above. As at 25 May 2015, Mr Streeter was paying his sub-contractor carpenter $350 per day (exhibit SS par 21). At the time of giving evidence, he was paying his sub-contractor $380 per day (T351.24). From those figures I proposed that is 2014, Mr Streeter would have been paying $330 per day. At T471.46 I said this: "If you average out the work as a subcontractor, not working when there is no demand for work, not working when it rains, et cetera, you might be looking at, say, 26 full weeks per annum. So we look at $330 multiplied … by 5 to give you a weekly amount, multiplied by 26, that gives you $42,900 per annum." On the same basis $350 pw gives a total of $45,500 per annum gross and $380 pw gives a total of $49,400 per annum gross. The figure of $330 pw for 26 weeks per annum provides an average of $825 pw gross. Ex J tells me that from 1 July 2013 to his stopping work in August 2012, the plaintiff earned as a subcontractor carpenter $6, 286 net, before tax. This would have been when working for Mr Streeter. If the period were 7 weeks, that indicates a weekly average of $898; if the period were 8 weeks, that indicates a weekly average of $785.75. The income over this period could include income for work done prior to 1 July 2012.
2. If I allow $825 pw gross for the financial year 1 July 2014 to 30 June 2015, I am allowing $709.80 pw net (T474.19). That gives an annual figure of $36,910 (rounded up by 40 cents).
3. For the financial year commencing on 1 July 2015, I proposed to allow $350 per day, for 5 days per week, for 39 weeks per annum. That monetary sum was the figure Mr Streeter was paying as at 25 May 2015. The increase in days worked per annum represents a gradual return to work as the plaintiff re-established himself in his industry. $350 per day for 5 days for 39 weeks per year gives a total of $68,250 which provides an average of $1,312.50 pw which I rounded off at $1200 pw. That is a gross figure. The net figure is $949.20 (T474.25-T474.33). For 52 weeks that amounts to $49,358.40, which I round up to $49,360.

(c) Past superannuation

1. The plaintiff claims 11% of past economic loss. The rate is not controversial. The plaintiff has, however, in seeking loss of future superannuation, discounted the claim by 50% because of the plaintiff's prospects of self-employment. In my view, the same discount ought be made for past superannuation. The plaintiff had entered self-employment when working for Mr Streeter. That is what he intended to do prior to learning of Jade's infidelity. Accordingly, I allow ($123,100 @ 11%) ÷ 2, giving a total of $6,770 (rounded down).

(d) Future economic loss

1. According to the plaintiff's Schedule of Damages, he claims the average weekly earnings for construction workers ($1,704.30 pw gross / $1,270 pw net) for his future working life (till 67 years) less 15% for the vicissitudes of life ("the usual discount"). At the hearing, the appropriate multiplier was 909.9. Since the plaintiff has now turned 29 years old, the multiplier is 902.0. This formulation provides a total of $973,709, which I round off at $973,710.
2. The defendant's submission on this issue is: "89. Insofar as future loss of earning capacity is concerned, the Plaintiff's capacity (irrespective of the accident) is necessarily comprised by his well documented and long-standing forensic/criminal history, mental health problems, anger problems, and cannabis and alcohol dependence. 90. What is more, to the extent that the Plaintiff's claim for future loss of earning capacity is based on his inability to now run his own carpentry business, it must be remembered that the Plaintiff's business was only in its infancy and therefore faced the usual risks that any new business would encounter. 91. Once the Plaintiff's pre-existing problems are taken into account, together with the fact that the Plaintiff still has a residual earning capacity (albeit limited) and had never earned $1,270.00 net per week prior to the accident, it is submitted that a future loss of $400.00 net per week is appropriate. Further, it would also be appropriate to apply an increased reduction for vicissitudes of 30% which produces a future loss of $254,772.00" I do not share the defendant's pessimism about the plaintiff's future, which follows upon my analysis of the plaintiff's past and likely future. By allowing only $400 pw net and applying 30% for the vicissitudes of life, it appears to me that the defendant is engaged in double discounting. He was earning either $898 pw or $785.75 pw net before tax when working for Mr Streeter - see [231] above. Mr Streeter was happy to re-engage him. If one halves the average weekly income because of "existential" problems, there is no need to apply a 30% discount. I accept that the plaintiff had not earned $1,270 net pw prior to the collision. He had only completed his apprenticeship on 8 January 2012 (see [19] above). He only had 7 months experience as a carpenter when he "ran off the rails" in August 2012. I have allowed the plaintiff two years (1 July 2014 to 30 June 2016) to re-establish himself in the building industry and to commence demanding average weekly earnings in that industry. I do not believe this to be unrealistic, especially considering Mr Streeter's evidence about his competence.

(e) Future superannuation

1. The plaintiff claims, in his Schedule of Damages, 14% of his future economic loss less 50% for the prospects of self-employment. I originally thought I ought reduce the claim by 67% to account for the fact that the longer the plaintiff stayed in the building industry, the greater became the prospect of self-employment. However, the plaintiff might have been able to form his own company and that company might have provided to him superannuation because it employed him: see [112] above. Accordingly, I allow the plaintiffs claim ($973,710 @ 14%) ÷ 2 is $68,160 (rounded up).

(f) Other heads of damage

1. No other heads of damage were claimed, no doubt because of the plaintiff's admission to the LCS Scheme and MACA s141A.

(g) Summary and total

1. The heads of damage allowed are: (a) Non economic loss $ 500.000 (b) Past economic loss $ 123,100 (c) Past superannuation $ 6,770 (d) Future economic loss $ 973,710 (e) Future superannuation $ 68,160

Total: $1,671,740 Two thirds of that sum is: $1,114,493

Order

1. I give verdict and judgment for the plaintiff against the defendant for $1,114,493. I shall hear the parties on any question concerning costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2017