Cordin v The Nominal Defendant

Cordin v The Nominal Defendant - [2016] NSWDC 12 - NSWDC 2016 case summary — Zoe

Table of Contents Factual background [1] - [6] Issues [7] - [9] Overview of the evidence [10] - [15] Credibility and reliability of testimony [16] - [19] Approach to assessing credibility of plaintiff's evidence [20] - [27] Evidence from lay witnesses at accident scene [28] - [102] Mr Bessabava's evidence [29] - [38] Mr Marshall's evidence [39] - [46] Mrs Cordin's evidence of events at the scene [47] - [60] Ambulance transport records [61] - [80] Mr Hartley's evidence [81] - [102] Lismore Hospital records [103] - [113] Retrieval by air ambulance to Brisbane [114] - [116] Princess Alexandra Hospital records [117] - [120] Evidence from hospital doctors [121] - [163] Dr Welgama's evidence [126] - [154] Dr Lando's evidence [155] - [163] Lismore Council records [164] - [166] Police report of the incident [167] - [170] Evidence of Constable Antequil [171] - [179] Mrs Cordin's evidence of subsequent events [180] - [202] Plaintiff's evidence [202] - [247] Expert evidence [248] - [345] Opinions in the first report of Dr Carnavas [252] - [261] Oral evidence of Dr Carnavas [262] - [298] Opinions in first report by Mr Griffiths - 29 January 2015 [299] - [330] Opinions in second report by Mr Griffiths - 2 March 2015 [331] - [336] Dr Carnavas' second report in response [337] - [344] Approach to resolution of competing expert opinions [345] Findings [346] - [517] Location of the accident scene [348] - [353] Condition of the road surface [354] - [374] Plaintiff's retrograde recollection of events [375] - [382] Plaintiff's manner of riding his bicycle [383] - [393] Plausibility of perception of a striking force from behind [394] - [410] Plaintiff's anterograde recollection of events [411] - [436] Significance of statements in ambulance / hospital records [437] - [466] Handover of care of plaintiff [467] - [477] Significance of police and council records [478] - [486] Factual observations by Dr Carnavas [487] - [496] Factual observations by Mr Griffiths [497] - [501] Nature of plaintiff's reconstructed account of the accident [502] - [517] Conclusion on credibility/reliability of evidence of the Cordins [518] - [526] Resolution of conflicting expert opinions [527] - [529] Reliability of conclusions of Mr Griffiths [530] - [599] Assumed location of accident scene [531] - [535] Assumed speed of the bicycle [536] - [539] Assumed contact of wheel / pothole [540] - [542] Assumed seated position of plaintiff [543] - [547] Assumed nature of road surface [548] - [554] Discrepant findings of damage [555] - [567] Lack of damage to frame / handlebars [568] - [575] "Lateral eccentricity" theory [576] - [578] Inconsistency with laws of physics [579] - [599] Reliability of opinions of Dr Carnavas [600] - [607] Conclusions on expert evidence [608] - [611] Involvement of an unknown motor vehicle [612] - [644] Alleged negligence [645] - [659] Causation of harm [660] - [661] Alleged contributory negligence [662] - [665] Reasons for evidence ruling during trial [666] - [669] Reasons for expert evidence ruling during trial [670] - [723] Disposition [724] Costs [725] Orders [726]

[6]

Overview of the evidence

The plaintiff gave oral evidence, and called evidence from his wife, Mrs Brenda Cordin, who had arrived at the scene after the event. Mrs Cordin had also been involved in the subsequent medical, police and council communications that were the subject of evidence in the defendant's case. The plaintiff did not call any other oral evidence from persons who had arrived at the scene and who had gone to his assistance.
The plaintiff also called oral evidence from an accident reconstruction engineer, Dr Paul Carnavas, to provide an expert analysis on the question of whether or not it was likely that a motor vehicle had been involved in the incident in which the plaintiff sustained his injuries.
On factual matters, the defendant called oral evidence from Mr Sathya Bessabava, who was first on the scene to attend to the plaintiff and give him first aid, Mr Kester Marshall, who also came onto the scene shortly afterwards, and Constable Aaron Antequil, who commenced the police investigation of the incident. The evidence of Constable Antequil concerned the nature and the content of the communications between the plaintiff, his wife, and the police after the incident.
The defendant also called other witnesses to explain aspects of the plaintiff's medical records in relation to his injuries, where it appears that only parts of those records were tendered. Explanatory evidence was called from Mr Terry Hartley, the ambulance paramedic who first attended upon the plaintiff at the accident scene, Dr Udeni Welgama, who was a registrar in emergency medicine, and Dr Joel Lando, who was a registrar in orthopaedics. Both of those doctors had assessed and treated the plaintiff after he was transferred by helicopter from Lismore Hospital to Princess Alexandra Hospital in Brisbane.
Before the matter was called on for hearing, during the course of a circuit list review, the parties were encouraged to take the opportunity for the opposing experts to meet in order to seek to narrow the scope of the matters in dispute between them, but a meeting along those lines did not eventuate: T84.6.
The defendant relied upon reports from an accident reconstruction expert, Mr Michael Griffiths, who was present at the hearing. The defendant did not initially intend to call him to give oral evidence as he was not required for cross-examination on his served reports.

[8]

Approach to assessing credibility of plaintiff's evidence

The focus of the defendant's attack on the credibility and the reliability of the evidence of the plaintiff and that of his wife was on the central issue of whether a motor vehicle had been involved in the circumstances of the plaintiff's injury.
That approach also called into question the credibility of the plaintiff's evidence as to when he had first claimed that a motor vehicle had been involved in the incident. This therefore requires an evaluation of the available evidence from all other sources that touch upon the circumstances of the accident and its aftermath.
The defendant attacked the credibility of the plaintiff's testimony as to the claimed circumstances of the accident. In essence, that attack centred around the submitted proposition that the evidence given by the plaintiff concerning the circumstances of the accident was improbable, especially when evaluated against the documentary evidence of an historical nature comprising the ambulance, the medical, the police, and the council records, and the reports of the defendant's crash reconstruction expert.
At the outset, a difficulty is identified with that proposition. This relates to the manner in which the plaintiff was cross-examined, in an at times insistent and pressing style, in which, with some exasperation, numerous answers sought to be given by the plaintiff in response to questions directed at him, were cut short by the cross-examiner interposing a further question. In those circumstances, a number of the plaintiff's interrupted answers were left incomplete: T14.44; T17.37; T17.42; T21.15; T21.45; T23.6; T23.14; T23.20; T26.10; T30.3; T31.2; T34.19; T35.22; T37.8; T38.16; T39.5; T39.35; T41.14; T43.37; T45.27; T47.40; T52.49; T56.20; TT62.10; T62.28.
Another difficulty emerged in the context of a credit analysis in assessing the proper construction to be placed upon the plaintiff's answers to multiple propositions contained within single questions that were put to him in cross-examination.
In my assessment, these matters made it difficult for the defendant to sustain a credit attack on the plaintiff's evidence. Nevertheless, the credibility and the reliability of the plaintiff's evidence must be evaluated on the available material.
The uncontroverted evidence described the plaintiff has having suffered significant pain, and for a time, disorientation and incoherence, as an aftermath of his injuries. The discharge referral note prepared at Lismore Hospital in preparation for the plaintiff's transfer to the Princess Alexandra Hospital in Brisbane noted that apart from his head injury and his lacerated forehead, the plaintiff had symptoms of a central cord compression syndrome, crush fractures at the levels T6, T7, T8 and significant paraesthesia in both upper limbs, which was causing him distress, and for which he had been given intravenous analgesia of an unstated type and dosage at an unstated time or times: Exhibit "5", Tab 3, p 25.
In view of the nature of the challenges made to the credibility and probity of the evidence of the plaintiff and his wife, as appears in the index to these reasons, I consider that it is appropriate to defer recording my findings of fact until a later stage of these reasons, and until after I have first examined the surrounding evidence from all the other sources for the purpose of undertaking an evaluation of the credibility and the reliability of the testimony of the plaintiff. The recording of those findings commences at paragraph [346] below.

[10]

Mr Bessabava's evidence

The defendant called Mr Bessabava, a carpenter by trade, who is resident of the Byron Bay area, and who had been visiting friends in the district. He had been driving his vehicle in a southerly direction down Minyon Falls Road, which he described as a dirt road in poor condition, with rocks, potholes and loose gravel on the surface of the roadway: T169.40 - T170.5. He described the road as narrow, with a dry clay, loose dirt and rock surface, with potholes that had been there for some time: T171.24 - T171.38.
In the late morning, which he thought was about 10.30am or 11.00am, he was driving slowly, at about 40kph in a generally southerly direction. He had passed two car parks on the right side of the road before he encountered the accident scene: T170.10 - T171.2.
Mr Bessabava agreed that as he journeyed down that road, his visibility of the roadway ahead was very limited because of the location of bends in the roadway, with some stretches of visibility being for distances of 100 metres, or 200 metres, but generally providing low visibility: T175.26 - T175.37.
Initially, Mr Bessabava said he had seen no cars travelling in either direction as he drove from Dorroughby: T171.5 - T171.11. When he was asked whether he had seen any cars moving in the vicinity of the Minyon Falls car park, he was less certain, and said "I'm pretty sure they were just parked": T171.15.
When Mr Bessabava arrived at the accident scene, he saw the plaintiff laying in a face down position on the road with his face partially immersed in a water filled pothole. He had first seen the plaintiff from an approximate distance of between 50 to 100 metres: T171.15 - T174.31. He immediately proceeded to assist the plaintiff by placing his own hand under the plaintiff's face in order to tilt the plaintiff's face and head, which had been partially immersed in a water-filled pothole in the roadway. He then rolled the plaintiff over, at which time he noticed that the plaintiff was breathing heavily, and that he was semi-conscious: T172.10 - T172.50.
Mr Bessabava then assisted the plaintiff to his own parked vehicle, where he waited until further help and an ambulance arrived. In the meantime, he placed a towel around the plaintiff's head. Whilst doing so, he observed the plaintiff to sit up and remain there "till he got his consciousness back. But he wasn't really very coherent at all": T173.1- T173.10.
Shortly afterwards, some other people arrived, including Mr Marshall, who then took over assisting the plaintiff until the arrival of other help: T173.12 - T173.20. Mr Marshall had arrived from the opposite direction of travel of the plaintiff and Mr Bessabava: T176.5. Mr Marshall had arrived after Mr Bessabava had already helped the plaintiff to his feet: T176.5. Mr Marshall stated that the plaintiff was disoriented at that time: T176.9.
Whilst Mr Bessabava was in the vicinity, he noticed the plaintiff's bicycle on the road in a location about a metre or two from where he had seen the plaintiff, but he was not able to indicate whether the bicycle was damaged, as that had not been his concern at that time: T173.39 - T174.8.
During the time that Mr Bessabava had assisted the plaintiff, he did not hear the plaintiff say anything about the involvement of a motor vehicle in the accident. Nor did he hear anyone else at the scene make a suggestion to that effect: T174.45 - T175.2. Mr Bessabava said that if he had heard such a suggestion, he might have called the police: T175.22.
The evidence of Mr Bessabava was not the subject of controversy in any way. It was not improbable in any respect, and I accept his evidence in its entirety.

[11]

Mr Marshall's evidence

The defendant called evidence from Mr Kester Marshall, a naturopath, who had been driving a van in the opposite direction to that in which the plaintiff had been travelling: T164 - T165.
Mr Marshall stated that he could not recall whether, during his journey to the scene of the accident, there had been any vehicles travelling towards him, that is, in a southbound direction: T165.47.
When Mr Marshall came upon the scene, he saw someone whom I infer to have been Mr Bessabava, to be standing next to the rear of a parked vehicle with the boot open, and with the plaintiff sitting on what he described as the bumper bar of that vehicle. He noticed Mr Bessabava, who seemed to Mr Marshall, to be very agitated, and a bit flustered: T166.1 - T166.25.
Mr Marshall made some observations concerning the plaintiff. He saw that the plaintiff had "a very nasty gash" to the left side of his forehead which had been attended to with the placement of a dirty towel to cover the wound: T166.29; T168.20. He attempted to converse with the plaintiff by asking him if he was okay. Mr Marshall observed the plaintiff to be "very confused", and "didn't say anything, no, he was mainly mumbling": T166.48.
Mr Marshall asked the plaintiff what had happened, and said the plaintiff replied: "I must have come off my bike". At that time, Mr Marshall described the plaintiff as being "quite confused, obviously out of sorts": T167.1 - T167.5.
Mr Marshall remained there with the plaintiff for about 30 to 40 minutes, until the arrival of the ambulance, which Mr Marshall's wife had called following their arrival at the scene: T167.10 - T167.23.
Mr Marshall continued to make observations of the plaintiff in that time. Mr Marshall said that the plaintiff had made no mention of a motor vehicle: T167.33. Mr Marshall expanded upon his earlier description of the plaintiff's condition by describing the plaintiff as being "agitated, trying to get up to retrieve his bicycle, and making - I wouldn't even say conversation, but making noises alluding to the fact that he needed to get to his bicycle and get home": T167.31 - T167.35. He added that the plaintiff was "very disoriented" at that time; T167.41.
The evidence of Mr Marshall was not the subject of controversy. It was not in any way improbable, and I accept his evidence in its entirety.

[12]

Mrs Cordin's evidence of events at accident scene

In the paragraphs that follow, I set out those aspects of the evidence of Mrs Cordin concerning her observations of the events surrounding the plaintiff's accident that do not involve controversy.
Mrs Cordin travelled to the accident scene a little while after receiving a telephone call from someone who had informed her that the plaintiff had been found on the road: T86.24. She said she had received that call at 10:59am: T86.42. She said that she left home at about 11:04am to travel to the accident scene: Exhibit "E", par 3.
Mrs Cordin said, without contradiction, that she had arrived at the accident scene before the arrival of the ambulance, and on her arrival, she saw her husband laying in the back of a small black four-wheel drive vehicle, with a towel on his head: T87.8.
At the time, Mrs Cordin had tried unsuccessfully to speak to the plaintiff, and she had observed that he was trying to sit up, that he had a towel on his head, and that he was screaming in pain, and not wanting to be touched: T87.31 - T87.42.
Before seeing the plaintiff, Mrs Cordin had rung triple zero emergency number several times to ask about when the ambulance was likely to arrive: T87.50; Exhibit "E", par 8. That evidence was consistent with the timed contents of the ambulance records: Exhibit "5". Tab 1, p 12.
After her unsuccessful attempts to speak to the plaintiff, Mrs Cordin proceeded to take a photograph of the pothole on the roadway in which she had seen blood: Exhibit "C"; T87.45 - T88.9. That photograph, which has been enhanced, is reproduced below: [Exhibit "C"].
Mrs Cordin described the pothole as being about the size of a watermelon, and she observed that the pothole contained water from the last shower of rain, and that it was mixed with blood: Exhibit "E", par 9.
Mrs Cordin said that she then gathered up the plaintiff's broken glasses from the roadway, she took possession of the plaintiff's bicycle and the broken pieces of his helmet, she placed them in her vehicle and drove home. Later, at about 1.00pm, she drove to Lismore hospital: T88.34 - T89.5.
Mrs Cordin agreed that when she saw her husband laying in the back of the vehicle, which I infer belonged to Mr Bessabava, she was trying to work out what had happened, and in the course of those events, her mental processes included the notion that a motor vehicle may have been involved in the incident in which her husband became injured: T104.8 - T104.23.
Mrs Cordin denied the suggestion that by the time she had arrived at the accident scene she had in her mind the notion that her husband had been struck by a motor vehicle: T103.48. Instead, she stated that she was very worried and confused at the scene of the accident as to how the accident had occurred: T103.50 - T104.2. She had also stated as much in her statement to the police dated 23 October 2012, in which she said that at the scene, she was worried and confused as to how the accident had happened, and she enquired of those at the scene of the whereabouts of the car that she thought had hit her husband. She said that in response to her enquiry, no-one there appeared to know anything about the involvement of a motor vehicle: Exhibit "E", par 9.
Although the evidence of Mrs Cordin as cited in the preceding paragraph may on its face suggest controversy as to her mindset on arrival at the accident scene, on a consideration of her evidence as a whole, in my view, nothing turns on this evidence concerning background matters. The question of whether or not it was Mrs Cordin who had suggested to her husband that there had been involvement of a motor vehicle in the accident when she saw him in hospital, is reserved for later consideration.
Mrs Cordin was asked about whether she had seen skid marks on the roadway at the accident scene, and she answered that the roadway was still wet, and that she had seen many tyre marks on the roadway: T104.40 - T104.46.
Whilst that evidence appeared to be at some variance to the evidence of Mr Bessabava, who described the road surface as being dry, I do not discount the possibility that the difference in their respective evidence concerning that observation may have related to wetness and tyre marks that could have been due to subsequent traffic, or rescue activity near the water-filled pothole where the plaintiff had been found.
In my view, the cross-examination of Mrs Cordin on this point was not sufficiently specific to reliably raise a point of contradiction on this aspect of her evidence. It appears from her evidence that generally, she had not been looking for skid marks on the roadway: T105.34. I do not consider this point to reflect adversely on Mrs Cordin's credit as a witness.

[13]

Ambulance transport records

Some ambulance transport records relating to the plaintiff were tendered by the defendant: Exhibit "5", Tab 1, pp 1 - 13. They comprised three discernible segments which are identified as follows.
The first segment (Exhibit "5", Tab 1, pp 11 - 13) was a certified copy of a computerised Incident Detail Report record dated 2 September 2012. It shows timed details of when the call for an ambulance was logged, followed by the sequence of events involved in the assignment and the despatch of the ambulance, the activity log of the job until the care of the plaintiff was handed over to the staff at Lismore Hospital, as well as some related commentaries.
The second segment (Exhibit "5", Tab 1, pp 1 - 6) is described as a consolidated copy of the record of attendance of the ambulance at the scene and afterwards to assist the plaintiff on 2 September 2012. The consolidation was carried out by someone other than those ambulance officers who had attended the plaintiff at the accident scene and who had made the original notes.
The third segment (Exhibit "5", Tab 1, pp 7 - 10) relates to the helicopter air ambulance retrieval transportation of the plaintiff from Lismore Hospital to the Princess Alexandria Hospital in Brisbane on the evening of 2 September 2012.
The significance of the first segment of those records is as follows.
First, that first segment of the ambulance records shows that the call for an ambulance was received at 10:58:45am, and that an ambulance that was already en route was allocated the job at 11:04:26am, the allocation process apparently having taken some 22 seconds. The ambulance was stated to have arrived at the scene at 11:32:50am, a matter to which I shall shortly return: Exhibit "5", Tab 1, p 11.
Secondly, the first segment of those ambulance records provides objective confirmation of the evidence given by Mrs Cordin, where she stated that she had rung the 000 number twice before the ambulance arrived: T87.50. The records show that two private calls were respectively made to the 000 number at 11:15:47am and 11:33:22am: Exhibit "5", Tab 1, pp 12 and 13. The records show that the first call appears to have been made from the plaintiff's home, as that was the address recorded for the call, and the second call was recorded as having been received from the scene of the accident.
Thirdly, the first segment of those ambulance records shows that at 11:13:54am, which was 2 minutes before Mrs Cordin had rung the 000 number, and before any ambulance officer had spoken to the plaintiff, and some 9 minutes after the ambulance had been despatched to the scene, and well before they arrived at the scene, the ambulance personnel had somehow been made aware of the fact that the plaintiff had a past history of jaw replacement surgery 10 months earlier: Exhibit "5", Tab 1, p 12.
This evidence raises a question as to whether or not it was the plaintiff who provided that history to Mr Terry Hartley, the ambulance paramedic, as was stated in Mr Hartley's evidence, or whether this information was conveyed to ambulance personnel over the telephone beforehand by someone else, and possibly later either confirmed or assumed by Mr Hartley from what he had been told: T79.41 - T80.15; T82.19.
As that aspect of history taking was unclear, in my view this raises a doubt about the sequence of Mr Hartley's history taking from the plaintiff, and its content. Although there was some oral evidence that the ambulance service had a protocol for gathering information at an accident scene, Mr Hartley stated that the procedure for following such protocols was adaptable, and it varied according to the circumstances: T79.13. In my view, this therefore suggests that unreserved reliance cannot be placed on considerations of usual professional practice in order to make assumptions from which to draw positive inferences as to the sources of information about the plaintiff or about details of the accident itself: Elayoubi v Zipser [2008] NSWCA 335, at [86].
Fourthly, the first segment of the ambulance records shows that there appears to be a minor timing discrepancy in the record, as the front sheet shows the ambulance arrived at the scene at 11:32:50am, whereas the timed commentary log shows that at 11:33:22am, an enquiry was received about the delay in the arrival of the ambulance, and that at 11:33:37am, it was recorded that during that call, the ambulance had arrived: Exhibit "5", Tab 1, p 12.
It could be that the arrival time of the ambulance was incorrectly recorded, or that there was a discrepancy in the calibration of the timing devices at the ambulance headquarters where the calls were logged, compared to the calibration of the timing device in the ambulance itself, where the arrival time was recorded. The issue was not explored in the evidence, including the issue of the manner in which such details were recorded. It therefore remains an unresolved curiosity.
Fifthly, the first segment of the ambulance records shows that the ambulance remained at the scene for about 5 minutes, and it then departed the scene at 11:38.40am, arriving at Lismore Hospital, some 65kms away, 33 minutes later, at 12:12:40pm, (or 12.17pm as stated by Mr Hartley at T81.6), triage having occurred at 12.25pm, and handover then appeared to have been completed about 33 minutes later, at either 12.40pm or 12:45:54pm: Exhibit "5", Tab 1, p 12, and also at p 2.
The second segment of the ambulance material comprising the consolidated record, which sets out the case history portion of that record, identifies the nature and description of the case as follows: [Exhibit "5", Tab 1, p 2]
That description indicates the plaintiff was orientated in place and time at some stage when Mr Hartley had attended to him, but beforehand, there had been a query over a period of what was described as decreased or lost consciousness. I infer from the content of that description, that the notes were either written well into the journey to hospital, or that they were written after the plaintiff had arrived at hospital. Otherwise the "en route" comment in the case summary notes would have had no relevance. I draw that inference from the terms of the note which describes the stability status of the plaintiff en route. In my view, it is more likely to be either an after the event summary, or a summary that was noted well into the journey to hospital.
A question arises as to the source for the information recorded in the ambulance case summary, which states that the plaintiff fell from his bicycle after hitting a pothole, as cited in paragraph [74] above. Mr Hartley specifically denied that the plaintiff had told him he had hit a pothole. Mr Hartley said the plaintiff had told him he had fallen from his bike: T82.47. Neither the plaintiff nor any of the witnesses gave such an account. This suggests an element of assumption or inaccuracy has been incorporated into the ambulance records. According to Mr Hartley, whom I accept on this point, at the outset of his contact with the plaintiff, he said the plaintiff was confused as to how he had fallen from his bicycle: T81.16.
Accordingly, the possible explanations for the note to the effect the plaintiff had struck a pothole are either that the note was based on an admission made by the plaintiff, or that the author of the summary note had made an assumption or had drawn a conclusion to that effect from the described circumstances that were evident at the accident scene, including the apparent absence of any evidence of another vehicle being involved in the incident. In view of Mr Hartley's evidence at T82.47, I consider it unlikely that the source of the account in the ambulance records of the plaintiff striking a pothole came from the plaintiff himself at that time. In my view, given the plaintiff's described state of incoherence, I also consider it was unlikely that it came from him, having regard to Mr Hartley's specific evidence on that point.
There is little doubt that the accident caused the plaintiff to suffer significant pain. A question arises as to why there was no record made of the ambulance personnel giving the plaintiff any analgesic medications en route to the hospital. There is little doubt the ambulance paramedics would have had such medication available to give to the plaintiff if it was indicated. Whilst it is possible such medication was withheld due to the plaintiff's head injury so as not to interfere with his consciousness before a medical assessment was undertaken, no definite conclusions can be drawn in the circumstances. The absence of any record of administration of analgesia by ambulance personnel precludes the drawing of inferences that the plaintiff's state of alertness and ability to coherently and accurately communicate was in any way affected by painkilling medication whilst he was in the care of the ambulance paramedics. However, that does not exclude the inference that the plaintiff remained significantly affected by pain: T87.31 - T87.42; Exhibit "5", Tab 1, p 5. The nature of his injuries, the evidence of Mrs Cordin, the ambulance records and the hospital records indicate that he was in significant pain. I consider this would have been somewhat distracting for the plaintiff, and it would have very likely affected his communications.
The third segment of the ambulance records, which relate to the evening helicopter transfer of the plaintiff to Brisbane, throws no light on the liability issues.
The questions in the preceding paragraphs will be taken up after the evaluation of the evidence of Mr Hartley, and after a review of the medical records.

[14]

Mr Hartley's evidence

Mr Hartley was an ambulance paramedic specialist with some 28 years of experience. He had attended the accident scene to assist the plaintiff and in order to transport him to Lismore Hospital. Mr Hartley had been accompanied by another ambulance officer who was not called to give evidence: T75.6 - T75.36.
Mr Hartley gave his evidence some 3 years after the event, having refreshed his memory some months before the hearing, from a copy of the handwritten case slip notes which he had written at the time he attended to the plaintiff: T75.25 - T75.49. Those notes were no longer available to him when he gave his evidence: T76.4.
I consider that Mr Hartley's evidence on matters that touch upon the liability issues requires careful evaluation before acceptance because that evidence was understandably based upon a refreshed memory in circumstances where, in the ordinary course of events, he would not be expected to have had a detailed recollection of the events in question by reason of the nature of his work, and because of the many professional attendances he would have experienced when tending to the needs of other patients at the scenes of various accidents and emergencies in the course of his work over the past 3 years.
The only notes that Mr Hartley had available to him at the hearing comprised typed ambulance records that had been transcribed into an electronic medical record, or "put into type form on some unknown date" by someone else: T76.13 - T76.23. This too was a sufficient reason to evaluate his account of events with due care, as it was based upon a memory that had been refreshed from those materials. The need for such caution also arises because those notes contained an historical account of the front wheel of the bicycle having hit a pothole, which he had in that respect, specifically disavowed: T82.47.
The typed ambulance documents from which Mr Hartley gave his evidence were tendered: Exhibit "5", Tab 1, pp 1 - 6. Mr Hartley's explanation of events based on those records, appears in the following paragraphs.
Mr Hartley stated that from the records, it appears that his ambulance had been despatched and was en route at 11.04am, and that it was at the scene at 11.32am: T78.3. He described having had a general practice or system when attending accidents of this nature: T78.16. I gained the impression that the implementation of that general practice or system was not a rigid or invariable practice, but instead, was adaptable as he said, and depended upon accommodating the variable circumstances that would be seen at any given accident scene: T78.21.
Mr Hartley made no inquiries as to who owned the vehicle that he had seen at the accident scene, nor did he recall any details of who else was at the scene, nor did he make any observations in relation to the gender of those persons: T79.31 - T79.39.
Mr Hartley explained this as follows: "Q. This is an accident that occurred on the road, and when you get there, is it part of your protocol to ask how an accident might have occurred? A. Our initial response is to the patient, see what patients we have and what has been involved, and yes, if it has been a car accident or a motor bike accident, what else has been involved, and then we organise if it is two patients or just one patient." [T78.23 - T78.28]
In my view, it appears that Mr Hartley may well have inferred from the absence of any evidence available to him of the involvement of a motor vehicle in the plaintiff's accident, that no such vehicular involvement had occurred.
Mr Hartley went on to state; "Q. When you arrived at the scene, what did you see? A. There was a male patient, had blood all over his face, mud, covered in mud, and he was in the back of a ute if I can remember correctly, and he was the first person I went to. Q. Did you have a conversation with him? A. Yes I did. Q. When you had this conversation with him, did you follow some system that you had adopted, what did you do? A. I questioned the patient on what happened, what he remembered, trying to get details of his memory and actually it is a protocol that we -- a procedure that we follow and with experience you adapt it to what you see and what you do. It varies to different process. Q. What injuries did he appear to have? A. He had a head injury, he had a laceration to his face, he had his bike helmet that was already off. He was just covered in mud and the idea was to get him like so we could actually clean him up and have a look at him at the time. Q. Did you ask him what had happened? A. Yes I did. Q. Do you recall what he said? A. He said he fell off his bike. Q. Don't answer this question by saying anything other than yes or no, was there any conversation with other persons at the scene that you had? A. Not that I had, no." [T79.1 - T79.30]
In my view, that latter evidence would very likely have served to lead Mr Hartley to assume that there was no vehicular involvement in the plaintiff's accident, especially as no-one else at the scene had knowledge of the involvement of a motor vehicle.
In giving that evidence to the effect that the plaintiff had fallen from his bicycle, Mr Hartley did not qualify it, or refer to any state of disorientation, incoherence or confusion on the part of the plaintiff, or of the plaintiff not making conversation, as was variously described by Mr Bessabava and Mr Marshall, whose evidence was unchallenged, and which I accept. This raises a question as to the accuracy or reliability of the process by which Mr Hartley obtained information from the plaintiff at the scene or en route to hospital.
Mr Hartley interpreted some of the abbreviations used in the ambulance records. He identified the plaintiff as the source of the information and the history he obtained, which included the plaintiff's past medical history of a previous jaw replacement 10 months earlier, and of a subsequent MRSA infection: T79.41 - T80.15. That item of evidence requires careful evaluation in light of an earlier described entry in the ambulance records as identified at paragraph [68] above, which raises a doubt as to whether it was in fact the plaintiff who provided those details of his earlier medical history.
Mr Hartley could not initially remember whether at the scene he had noticed anything about the plaintiff's helmet, but then, on viewing the notes, he stated that he had looked at the helmet because it was part of his examination of the plaintiff's face for the purpose of identification of his injuries: T81.16. He identified the time of arrival of the ambulance at Lismore Hospital as being 12.17pm: T81.7.
Mr Hartley recorded his observation of the plaintiff's vital signs, noting that the plaintiff appeared calm and quiet, and that his breath sounds were clear: T80.40. At 11.40am, he recorded the plaintiff's Glasgow Coma Score (GCS) at 15, and noted that on three occasions, the plaintiff's speech was clear and continuous: T81.10. The context, use and relative meaning of those terms requires evaluation in light of other entries in the ambulance records tendered.
Mr Hartley was asked some hypothetical questions as to what might have been the case if the plaintiff's speech had not been clear and continuous, and if there had been any mention of the involvement of a motor vehicle in the subject accident: "Q. What if his speech was not clear and continuous, what would that indicate to you as an ambulance officer? A. It would probably have had a serious head injury but, at the start, he was a little bit confused at the -- when I first spoke to him about how he did it, how he fell off, did he remember anything but he said he fell off his bike as I have stated. The rest of the reviews have been done during the car, like the constant talking, he didn't repeat questions, he didn't ask me to go over something again, it was just, it applied to anything I asked him, as I said, his eyes were spontaneous, he was aware of place and time, and he obeyed commands. If I ever asked him a question, he answered it. Q. If, this is a hypothetical question to you, if a patient was found on the roadway injured and he said to you that he had been struck by a motor vehicle, what responses would you make to that situation? A. That becomes a different situation for us because then we are looking at two patients, so I would treat the one patient, that patient there, and my partner would then go looking for the driver of the car. Q. If you couldn't find the driver of the car, if there was nobody there, assuming it is a country road? A. There was people around and, as I said, I don't recall at all, anyone saying anything about a car being involved. Q. I am asking you about a hypothetical situation, not the actual one. If a person said, "I was struck by a car", what steps do you take, if you can't find the driver of that car at all to do an interview or talk to him? A. The only steps that I would be taking would be that the police would be asked for -- to attend the location with us, but my treatment of the patient would remain the same." [T81.13 - T81.41]
Mr Hartley's evidence at T81.15 as cited in the previous paragraph was of some relevance because the plaintiff did have a serious head injury, as was later confirmed at the Princess Alexandra Hospital. His evidence, at T81.16, suggests that the plaintiff's state of confusion at the time of Mr Hartley's first contact with him may have impeded the reliability of any information obtained from him by Mr Hartley.
Mr Hartley was asked to explain the GCS of 15 as referred to in the notes. He did so in the following terms: "A. The Glasgow coma score is relating to the patient's level of consciousness. His eyes, his eyes always are spontaneous, they were open at all times he spoke to me, they were never -- I didn't have to shout, stir him up or do any painful stimuli to make him open his eyes. His verbal response, he was orientated, he was orientated to place and time, he knew where he was, told me what had happened, that he had come off his bike. He told me about his medical history, that he had had a jaw replacement in Gold Coast Hospital. He obeyed commands and when I asked him to do things, he responded in the appropriate manner. Q. Just one question about page 2, you see past history there, you have written or it is written in this form, "Left side, a jaw replacement"? A. Yes. Q. Was this section of your pursuit of information one that followed the examination of the patient? A. Yes. Q. This is, in effect, set out in a different order to what you A. This is my first line of treatment is to the patient, to find his injuries, sorted it out, once we get him into the car and then we are dealing with it, we then asked the past history of epilepsy, diabetes, and all that and he informed me that he had a left sided jaw replacement, he was on Sinumax and that he wasn't allergic to anything. The risk factors is basically at the bottom and that relates to diabetes, cardiac issues, hypertension and other diseases." [T81.47 - T82.21]
The impression I gained from Mr Hartley's evidence at T81/T82 in which he said the plaintiff "had come off his bike" was that this account was a short form of explanation, which, in view of the plaintiff's state, did not appear to involve the products of an in depth questioning as to how this had occurred. In considering Mr Hartley's evidence at T82.14, no evidence was called to equate the plaintiff's level of consciousness with the appropriate functioning of his mental and communication faculties. In those circumstances I consider that the evidence of Mr Hartley to the effect that the plaintiff was appropriately obeying commands does not provide a useful insight into the plaintiff's mental functioning.
Mr Hartley's last dealing with the plaintiff was when he handed over the plaintiff's care to the nursing staff at Lismore Hospital, at which time he said that he would have told those persons who were taking over the care of the plaintiff that the mechanism of the accident was that "he has fallen off his push bike": T82.40.
When the version of events of the incident to the effect the plaintiff had fallen from his bicycle was further explored in cross-examination, Mr Hartley did not add any further detail of that conversation with the plaintiff other than "he told me he fell off his bike": T82.47.
I accept that Mr Hartley did his best to recount the facts as he understood them based on an aided memory that had been refreshed from the transcribed and typed ambulance records in circumstances where the original notes which had based those records were no longer available.

[15]

Lismore Hospital records

The defendant tendered extracts from the Lismore Hospital records: Exhibit "5", Tab 2, pp 14 - 23. I infer from the content of those materials, that what was tendered does not represent the complete record of the plaintiff's stay at Lismore Hospital. In my view, the content of the first report of Mr Griffiths confirms that conclusion. By way of further example, there is no record of any medication chart evidencing that painkilling or other medications were administered to the plaintiff, and whether any of those medications would have affected his level of consciousness, or his ability to reliably focus upon and communicate important information.
Such medications had undoubtedly been given to the plaintiff at Lismore Hospital, as it appears that the plaintiff was referred to the surgical team for surgical washout and debridement of his facial wound in the operating theatre (Exhibit "5", Tab 2, pp 15 - 16) and the only record of medications having been given were the narrative descriptions of intravenous administration of analgesia, antibiotics and tetanus prophylaxis: Exhibit "5", Tab 2, p 16. Any medication charts recording what was given, in what dosages, at what times, and with what effect, were notably absent.
In my view, the incomplete nature of the evidence comprising the Lismore Hospital records necessarily limits the scope for the drawing of reliable inferences from those records as to the detail of the content of conversations between the plaintiff and hospital staff concerning the details of, or the mechanism of, the accident, and the reliability of that information.
The triage notes of the Lismore Hospital contain the following entry: [Exhibit "5", Tab 2, p 17]
The nursing notes of the Lismore Hospital contain the following entry: [Exhibit "5", Tab 2, p 16]
At 17:30hrs on 2 September 2012, the orthopaedic consultant at Lismore Hospital made a handwritten entry in the plaintiff's progress / clinical notes stating: "Fall from pushbike dirty road struck pothole found unconscious …": Exhibit "5", Tab 2, p 19.
The sequence of that note suggests that the plaintiff had struck a pothole with his head after he had fallen from his bicycle.
At the same time on 17 September 2012, the senior orthopaedic resident medical officer at Lismore Hospital made a note that stated: "Pushbike trauma": Exhibit "5", Tab 2, p 20.
Subsequently, at an unstated time on the same date, following a general surgical consultation, the following note was made by the consultant at Lismore Hospital: [Exhibit "5", Tab 2, p 21]
An extract of the general medical notes from Lismore Hospital, which contains some obliteration of text, apparently due to hole punching of the document, is reproduced as follows: [Exhibit "5", Tab 2, p 14]
A subsequent entry in the Lismore Hospital notes on 6 December 2013 makes reference to a previous pushbike accident in September 2012, which is an obvious reference to the subject accident: Exhibit "5", Tab 2, p 23.

[17]

Princess Alexandra Hospital records

The defendant also tendered extracts from the records of the Princess Alexandra Hospital: Exhibit "5", Tab 3, pp 24 - 26. As was the case with the Lismore Hospital notes, copies of the medication charts were not included in the exhibit. Furthermore, the medical notes referred to in the retrieval notes (as distinct from the discharge referral letter from Lismore Hospital at Exhibit "5", Tab 3, p 25) were not copied into the exhibit.
In view of the defendant's credit attack on the plaintiff as to what histories the plaintiff had given to hospital staff as to the details of the occurrence of the accident, fairness requires that those histories be reviewed in their entirety, and not just limited to those which the defendant chose to bring into focus during cross-examination of the plaintiff. That consideration is not entirely possible due to the selective tender of portions of the notes as found in the exhibit.
The various summaries of the histories which followed the multiple examinations of the plaintiff at Princess Alexandra Hospital that are the subject of evidence, are logged and summarised in the chronological sequence appearing in the records, as follows: 1. At 10.15(pm) on 2 September 2012, an emergency department doctor, Dr Udeni Welgama, undertook a trauma assessment of the plaintiff. Having heard Dr Welgama's oral evidence, in which he stated that he wrote up his notes after the event, it appears that he may have examined the plaintiff after 10.15pm. This raises the possibility that the plaintiff was seen by the triage nurse first, notwithstanding Dr Welgama's note. This is not entirely clear: Exhibit "5", Tab 3, pp 29 - 30. Dr Welgama's notes of the incident state the plaintiff had a "mountain bike accident" in which the plaintiff "went over the handlebars". His notes were concerned with surveying the plaintiff's medical problems requiring management and treatment rather than investigating the precise means by which the injuries occurred, as would be the focus of a liability investigation. Dr Welgama's notes stated that on his primary survey, the plaintiff was speaking full sentences. However, the notes do not state whether he was coherent in speaking those sentences, or whether the content of those sentences was appropriate to the circumstances: Exhibit "5", Tab 3, p 30; 2. At 22:18hrs on 2 September 2012, a triage nurse noted the plaintiff's presenting problem as being a "fall off bicycle onto ground" with compression fractures to T7, T8, T9; a queried central cord compression; a queried closed head injury, facial swelling, a facial and head laceration, swelling and bruising to both wrists and forearms, and hyperparasthesia: Exhibit "5", Tab 3, p 27. Whilst it would seem to be more logical that the plaintiff was first seen by the triage nurse, that may not have been so in this instance because the receiving hospital would have had advance notice of the nature of the plaintiff's condition, and his medical needs as a result of prior inter-hospital communications; 3. At 22:18hrs on 2 September 2012, an emergency department doctor, Dr Stephen Torbey, noted the following: [Exhibit "5", Tab 3, p 26] 1. At 22:30hrs on 2 September 2012, an Emergency Department resuscitation flow chart was partly completed. In that document, the accident was described as involving a "fall over handlebars of mountain bike LOC unknown period of time". It was noted the plaintiff was being treated by laying flat, and was given cephazolin 2g, fentanyl 300mcg, 10mg morphine, ADT, 4mg ondansaton and 1g paracetamol. The commencement and the duration times of the administration of those drugs was not described in the form of a medication chart showing the prescriptions, the authorisations and the administration times of those drugs: Exhibit "5", Tab 3, p 28; 2. At 01:22hrs on 3 September 2012, Dr Welgama made the following notes: [Exhibit "5", Tab 3, p 26] 1. At 01:30hrs on 3 September 2012, the plaintiff underwent an examination by Dr Lando, an orthopaedics registrar. This was because of concerns held about a spinal injury. Either Dr Lando, or the spinal consultant, Dr Cheung, made the note: "mountain bike accident at 12:00 today fell over handlebars + axial loading on helmet, ? LOC …": Exhibit "5", Tab 3, p 31. Although at that time a spinal cord injury was thought to be unlikely, the treatment plan was to admit the plaintiff, to pursue further imaging, to continue a nil by mouth regime, presumably in anticipation of a possible need for surgery or anaesthesia, and in the meantime, to provide intravenous fluids: Exhibit "5", Tab 3, p 32. There was no fluid balance chart included in the notes documenting that process; 2. At 02:50hrs on 3 September 2012, the plaintiff underwent a general surgical review of the injuries to his face and abdomen. At that time, the details of the accident were summarised as "mountain bike accident 12pm today … was riding mountain bike fell over handlebars & onto head [symbol for with] axial loading on helmet ? LOC" : Exhibit "5", Tab 3, p 33. 3. At 07:30hrs on 3 September 2012, the plaintiff was examined by a registrar and some resident medical officers. The only reference to the cause of the injuries under review was the short form of note stating "- Fall from Lismore": Exhibit "5", Tab 3, p 34; 4. At an unstated time after 07:30hrs on 3 September 2012, the plaintiff underwent a plastic surgery review, following which it was planned to operate upon him to repair his facial laceration. At that review, the details of the accident were summarised as "mountain bike accident 2/9/12 … was riding mountain bike yesterday - → hit pothole & went over handlebars hit head, LOC …". At that time, the plaintiff had remained "NBN" or nil by mouth in anticipation of surgery being carried out on his wound: Exhibit "5", Tab 3, pp 34 - 36; 5. At an unstated time on 3 September 2012, Mrs Cordin signed a patient election form on behalf of the plaintiff, the purpose of which was to consent to the plaintiff being treated as a public patient by doctors assigned by the hospital. The defendant relied upon a ticked box on that form, the effect of which represented that the injury the subject of the hospital admission did not arise out of a motor vehicle accident: Exhibit "5", Tab 3, p 37; 6. At 15:20hrs on 4 September 2012, a hospital occupational therapist saw the plaintiff and noted the history of a "fall from a mountain bike". In the clinical setting there were apparent concerns expressed about the plaintiff's cognitive functioning. In my view, although such problems appear to have been recognised relatively late in the post-accident period, I consider it is more likely that such problems with the plaintiff's cognitive functioning would have been present immediately following the accident. In that context, with specific reference to the plaintiff's recollection of the accident, it was noted that he had an intact anterograde memory, and some retrograde amnesia, in which his first memory after the accident was recorded as "being in passerby's car & then QAS trip to hospital". At that time the plan was to test the plaintiff's memory functioning at a different level of testing on the following day: Exhibit "5", Tab 3, pp 38 - 39. I infer from the context of that reference in the notes to QAS that it referred to the Queensland Ambulance Service; 7. At 21:20hrs on 4 September 2012, the notes indicate the plaintiff was seen by nursing staff, and he was given the drug Endone for pain relief whilst awaiting surgery: Exhibit "5", Tab 3, p 39. There was no corresponding medication chart documenting the administration of that drug; 8. At 03:30hrs on 5 September 2012, it was noted that an hour earlier, the plaintiff had expressed some agitation about when he would be going to the operating theatre for treatment of his injuries. It appears that his operation scheduled for 17:00hrs that day had been cancelled: Exhibit "5", Tab 3, p 39; 9. At an unstated time on 6 September 2012, the plaintiff was reviewed by the plastics team, at which time it was again noted he had been involved in a "mountain bike accident". That review was after the plaintiff's forehead wound had been repaired. At that time, a further review of the plaintiff's condition was scheduled one week later: Exhibit "5", Tab 3, p 40. It appears the repair was carried out in the operating theatre at 11:22hrs on 6 September 2012: Exhibit "5", Tab 3, p 44; 10. At 18:35hrs on 6 September 2012, it was noted that the plaintiff had been reviewed by the orthopaedic resident, who scheduled a further review for the next day. At this time there were no further entries made concerning the mechanism of the accident: Exhibit "5", Tab 3, p 40; 11. At an unstated time on 6 September 2012, an internal hospital imaging request form was prepared which simply re-iterated the clinical history "fell off mountain bike": Exhibit "5", Tab 3, p 41; 12. At an unstated time on 7 September 2012, the plaintiff underwent a driver assessment test by a hospital occupational therapist, at which time the indication for the process was stated to be "mountain bike accident → LOC at scene, cognitive deficits noted on screening…". At that time, it was also noted that the plaintiff's impairments included problems with reduced mental control, memory, orientation, and reduced attention: Exhibit "5", Tab 3, pp 42 - 43; 13. On 7 September 2012, a hospital discharge summary was prepared, stating amongst other medical details, that the plaintiff had been admitted for a "Mountain bike accident with T spine fracture". Whilst that form referred to available information fields to be completed for medications at admission, at discharge, and when medications were ceased, those fields were ambiguously completed with the words "Nil Entered": Exhibit "5", Tab 3, pp 44 - 48; 14. On 7 September 2012, the plaintiff was referred to the Brain Injury Rehabilitation Service run by Queensland Health with a history of "Recent Mountain Bike Injury" and a request for review of "ongoing cognitive difficulties impacting on goals for return to driving & return to work in the future": Exhibit "5", Tab 3, pp 49 - 50; 15. On 16 October 2012, the plaintiff was reviewed as a hospital outpatient, at which time the context of that review was noted to be "post mountain-bike accident": Exhibit "5", Tab 3, pp 51 - 52; 16. On 14 November 2012, the orthopaedic unit of the hospital prepared a report at the request of the plaintiff's solicitor, in which the mechanism of the accident was stated as being: "He states that he fell from a pushbike approximately at noon on 2 September 2012". At that time, it was stated that the plaintiff's acute pain would be expected to settle down within the first 4-6 weeks: Exhibit "5", Tab 3, pp 53 - 54. That note is of some interest to the process of interpreting the manner in which such notes are compiled because, by 14 November 2012, the plaintiff had already given a statement to the police on 23 October 2012 indicating his belief that he had been struck by a motor vehicle: Exhibit "F", par 14. Plainly, he had not changed his mind on that topic by 14 November 2012, which was just 3 weeks later. This tends to suggest the cited note is based on a short summary of other notes, notwithstanding the introductory words: "He states"; 17. On 4 December 2012, the plaintiff underwent an orthopaedic review, at which time the mechanics of the accident were described as "pushbike vs car from behind": Exhibit "5", Tab 3, pp 55 - 56.
The significance of the foregoing matters to the analysis of the credibility of the plaintiff's testimony requires detailed consideration that will be addressed later in these reasons after the entire range of factual evidence and the opinion evidence has been reviewed. That factual evidence comprises the evidence of the plaintiff, the evidence of Dr Welgama and Dr Lando, the evidence of Mrs Cordin that related to post-accident events and investigations, material from Lismore Council, the police records and investigations, the evidence of Constable Antequil, and a consideration of documentary evidence, including the factual observations made by the respective accident reconstruction experts.

[19]

Dr Welgama's evidence

Dr Welgama's evidence was called on the third day of the hearing. Dr Welgama explained aspects of the plaintiff's admission to the Princess Alexandra Hospital. When the plaintiff was admitted to that hospital, Dr Welgama was a senior registrar on duty in the Accident and Emergency Department where the plaintiff had been "transiently parked" on his arrival at the hospital: T184.10 - T184.21. That description suggests the plaintiff was first triaged. It would have been unlikely, given the head and spinal injuries, that he would have been "parked" in that manner if he had not first been triaged to ascertain his condition on arrival.
At the time he gave his evidence, Dr Welgama, who is now a specialist in Emergency Medicine, had only a feint and remote memory of the plaintiff's admission. In the interim period, he has seen several hundred patients in the course of his work as an emergency doctor. Understandably, he had no independent recollection of the plaintiff's admission, and he gave his evidence based upon a portion of the notes that had been sent to him by email to aid the process of him giving evidence: T184.44 - T186.24. Dr Welgama candidly stated that on the evening of the transfer, he had only seen the plaintiff for a very brief time in order to medically assess him: T191.45.
When Dr Welgama gave his evidence he had before him a copy of a handwritten Trauma Assessment sheet which he had completed on the night in question: Exhibit "5", Tab 3, pp 29 - 30.
Dr Welgama's evidence was given by telephone in unusual circumstances. It appeared his premises had been burgled several days earlier, and whilst he was giving his evidence by telephone, police had arrived at his home in order to interview him. Whilst he was giving his evidence he was in the process of searching his computer for documents relating to the present case: T186.44 - T187.28. It appears that copies of those documents had been emailed to him by the hospital for that purpose.
On the evening in question, Dr Welgama had been assigned to work in two resuscitation bays within the emergency department under the supervision of the consultant in charge, and in the course of those events, he said he had examined the plaintiff to obtain the plaintiff's [hi]story afresh. To do so, he undertook both a primary and a secondary survey of the plaintiff's condition so as to ensure nothing of relevance had been missed at Lismore Hospital: T188.15 - T188.39. By the time he undertook his examination, he would have had before him the history from Lismore of the plaintiff having come off his bicycle.
In the course of those events, Dr Welgama stated that whilst he was examining him, the plaintiff would have been kept in a restrained position due to his spinal injury, and in such situations only essential questions would have been asked of him out of respect for his situation, given that most questions had already been asked by others: T188.45 - T189.6.
Unfortunately, some of Dr Welgama's evidence in chief that might have clarified such matters was interrupted by senior counsel for the defendant interposing another question before the answer that Dr Welgama was in the course of articulating, could be completed: T189.6.
The portion of evidence was as follows: "Q. What did that prompt you to do, and ask? A. This patient was actually -- this patient had definite spine cord injury so therefore such patients are being restrained to bed usually to minimise their mobility in order to prevent further damage so therefore they're not in the optimal position to freely give us a story as patients who are sitting down, so therefore usually ask them very essential questions not to trouble them because I may the 20th person asking the same story of a critically ill patient who was lying on a bed restrained and restricted with movement for a number of hours with significant pain, so therefore I think we do have some respect to their emotional status, so therefore we ask only essential questions, most of the other questions are being asked by the other teams and primary care givers when they come to the centres, however -- Q. Doctor, we're going to run out of time, what I want to ask you specifically if you go to the document headed details of incident, it starts of 54 year old male, is that right? A. Yes. Q. Who elicited this information from the patient? A. Yes. Q. Did you do that? A. Yes. Q. What question would you have asked him? A. So the usually routinely we ask very open questions, what happened to you? Q. What answer did you get to that question? A. So he answered me "I fell off my mountain bike," that's why I have written mountain bike accident. Q. Did at any stage did he mention that he'd been struck by a motor vehicle? A. He hasn't provided that information to me, if he had provided that information I would have definitely documented that because that is really very important information. Q. Over the page there's a primary survey, there is a summary of injuries, does that come before the primary survey or afterwards? A. It would -- primary survey is ..(not transcribable).. so whether you're breathing on your own, and your lungs, whether your lungs getting enough air, plus either your heart is functioning okay and your blood pressure, yeah that is of primary survey, and whether they're having massively gushing bleeding wounds, so that is our primary survey, when we finish our primary survey in a couple of minutes and then they will do a thorough secondary survey, so that is called head to toe examination. In head to toe examination we give -- after excluding life threatening injuries we examine head to toe to find out all the other small and minor injuries, so that is my secondary survey documentation is other injuries I found. However in summary we summarise everything, primary survey, secondary survey findings." [T188.45 - T189.44] [Emphasis added]
I consider that it was plain from Dr Welgama's evidence, including the fact of his limited recollection of the plaintiff, that he was reconstructing events from his summary notes of his initial interaction with the plaintiff, and from his understanding of the usual practice he adopted in his work surveying patients in the emergency department: T189.20 - T191.26.
I infer that to be so by the reference in Dr Welgama's evidence to the effect that he had a usual "practice" (T188.12), that he had a very limited recollection of the plaintiff (T184.44), that he used terms such as "usually routinely we ask very open questions" (T189.20), the fact that his notes were "in summary" form (T189.43), and because he qualified his answer to the question of whether the plaintiff appeared to understand his questions and gave appropriate answers by the expression "according to my documentation": T190.34.
Dr Welgama was asked a specific question as to where he had obtained the history that in the accident the plaintiff had gone over the handlebars and had hit his head. In answer to that question, Dr Welgama stated that he had obtained that information from the plaintiff: T191.26.
Dr Welgama stated that when he wrote out his notes on the hospital trauma assessment form, he did not follow (by which I infer he meant use or refer to) the discharge summary that accompanied the plaintiff from Lismore Hospital: T192.13 - T192.33. In my view, there is doubt about the correctness of that account, given the content of a passage of his evidence to which I shall shortly refer: T193.27.
When Dr Welgama was cross-examined, he agreed that the Princess Alexandra Hospital trauma unit was very busy on the night of the plaintiff's admission, but he also stated that the system there was robust, and that he was able to cope with the work. He also stated that "usually", at least an hour was spent with the patient in pursuing the routine required to complete the history and the examination of the patient: T192.40 - T193.4. It is not clear whether the practice that was "usually" followed was in fact followed on that occasion.
In the course of the cross-examination of Dr Welgama, a question was explored as to how the handover of the care of the plaintiff was achieved. That evidence, which was plainly based on usual practice rather than an actual recollection by Dr Welgama, was as follows: "Q. Is it fair to say that the history that you obtained from the patient was obtained very quickly? A. No, usually when you come to the trauma assessment we do spend at least one hour with these patients in order to complete our history and examination that is our routine practice. Q. But before you started had you been given the notes from the paramedics? A. Look usually these -- what happen, to give the picture what happened to these transfers the transfer information is very, very important and valuable information to us. They come with the accompanying doctor and so the paramedics and accompanying doctors and then once they come to the department we offload them from the ambulance stretcher to the emergency department bed and once we offload them one of the junior doctors will take care of the patient and the senior doctor will listen to the handover. When that handover, is a verbal handover, and the documentary handover, so verbal handover they tell the story very briefly what exactly happened and what history has been taken, what examination findings are there, and what investigations there has been done, and then what need to be done. So then they will hand over all the reports and the clinical notes to us, what has been going on with this patient from the beginning up to that transfer, transport point. Q. Is it usual for you to read those documents before you do your own assessment of the patient? A. It depends on how critically ill the patients are. If a patient is fairly stable we do read that, if the patient is unstable we see the patient straight away. Q. I understand that and this particular patient, Michael Cordin, was he stable enough for you to read those documents? A. The -- according to the information I have written over there he was stable, yes. Q. Do you think it's probable that you had an opportunity to read the paramedics and the history from Lismore hospital? A. I may have had an opportunity but I cannot recall that perfectly because it's nearly three years ago now. Q. Was Mr Cordin medicated at the time you saw him, was he? A. Yes he was, he was given medications. Q. What for? A. He was given medications for infections, he was given medication for tetanus, and he was given medication for pain. Q. The history that you obtained was that relevant to finding out what happened to cause his injuries? A. Yes. Q. What's written there are details of incident, do you say apart from the suspected central cord syndrome which you got from the Lismore notes that he told you everything else there? A. Yes, because usually whatever I have written there must -- came from the patient because otherwise I would have written "suspected" or "assume" or "presume" or I have used some wording in order to highlight that rather than I'm just making it out. Q. Did he say to you that he went over the handlebars and landed onto his head and face with significant axial load? A. No. So the axial load that is how I interpret the -- when a person went onto the -- went on handlebars and landed onto the head that is what happened, so that is my interpretation of that. Q. It was quite obvious that he landed on his head and his face, wasn't it? A. Yes. Q. Did you have any notes from the triage people when he was admitted first to Princess Alexandra? A. No, I don't. Q. Did you have them on that night? A. Look I -- any patient come to emergency department there's a process that we follow. Triage nurses come and take their history and write on the triage notes, and then we write our medical notes, and then any allied health teams whom we are physios, occupational therapist, or any other allied help for speciality who comes and sees the patient and write their own notes, so finally every -- all the notes -- all the patients records as a combination, that's what happens normally. Q. Was it likely that you had in your possession at the time you were assessing Mr Cordin that you had those documents from his earlier examinations? A. Earlier examination I may have had, yes. HIS HONOUR Q. Those documents have included a retrieval record from the ambulance service? A. Yes." [T192.50 - T194.36].
Whilst it is not entirely clear from the evidence, it seems that Dr Welgama saw the plaintiff very soon after the plaintiff's arrival, which Dr Welgama thought was 10.15pm (T195.12 - T195.19) and it was only a little later that the plaintiff was registered as a patient in the hospital records keeping system (T195.41).
Dr Welgama made some typed entries in the electronic version of the Clinical Notes at 01:22hrs on 3 September 2012: Exhibit "5", Tab 3, p 26.
A review of that document shows that it is a composite record where it was stated that the primary diagnosis of the plaintiff was fracture of the thoracic spine. The reference in the document to "Time Seen 22:18" seemed to relate to Dr Torbey, and not to Dr Welgama.
Because of concerns about parts of Dr Welgama's evidence relating to the basis of his conversations with the plaintiff on how the accident occurred, that evidence must be evaluated on account of several factors. One factor is that the principal purpose of those interactions was the medical assessment of the plaintiff for determining the appropriate management plan. Another factor was the likelihood of Dr Welgama having followed the usual practice he described in his evidence, given the scope for variations from usual practice, and because ascertaining an understanding of the cause of the plaintiff's injuries was a secondary consideration by the time he saw the plaintiff as, by then the plaintiff had been stabilised.
Specifically, the matter at issue is the non-inclusion in the history of any mention of a motor vehicle.
The required evaluation in that regard focusses upon Dr Welgama's evidence to which emphasis has been added at paragraph [133] above.
I consider that diminished weight should be placed on that passage of evidence because of the leading nature of the questions that elicited the recorded responses. I take that view notwithstanding that no objection had been taken to leading questions being asked on that crucial matter.
In terms of relative significance, the leading questions as to whether it was Dr Welgama who had elicited the recorded information from the plaintiff was perhaps innocuous in the sense that it could be regarded as a convenient introductory question: T189.16 - T189.21.
The next question, at T189.19, was based on acceptance of the proposition that Dr Welgama was giving his evidence based on considerations of usual professional practice rather than an actual recollection. This is apparent from the phrasing of the question in terms of what Dr Welgama "would have asked" rather than what he had actually asked the plaintiff in the described circumstances. A question along those lines was entirely appropriate given that Dr Welgama did not have an independent recollection of the plaintiff's admission, and had only a very feint and remote memory of the plaintiff (T184.43 - T184.49) and had only seen the plaintiff for a very brief time: T191.45.
This analysis should in no way be read as a criticism of Dr Welgama.
When Dr Welgama addressed the question of what he would have asked the plaintiff in the circumstances, his answer properly remained within the hypothetical context of the usual or routine practice of asking very open questions of an injured person as to how the injury had occurred: T189.19.
The next leading question had within it the implicit assumption that usual practice had been followed, by asking what answer had been given to "that question", being "what happened to you": T189.20.
At this point, in my view, the conceptual shift from the hypothetical plane to the particular facts via the invitation to do so by means of a leading question adversely affects the probative value of the ensuing answers: T189.15 - T189.25.
Without intending any criticism of Dr Welgama, his focus at the time would have been an assessing and treating the plaintiff rather than exploring the possibility that impact from a motor vehicle may have caused the plaintiff to fall from his bicycle after having ascertained that the plaintiff's injuries followed that fall. It was already plain the plaintiff had hit his head through the mechanism of axial loading.
In the circumstances of the leading questions asked of Dr Welgama, and his responses, which were founded upon considerations of usual practice rather than on actual recollection, I am not satisfied that the interchanges between Dr Welgama and the plaintiff on 2 September 2012, as summarised by Dr Welgama in his evidence, which was based on his notes, provide a sound or a reliable basis upon which to exclude the involvement of a motor vehicle in the plaintiff's accident. The evidence does not persuade me that the topic was either broached or explored by Dr Welgama or the plaintiff to enable the conclusion sought by the defendant that the evidence of Dr Welgama undermines the case the plaintiff seeks to make. In my assessment, Dr Welgama's evidence of what usually occurs at the time of patient handover as cited at paragraph [139] above reinforces that view.

[20]

Dr Lando's evidence

The defendant called Dr Joel Lando, who also gave his evidence by telephone. On the evening of the plaintiff's admission to Princess Alexandra Hospital, Dr Lando was on duty as a principal house officer in orthopaedics: T197.23. He was working as the on duty overnight spinal registrar on the evening in question: T199.35. He is presently both a general practitioner and a registrar: T197.29.
Dr Lando's role was to take a full history and to examine the plaintiff, to go through the imaging, and to then speak to the spinal surgeon to whom he reported because of suspicions as to the nature and extent of the plaintiff's spinal injury: T199.35 - T200.1.
Having read the hospital notes before he gave his evidence, understandably, and fairly, Dr Lando was unable to say whether the history he recorded came directly from the plaintiff, or whether he obtained it from the notes that had been sent with the plaintiff from Lismore. Dr Lando stated that the plaintiff was noted to have been conscious and oriented. He therefore felt it was likely that the source of the information he had obtained was from the plaintiff: T200.3 - T200.14. He considered that his examination of the plaintiff would have occupied about 20 to 30 minutes: T200.37.
Dr Lando's notes which he made following his first examination of the plaintiff related to the assessment of the extent of the plaintiff's spinal injuries. In his oral evidence, Dr Lando was taken through his notes which stated that the plaintiff had a mountain bike accident in which he fell over the handlebars, with axial loading on the helmet. He was also taken through his notes as to the nature of the plaintiff's injuries: T197.39 - T198.8.
Dr Lando stated that if he had been told the patient had been struck from behind by a motor vehicle, he would have written something like "cyclist versus car" as it was important to describe the mechanism and the intensity of the injury: T199.49; T200.25 - T200.32. Interestingly, the note made in the hospital notes on 4 December 2012 by Dr Williams was "pushbike accident vs car from behind": Exhibit "5", Tab 3, p 55.
In answers to questions asked of him on cross-examination, Dr Lando said he could not recall whether the notes that had been made by Dr Welgama were available to him at the time of his own examination of the plaintiff, and in giving that evidence, he noted that generally, he relied "heavily" on the existing notes concerning a description of how the accident had occurred: T200.41 - T201.27.
Dr Lando was asked if he could clarify a timing issue in his notes. That issue concerned an apparently mistaken use of the word "today", used at 1.30am on 3 September 2012 to describe the plaintiff's accident that had occurred at about 12 noon on the previous day. Dr Lando inferred from the fact that the plaintiff had a recorded GCS of 15 (incorrectly referred to in the transcript as TCS) that the mistaken use of the description "today" was probably as a result of confusion on the part of the plaintiff because the cited GCS indicated (to him) the plaintiff was confused: T201.49 - T202.22.
There was no expert medical evidence to suggest that a GCS of 15 was inconsistent with a state of confusion on the plaintiff's part. It seems from the evidence of Mr Hartley that the GCS was only a measurement of consciousness: T81.47.
Given that Dr Lando had for his purposes, relied heavily on the existing notes of how the plaintiff's accident had occurred, I do not consider his evidence provides a sound basis for excluding the possibility or rejecting the proposition that a motor vehicle had been involved in the events of the plaintiff's fall from his bicycle. Dr Lando's focus was the medical assessment and care of the plaintiff, and not a liability investigation.

[23]

Evidence of Constable Antequil

The defendant called Constable Antequil, who is at present a constable with the Queensland Police Force. He was a probationary constable in the NSW Police Force at Lismore at the time the plaintiff's accident was reported to Lismore Police Station.
Constable Antequil gave evidence of the general system by which reports of road accidents were investigated, and he advised that if police had received a telephone report of someone having been struck from behind by a motor vehicle, and who had required hospitalisation as a result, the police officer receiving such a call would be required to investigate the circumstances, and the reporting person "could be advised to either attend the station to complete the report, or we could have police attend their location to take the report": T207.49 - T208.5.
That evidence was directed at the defendant seeking to rebut the evidence of Mrs Cordin to the effect that she had reported the accident to Lismore Police Station on 5 September 2012 but did not get an events number: T106.47; T111.6 - T111.10. I did not regard the evidence of Constable Antequil to be a rebuttal of Mrs Cordin's evidence that she had made a report to Lismore Police Station on 5 September 2012. Mrs Cordin stated that she returned to the police station on 12 September 2012 to obtain an events number after telephoning beforehand: T110.47; T109.8; T114.19. The defendant submitted it was significant that visit occurred after a solicitor had been consulted. In my view, that submission was grounded in suspicion. In my view, nothing of significance turns on the fact and timing of a consultation with the solicitor.
When Constable Antequil saw the plaintiff and Mrs Cordin at 14:15hrs on 12 September 2012, he entered the incident onto the police WebCOPS records system at 17:53hrs on that day: T208.28. In that regard, he wrote the following narrative of the event: "The victim saw several large potholes in the roadway applied his brakes and attempted to manoeuvre the pushbike around the potholes. As this was done the victim felt a strong sudden impact from behind. The victim recalls being thrown through the air before landing on the roadway at which point the victim was rendered unconscious for an unknown amount of time." [T208.35 - T208.45]
Whilst Constable Antequil differentiated between the terms a narrative, being the detailed account as recounted in the preceding paragraph (T208.50 - T209.5), and a summary, which he described as a brief outline, in my view, in this case, the suggested distinction is one without a material difference.
On 18 December 2012, some 15 weeks after the accident, and after undertaking some inquires, Constable Antequil prepared a further crash summary, in which the event was described slightly differently to the cited version set out in paragraph [168] above, namely, as follows: "The male pushbike rider approached the dip in the road and observed several large potholes. The rider applied his brakes in order to slow down and avoid the potholes. Without warning the rider was struck from behind by an unknown motor vehicle and the rider was thrown from his pushbike" [T209.26 - T209.32].
Constable Antequil indicated that the order in which the documents were created was that the crash summary had preceded the narrative: T209.45. In the course of his investigation, he came to the conclusion that if there had been a motor vehicle involved in the incident, it could not be identified: T210.3. It seems from the council records that the road had been repaired 2 days before Probationary Constable Antequil's call to the council to suggest the road be repaired: Exhibit "5", Tab 5, pp 62 - 63.
In the course of his investigations, Constable Antequil believed that the road conditions had contributed to the incident, and he therefore informed Lismore Council that the road needed to be looked at in order to make the necessary repairs: T210.26.
Constable Antequil left the further investigation of the matter to Senior Constable Crawford: T211.4. That officer was not called to give evidence, presumably because the requirement for the plaintiff to prove he had pursued due inquiry and search was not an issue which was contested in the proceedings.

[24]

Mrs Cordin's evidence of subsequent events

At this point it is convenient to resume the review of the evidence of Mrs Cordin but with the focus being on the events that occurred after the plaintiff was hospitalised.
Mrs Cordin was aware that the plaintiff had been transported by helicopter to Brisbane at about 9.30pm on the evening of 2 September 2012, and she went to the Princess Alexandra Hospital with her daughter the next day, which was a Monday: T89.7 - T89. She stayed in Brisbane until the following Tuesday afternoon: T105.46.
Mrs Cordin said, and I accept, that she did not have a conversation with her husband about how the accident had occurred until she saw him at the Princess Alexandra Hospital on the day after the accident.
In that conversation, in response to her question to the plaintiff as to how the accident happened, she said he had replied "I was hit from behind by a car": T89.38; T98.23; T98.44; T99.6; T106.11. She agreed that this was the first occasion on which someone had said a motor vehicle had been involved in the accident: T106.27. She confirmed that, according to her understanding, the plaintiff had consistently given that account since then: T98.19 - T99.1. She denied that the plaintiff had told her he did not know what had happened to him: T98.27. No evidence was called to directly contradict her evidence in that regard, and I accept it as it is not inherently improbable and because I considered Mrs Cordin to be a truthful witness. The defendant's criticism of that evidence was that it was self-serving and inconsistent with the other accounts attributed to the plaintiff.
The defendant raised the criticism that Mrs Cordin had not included the detail of that conversation with the plaintiff when she gave her statement to the police in Lismore on 23 October 2012, although that statement does refer to a belief on her part that the plaintiff was injured in a motor vehicle accident "just by his injuries": Exhibit "F", par 21; T106.15.
I do not regard Mrs Cordin's statement comprising Exhibit "E" to be definitive of whether there was a motor vehicle involved in the plaintiff's accident. Nor do I regard that statement as being definitive of the evidence she could give in these proceedings as it was prepared for another purpose, namely a police investigation, and not by her, although she had signed the statement. In these circumstances, I do not consider the content of Exhibit "E" to be contradictory of the evidence given by Mrs Cordin. I do not consider it to reflect adversely on her credit as a witness or on the reliability of her testimony.
However, Mrs Cordin stated, and I accept, that she had informed Constable Antequil of the concern a motor vehicle had been involved, and it appeared to her that he had made a note of it in his notebook: T106.33. I do not consider the evidence of Constable Antequil to be sufficiently specific to serve as a contradiction of the evidence of Mrs Cordin on this point. Nor do I consider Mrs Cordin's evidence on this point to be inherently improbable or unlikely in that regard.
Mrs Cordin said that on her return to Lismore, she rang the police and ascertained there had been no report of the accident, and she then initiated some steps towards making that report: T90.1; T92.1 - T92.26. In the course of doing so, Mrs Cordin said that the police suggested to her that she should contact the Council to let them know of the state of the road at the accident scene: T92.42. Mrs Cordin said that she then did so on what she thought was the following day: T92.46 - T93.10. That evidence was the subject of contention.
Mrs Cordin's statement to the police on 23 October 2012 contained the following text: "14. On Wednesday 5th September, 2012 I contacted Lismore Police Station in relation to the motor vehicle accident, but at that time no-one knew anything, An Officer suggested I contact Lismore Council in relation to the state of the road surface, having several potholes as the officer had cause to be out in that area the previous day for a rescue operation."
In those circumstances, particularly where a police officer had suggested that she make that call, it was reasonable for her to do so, not only for considerations of liability, but also in relation to the requirement that there be due inquiry and search.
Mrs Cordin was cross-examined about a document she had signed at the Princess Alexandria Hospital which had asked the question "Was a motor vehicle involved?". She explained that she did not read the form but she had filled in the particulars: T95.23 - T95.36. She said the first time she read the reference in the form to a motor vehicle accident was when she was cross-examined and not beforehand: T97.3.
Mrs Cordin explained that the form had not been filled out by her, and as far as she knew that at the time, the form needed to be signed as the hospital needed a signature on the form in order that the plaintiff's head wound could be washed out in the course of a proposed surgical procedure, in circumstances where the plaintiff was unable to sign the form himself: T94.15 - T94.33. In fact it was her daughter who had filled out the form: T95.9. She said she did not look at the "crosses" which addressed questions on the form: T95.5; T95.36. In the stressful circumstances that prevailed at the time, where the form was presented to Mrs Cordin to sign, I do not consider her explanation was improbable or unlikely, where the priority in the circumstances was the consideration of arranging for the treatment being suggested for the plaintiff, which required her consent.
The defendant criticised the fact that the daughter of the plaintiff and Mrs Cordin was not called to give evidence to confirm the above account. In my view, that criticism was ill-founded. Notwithstanding the defendant's submission to the contrary, I did not consider Mrs Cordin's evidence was of a kind that required corroboration on that point. Her evidence was capable of acceptance without corroboration. I accept that evidence as was stated by Mrs Cordin.
Mrs Cordin was cross-examined on the statement she had given to Constable Crawford at Lismore police station on 23 October 2012: Exhibit "F"; T103 - T113. That cross-examination seemed to centre upon the notion that when Mrs Cordin had attended the accident scene, in trying to form a view as to what had happened to the plaintiff at that time, she considered the possibility that he had been hit by a motor vehicle: T103.43 - T104.34. On the evidence, that seemed to have been a reasonable question for her to be considering at that time. However, this does not mean that her account, or the plaintiff's account, concerning the involvement of a motor vehicle, was fabricated.
The cross-examiner sought to criticise Mrs Cordin for not including in her statement to the police dated 23 October 2012, the fact that whilst he was in hospital, her husband had told her that he had been hit by a motor vehicle. She was also criticised for not including in her statement something to the effect that she had made earlier contact with the police and that she had been advised by the police to speak with the Council about the state of the road: T106.5 - T107.50.
In my view, those criticisms go nowhere without specific counterpart evidence from Constable Crawford, who took the plaintiff's statement, especially where the primary focus of the statement in question was to produce and identify the photographs which were described in that statement as photographs numbered 1 - 5: Exhibit "F", par 10 - par 20. The remaining paragraphs of the statement were either of an introductory or background nature. Without specific evidence from Constable Crawford as to the manner and process by which the statement was prepared, I do not accept the defendant's submission to the effect that Exhibit "E" demonstrated inherent and material omissions which detracted from the credibility and the reliability of the evidence of Mrs Cordin.
Mrs Cordin specifically denied the suggestion that the notion of the involvement of a motor vehicle in striking the plaintiff only arose after she had consulted her solicitor: T110.24. I accept her evidence in that regard, particularly since it was not inherently improbable, and it was not squarely contradicted by other evidence.
Mrs Cordin's recollection was that on the Wednesday, after the 5th of September, she had gone to Lismore police station and had spoken to Constable Antequil about the matter, and that he had taken notes, but that no events number had been given to her on that occasion: T111.5 - T111.10.
The cross-examination of Mrs Cordin also centred around paragraph 21 of her statement dated 23 October 2012, which was in the following terms: "21. I believe my husband's injuries have been caused by a motor vehicle, just by the injuries sustained to his head and his back. Damage caused to his helmet, bike, glasses indicates to me this is not from a simple fall."
In the stated circumstances of Mrs Cordin's communications with the plaintiff whilst he was in hospital, that view was one that was reasonably open for her to hold.
The defendant was critical of the fact that Mrs Cordin did not include in that paragraph of her statement, a reference to the plaintiff's statement to her to the effect he had been struck by a motor vehicle: T113.5 - T113.17. Without specific evidence from Constable Crawford to establish the agenda or focus of the process and manner of construction of that statement, I am not prepared to accept that criticism of the credibility of the testimony of Mrs Cordin, as was submitted by the defendant on this point as I found her evidence otherwise convincing.
On a review of the entirety of Mrs Cordin's evidence I am not persuaded that her evidence was untrue, or incorrect, or that it was tailored to suit the plaintiff's case, or that it was of such a character that it required corroboration. I am satisfied that Mrs Cordin's evidence was truthful and reliable. I accept her evidence as cited in its entirety.

[25]

Plaintiff's evidence

At this point, having reviewed the evidence from other sources, and before examining the expert evidence, as foreshadowed at paragraph [27] above, it is appropriate to now review the evidence of the plaintiff.
At the time of the accident the plaintiff was aged 54 years. He is presently aged 61 years.
He has lived in the Rosebank area for over 30 years. He has had a lifelong familiarity with riding mountain bicycles: T3.8. He was also a very experienced rider: T8.46. At the time of the accident, and on several days per week over the course of some 20 years, it was his longstanding practice to ride his bicycle on trails up to Rummery Park and Nightcap National Park, which was several kilometres from his home: T3.10 - T3.20; T5.34 - T5.41.
The plaintiff described the general area where the accident occurred as thick national park bushland, but generally comprising a quiet area. He said there were cars and people in the area at the time of the accident: T36.47. He agreed that the road in question came down from a ridge with a steep pitched hill before levelling out: T37.41 - T37.46.
On 2 September 2012, the plaintiff went for a comparatively short one hour ride on that road before going to a Fathers' Day event that had been pre-arranged by his family. It is common ground that the accident occurred on a portion of the road a short distance downhill from the turnoff to the Minyon Falls Lookout, which was also known as the picnic grass area: T5.45.
On that journey, the plaintiff had peddled, or cycled past two car parks with some cars parked there, one being off the road and about 100 metres from the accident scene, and the other being about a kilometre from the accident scene: T62.49 - T63.11. However, whilst the plaintiff was on the journey generally downhill towards where the accident occurred, he had not seen any cars driving on the roadway in either direction: T63.19 - T63.46.
At the time, and for some weeks beforehand, the road surface had what was described as a very large nest of potholes, some being nearly a metre round, and some 200mm to 300mm deep: T6.20 - T6.24. He knew the road very well: T15.42. On 26 June 2012, which was about 9 weeks before the accident, he had his bicycle brakes renewed and at that time his bicycle had been checked generally for safety: Exhibit "B".
Shortly before the accident occurred, the plaintiff had ridden up the road and had turned around to make the downhill ride towards his home. As he passed the picnic grass area he encountered the potholed area in front of him that was more levelled out. His response was to apply his brakes, stand on the pegs of the bicycle as a method of shock absorption (T14.21), and to negotiate his bicycle in a course around what he described as a bunch of potholes: T6.20 - T6.45. He stated that he had slowed down to a virtual walking speed in order to negotiate the potholes: T8.49; T31.49. He described his speed as going slowly for that purpose: T32.3; T38.8; T38.36; T38.44 - T38.48. He later adopted the term "rolling" down the hill, rather than coasting: T64.2.
The plaintiff said that he had already passed some potholes before the accident: T15.45. He knew that potholes were a potential danger, as he had negotiated them in the previous months: T16.6 - T16.11. He later described the road as having been in that condition for 20 years: T29.21; T60.10. He had previously had the experience of having fallen from his bicycle on that road due to loose gravel or a bump: T16.42 - T17.10; T28.17.
In the course of preparing to negotiate the potholes, the plaintiff said he had a feeling of going forward rapidly off his bike: T6.48. He said he believed he had been hit from behind by a motor vehicle: T8.43. He further described that moment as having been shunted from behind: T16.36; T17.14; T20.37 - T20.45. This was also described as a feeling that he had been propelled forward having left his bicycle which had gone from under him: T32.15 - T32.29. He was adamant that he had felt something whilst he was standing on the pegs of the bicycle: T49.10.
He also described at that moment as having felt some inertia from behind before he was propelled forward and before his memory of events ceased. His memory resumed at the point where he could recall in patches that he was sitting in the back of a vehicle with someone holding a towel to his head: T31.15 - T31.24: T49.10. He described the event of having gone [off the bicycle] as having occurred in a split second: T49.16. When pressed, he maintained that he knew he had been hit from behind. He said this made him assume he had been hit by a vehicle: T50.23.
The plaintiff described this event has having occurred before his bicycle had reached the potholes on the road: T26.30. Beforehand, he had not seen or heard any other vehicles: T7.1 - T7.6; T37.5. He qualified that evidence by stating that his own bicycle made squealing brake noises which he seemed to suggest would mean that he wouldn't necessarily hear the engine noise of a car coming downhill behind him, especially if there was other ambient bush noise as well: T64.28 - T64.36. He also stated that he had no reason to look behind him before the accident had occurred: T39.1; T64.22. The plaintiff was unable to accurately describe whether he was in the middle or to the side of the roadway when the accident occurred (T40.10), but he stated that he had adopted the best position from which to negotiate the potholes: T39.3 - T39.25.
By reference to a photograph, the pothole where the plaintiff was found after the accident was described as being in the middle of the road at a point where the road sweeps to the right: T45.1 - T45.20.
It was suggested to the plaintiff, but not accepted by him, that when he reached the potholes in the road, the likelihood was that he [meaning the wheel or wheels of his bicycle] got into potholes on the road whilst he was travelling too fast, which, it was suggested, resulted in him losing control of his bicycle so that he ended up where he was found, with his face in a water filled pothole: T46.14 - T47.13.
The plaintiff was asked to prepare a diagram explaining the events for the purpose of his claim. That diagram was incorporated in the report of Mr Griffiths at Exhibit "5", Tab 6, p 78, and was in the following terms: [Exhibit "5", Tab 6, p 78]
The plaintiff did not accept the proposition that his bicycle could have been damaged by riding it at a high speed over, or striking, a pothole. He explained that this type of damage would not occur in that way with his type of mountain bicycle: T48.9 - T48.38.
Furthermore, the plaintiff did not accept the series of propositions put to him to the effect that he had invented his story of standing on the pegs of the bicycle, that he had miscalculated his downhill course, and that in those events, he had struck a series of potholes, leading to him being thrown from his bicycle, and then landing on the road on his face, hands and knees: T49.38 - T50.4. Absent supporting evidence, I consider that those propositions advanced by the defendant amount to no more than speculative hypotheses.
The plaintiff agreed it was possible that if his back wheel went into a pothole suddenly and with force, this could cause a loss of control of the bike, and if that occurred, this could then also cause him to go into another pothole and [be thrown] over the handlebars of his bicycle: T48.40 - T48.50.
The plaintiff thought that the accident occurred at around seven or eight, or "early-ish" in the morning: T33.34. On the evidence, the plaintiff's impression in that regard was plainly incorrect. He properly conceded that his recollection of the accident having occurred at 7.00am could possibly be incorrect: T34.12. In my view, nothing of significance turns on the plaintiff's incorrect view as to the likely time the accident had occurred.
The plaintiff said that at the scene, he was not capable of telling anyone anything [as to what occurred] at the time of the accident: T17.17. He stated that he was in extreme pain at the time: T40.13 - T40.21. He said he "facets" of remembering seeing a person at the scene, and that person holding a towel to his head, and being "pretty incoherent at the time": T21.50; T24.48. He could not recall conversation with that person: T22.50 - T23.14; T23.39 - T24.25. That evidence was borne out by the evidence of Mr Bessabava and Mr Marshall.
The plaintiff's recollection was of waking up in the back of a vehicle (T6.50) and he could recall the young man who had pulled him out of the pothole which had been filled water significantly discoloured with blood: T9.42 - T9.48. He had not seen any vehicle in the immediate vicinity in the immediate aftermath of the accident: T42.43.
The plaintiff recalled being in a lot of pain, and being asked by the attending ambulance officer to walk to the ambulance: T9.28. He did not recall saying anything to anyone at the scene: T9.21; T9.30 - T9.39: T30.1 - T31.6: T34.39. He did not remember the journey to Lismore Hospital: T7.18 - T7.22.
The plaintiff denied having had a recollection of conversations in Lismore hospital. He just remembered laying there in pain, and being in and out of consciousness: T18.42; T19.6. The medical records, such as were tendered, do not contradict that evidence.
Whilst the plaintiff said he remembered seeing doctors, he could not recall being interviewed by an orthopaedic consultant, or a spinal specialist, whilst at Lismore Hospital: T13.30; T19.34. The plaintiff could not recall telling an orthopaedic surgeon at Lismore Hospital that he had fallen from a bicycle: T20.18.
The plaintiff could not recall having received pain alleviating medication in Lismore Hospital: T19.13. However, he could recall receiving such medication at the Princess Alexandra Hospital: T19.16. In my view, because of his pain and incoherence until he was in that hospital in Brisbane where his pain had receded somewhat, and his thinking became clearer, he was unlikely to have been in a position to provide a full and lucid account of what had happened in the events of the accident.
The plaintiff described his injury as involving a dirt and mud contaminated laceration to his face (T10.8), injuries to the dorsal areas of both thumbs (T10.35; T32.46), and he was suffering from the effects of head trauma: T11.49. Based upon what he had been told by medical personnel, he believed the head trauma had affected his memory: T34.41 - T34.46. He said he did not remember a lot after the head trauma, and indicated that for some months after the accident, he had a difficult time mentally: T35.34.
I accept the plaintiff's account as summarised above. That account strongly suggests that from the time the plaintiff became injured, and during the early stages of his hospitalisation, he was not in full command of his mental processes, and it was not until in the course of the day after the accident, in conjunction with pain relief, that he was able to piece together events in the manner he described in his evidence.
It was suggested to the plaintiff that in the days after the accident, it was his wife who had assumed or suggested to him that he had been hit by a motor vehicle and he denied that suggestion: T50.22. The plaintiff said that when he saw his wife at the hospital, he was incoherent: T50.19. However, he said whilst he was at the hospital in Brisbane on the day after the accident, he said to his wife that he had been struck from behind by a motor vehicle: T50.32 - T50.45; T51.1 - T51.7; T51.23 - T51.28; T59.25 - T59.30. I accept that the plaintiff's account came from his pieced together recollection as stated by him, and not as being a suggestion from his wife, as was submitted by the defendant, as flagged at paragraph [57] above.
The plaintiff said that his clear and continuous recollection after the event probably commenced when he had pain relief at the Princess Alexandra Hospital in Brisbane: T7.48. Before that, his recollection was "very hazy": T8.1. The plaintiff agreed that at the Princess Alexandra Hospital, he had been questioned as to the recollections he had about the accident: T14.10. However, he denied that his account was one that he had reconstructed, allegedly in order for him to achieve a verdict in his favour in these proceedings: T15.30.
It was put to the plaintiff that when he was asked questions about the accident by hospital staff, he "most probably" did not tell them he had been struck from behind by a motor vehicle. There was no evidence that the questions being asked of him were along the lines of a liability inquiry. The relevant context of that cited evidence was that the plaintiff was just answering questions that were being asked of him, and I infer, he did not consider that he was being called upon to "tell medical staff anything" along the lines of a detailed liability account as might be required in a police interview or legal interview, or as might be required in an evidentiary account in court: T51.45.
The plaintiff recalled speaking to a lot of medical staff in the Princess Alexandra Hospital, but he could not recall speaking with an occupational therapist: T35.40; T52.31. At a later point in his evidence, still during cross-examination, the plaintiff gave what might be considered to have been a contradictory answer to his earlier answer of not having recalled speaking to an occupational therapist. That apparent contradiction was at T52.40 - T52.42. There, in answer to a loaded question that incorporated an assumption that he had recalled speaking to an occupational therapist, he answered affirmatively.
In my assessment, when that evidence is read in the context of the plaintiff's evidence as a whole, and taking into account the pressing manner in which the questions were being put, I do not read that answer as being an actual contradiction of his earlier evidence, particularly in light of his subsequent answers in clarification: T53.14 - T53.18.
The cross-examiner put to the plaintiff the suggestion that when medical personnel in hospital had asked him specific questions about what had happened to him, he most probably answered to the effect that he had a bike crash, and did not mention that he had been struck by a motor vehicle: T52.5 - T52.14. I considered the candour of that answer to be a matter that demonstrated the plaintiff's credit as a witness.
The plaintiff said, and I accept, that when he saw his wife in the hospital, he told her that he recalled being hit from behind in the accident: T11.11 - T11.34.
The plaintiff recalled seeing a number of hospital medical practitioners in Lismore and in Brisbane. He could not recall speaking to anyone in Lismore Base Hospital (T18.36) but he could recall speaking to doctors at the Princess Alexander Hospital in Brisbane: T14.5. He recalled being in pain whilst in Lismore Hospital and of being "in and out of consciousness", and "dazing" (sic for perhaps dozing) "in and out": T18.43 - T19.7. He also described himself as not thinking clearly in hospital, and of being "scattered": T28.26. He also stated that at the time he was speaking to medical people he was in a "very stressful way mentally and physically": T52.31. He said he remained very distressed mentally for some time after the accident: T53.42.
The plaintiff said the first time he felt able to piece together the "facets" of what had happened to him in the accident was when he was in Princess Alexandra Hospital: T21.48; T24.48; T25.25 - T25.49. The impression I gained from his evidence was that before that time, everything, meaning his recollection, had been "very blurred" apart from a vivid recollection of events before he came off his bicycle: T25.48 - T26.10. The plaintiff said that even after he was discharged from hospital, and for a few hard months afterwards, he was having difficulty putting things together mentally with regard to the details of the accident: T55.36 - T56.24.
Within a day or so after being discharged from hospital, the plaintiff consulted his solicitor, and on the same day he saw his solicitor he went to Lismore Police Station to make a statement, and then within a few days after that, with the assistance of his wife, he put up a few signs seeking witnesses to the incident: T8.3 - T8.13.
The plaintiff first saw the police on 12 September 2012, and again on 23 October 2012, after seeing a solicitor: T53.49 - T54.21; T57.47. There was implied criticism over the fact that the plaintiff did not report the accident to the police before 12 September 2012: T54.7. The plaintiff's explanation, which I accept, was that beforehand, he was "under duress physically and mentally" and he "couldn't string it together to do much at all" as he was in no condition to ring or contact the police: T54.40; T 55.1 - T55.9. I took those expressions to mean that he was too stressed and affected by the accident to attend to that task earlier. In my view, given the nature and the extent of his injuries, nothing turns on the late report of the accident to the police.
By the time the plaintiff gave his statement to the police at Lismore, he had formed the opinion that the accident was caused by a motor vehicle accident hitting his back wheel: T58.30. Whilst he said that he based that opinion on his experience as a bike rider (T58.37), I do not read that evidence as a contradiction or a retraction of his earlier cited evidence of having felt that he and been struck from behind before he fell to the roadway.
In answers to questions put in cross-examination, the plaintiff denied his evidence was actuated by monetary gain, or that he had reconstructed his evidence for that purpose: T15.17 - T15.30. He defended himself from the assertion that his account of having been struck by a motor vehicle was a recent invention on his part, and referred to having been affected by his very bad head trauma: T22.10.
The plaintiff agreed that after seeing a solicitor, he had considered suing the council: T29.25. Whilst a lay person, or a solicitor incompletely seized of the facts may have held such a course at that time, in my view, that evidence is of dubious significance to the liability consideration required in this case as the underlying conversations and advice which preceded the plaintiff's thought processes in that regard were not available as evidence to be reviewed. However, any analysis of such conversations must take place against the background fact that the plaintiff's thought processes were "scattered" at that time: T28.26.
On behalf of the defendant, it was put to the plaintiff that his wife had rung the council after they had discussed suing the council: T29.15. In my view, that proposition has little if any relevance to an assessment of the plaintiff's credit as the timing of the call to the council was entirely dependent upon the actions of his wife, and in any event, the making of that call was not necessarily inconsistent with the plaintiff's view that he had been struck from behind by a motor vehicle. As is self-evident, a case of this kind alleging the involvement of an unidentified motor vehicle is not an easy one. There may have been several good reasons why the plaintiff did not indicate an earlier intention to bring a claim against the present defendant, whether because of concerns over challenges or difficulties with proof, or other matters that may have been discussed between himself and his legal advisors.
The question of whether the body responsible for maintaining the roadway had left it in a potholed state, and was, therefore in part responsible for the plaintiff's injuries, was a reasonable one justifying at least a preliminary consideration. The fact that no claim was made against the road authority is an irrelevant consideration in the assessment of the credibility and the reliability of the evidence of the plaintiff. This is so even if the history taken by the psychologist, Ms Jeffries, as recorded on page 1 of Exhibit "2" is assumed to be correct, a matter disputed by the plaintiff in circumstances where he was able to point to other errors of assumption in that summarised record of the history as set out in that document: The plaintiff described the summary in that exhibit was being wrong and confused: T41. In the absence of evidence to the contrary, I do not see why his evidence in that regard should be rejected.
The plaintiff denied the suggestion that in his evidence, he was employing an answering "device" or "plan" of saying "I don't remember" when being questioned in cross-examination about what he might have said to somebody about the events that was inconsistent with his case: T56.38 - T57.19. My impression of his evidence did not support that criticism. I considered his evidence was given openly and spontaneously, and without hesitation or guile.
The plaintiff denied the proposition that at the scene, he had heard his wife inquire as to the whereabouts of the vehicle that had struck him. Given the described effects of his head injury, I accept that denial. He also denied the proposition that it was not until days after the accident that the question of whether or not he had been hit by a car "came into [his] calculations": T59.10 - T59.21. I did not consider that suggestion, or the plaintiff's denial to reflect adversely on his credit as a witness. The plaintiff said, and I accept, he was only able to think more clearly about the incident after he obtained pain relief at the Princess Alexandra Hospital: T8.1. I accept that evidence.
Except for the plaintiff's incorrect view as to the time of the accident. I did not consider any other aspect of the plaintiff's evidence to be improbable or unlikely to be true such that his evidence required corroboration before it could be accepted. It is against that background that I now turn to consider the evidence of the accident reconstruction experts to see if, amongst other things, that evidence served to in any material way contradict the plaintiff's evidence on factual matters.

[27]

Opinions in the first report of Dr Carnavas

Dr Carnavas essentially identified a number of possible alternative causes for the accident. The first category of such potential causes was that the plaintiff might have lost control of his bicycle, either because of excessive speed, or because of possible bicycle wheel contact with roadway irregularities, such as potholes, or, I interpolate, a combination of those factors, and the second category being through impact due to possible physical interference from another vehicle, as claimed by the plaintiff: Exhibit "A", Tab 1, p 5.
Before preparing his opinions, Dr Carnavas had inspected the plaintiff's bicycle which, I accept, had essentially been left in the same state in which it had been found immediately after the accident, as was represented to him.
Dr Carnavas ascertained that although the plaintiff's bicycle appeared to be in a rideable condition, and appeared to be without significant damage except that the rear wheel could not be rotated because it was jammed against the right rear brake pad, a closer inspection revealed that the wheel had what he described as a substantial buckle in it, and that the right side of the axle of that wheel had been displaced downwards towards the drop out opening in the rear forks. This was a very significant finding. Dr Carnavas found that when he removed the jammed rear wheel, he was able to determine that the frame had not been deformed or bent: Exhibit "A", Tab 1, p 3, sub-paragraphs 3.5; 3.6; 3.15 and 5.1.
Dr Carnavas documented his observations by reference to a number of photographs, copies of which he had included in his first report. He made a number of measurements of components of the bicycle during the course of his inspection and examination, and he determined that the right side of the rear wheel axle had been displaced downwards by about 6-7mm, and that when the quick release lever on the axle was fully opened in an attempt to remove the wheel, the wheel was still tightly fixed in the frame of the rear axle, which required that he loosen the axle nut in order to remove the wheel: Exhibit "A", Tab 1, p 3, sub-paragraphs 3.13 - 3.14.
When Dr Carnavas completed his inspection and his measurements of the bicycle, he reinstalled the rear wheel. At that time, he found that the rear wheel and axle could be correctly re-seated in the frame and that it could be rotated, although in that situation, it rubbed heavily on the brake pad because the wheel was buckled: Exhibit "A", Tab 1, p 4, sub-paragraph 3.17. That too was a significant observation. Dr Carnavas then proceeded to a view of the general roadway of the accident scene.
Following those inspections, Dr Carnavas discounted the possibility that the plaintiff's accident was due to either excess riding speed or due to the plaintiff riding his bicycle into a pothole. He considered that if excessive speed was a factor, he would have expected different damage to the bicycle to be evident, and if the plaintiff had struck a pothole, he considered that this did not account for the downward displacement of the rear axle which he had found on his inspection. This was a crucial matter to be reconciled in the expert evidence.
The opinion of Dr Carnavas favoured the mechanism of the plaintiff's bicycle having been struck from behind by another vehicle: Exhibit "A", Tab 1, pp 5 - 6, sub-paragraphs 4.3; 4.4; 4.5; 4.6. His opinion to that effect was expressed in the following terms: "… 4. Similarly, Scenario A (ii) would generally result in a different damage pattern to that observed. I would expect that the front end of the Bicycle would have been damaged if the front wheel had hit a pothole. If the Bicycle was jumped or 'bunny-hopped' over a pothole so that the front wheel cleared it but the back wheel made impact, then this could account for the buckle in the rear wheel. However, it would not account for the downward displacement of the rear axle on the right hand side because such an impact would force the wheel upwards; 5. A rear impact from a vehicle would most probably involve contact of the vehicle's bumper with the Bicycle's rear wheel. A severe impact could result in frame damage but a moderate impact would cause at least a buckled rear wheel. The height of the point of contact would vary depending on the type of vehicle involved. For a sedan2 the height would be about 400mm, for an SUV3 about 550mm. If a bull bar was fitted, the contact point would probably be higher. I measured the height of the Bicycle rear axle to be about 340mm. The abnormal position of the rear axle I observed during my inspection was consistent with the wheel being contacted by a vehicle bumper. The bumper's higher position would exert a downwards force on the wheel and if the force was sufficient, the axle could be displaced downwards in the dropout opening (which was oriented about 14 degrees forward of vertical - see Photograph 7, Attachment 1): 6. In my opinion, the most probable cause of the damage to the Bicycle and also the most probable cause of the Accident was a low (relative) speed rear impact of the Bicycle by a motor vehicle. 5 CONCLUSIONS 1. The significant damage to the Bicycle I observed during my inspection was limited to a substantial rear wheel buckle and the downwards displacement of the right hand side of the rear wheel axle; 2. As a result of this damage, the rear wheel was jammed on the right hand side brake pad and could not be rotated. The Bicycle was unrideable; 3. The damage was consistent with the Bicycle having been hit from behind by a motor vehicle and, in my opinion this was the most probable cause of the Accident. …"
The effect of the conclusions formed by Dr Carnavas was that because the significant damage to the bicycle was limited to buckling of the rear wheel, and involved the downward displacement of the right side of the axle of the rear wheel, this led him to the probability-based view that the damage from the accident was consistent with contact by a vehicle.
Following his consideration of the two reports of Mr Griffiths, in his second report, Dr Carnavas concluded that he disagreed with almost all of the assertions made in the report of Mr Griffiths. He also stated that he disagreed with all of the conclusions expressed by Mr Griffiths. In those circumstances, Dr Carnavas also stated that his original conclusions, as set out in his first report, remained unchanged: Exhibit "A", Tab 2, pp 15 - 16, sub-paragraphs 4.1 - 4.5. A dispute of such magnitude would ordinarily be expected to have benefitted from the convening of a conference between the disagreeing experts before they were called to give evidence: UCPR r 31.24(1)(a).
A review of the second report of Dr Carnavas will follow a review of his oral evidence and a review of the opposing opinions of Mr Griffiths.

[28]

Oral evidence of Dr Carnavas

The defendant required Dr Carnavas to attend the hearing to be cross-examined on the content of his reports: T116 - T141. That cross-examination was followed by a short re-examination: T141 - T142. In his oral evidence, Dr Carnavas cogently explained his views.
The defendant made a series of attacks upon the opinions of Dr Carnavas
The first such attack involved a claim by the defendant that Dr Carnavas had employed closed loop reasoning or hindsight bias analysis in formulating his opinions by reason of the nature of the assumption he was given to the effect that the plaintiff's bicycle had been struck by a motor vehicle: T117.1 - T118. I consider that criticism to be ill-founded. In my view, Dr Carnavas approached the task of analysis in a manner that was expected of an independent expert, given the extent of the available information. The fact that he gave consideration to the instruction that a motor vehicle was involved in the accident was in the context of a working hypothesis which had to be properly weighed and evaluated: T117.28; T118.21. I do not accept that his analysis involved hindsight bias as claimed.
The second such attack was the assertion that the [first] report of Dr Carnavas was sparse on material content, an assertion Dr Carnavas rejected, instead stating that his report was concise: T119.14 - T119.18. I accept that rebuttal as a reasonable description of the first report of Dr Carnavas.
The third such attack was that Dr Carnavas' first report was deficient of relevant information as to the speed of the plaintiff's bicycle and its road position at the time of the accident: T119.30 - T119.43. In my view, Dr Carnavas has effectively answered that criticism by pointing to the fact that such information could not have been empirically gained in the absence of independent witnesses to enable an assessment of those factors, and as a result, he adopted the analytical approach of assessing the damage to the bicycle in order to see if the speed of the bicycle could be ascertained through such means: T119.45 - T120.12. On the evidence, I consider that to have been a reasonable and valid approach.
The fourth such attack was that the defendant claimed Dr Carnavas had adopted an argumentative approach to questions asked of him in cross-examination: T125.50. I do not accept that submission. Dr Carnavas was merely responding to a proposition which he did not accept. Furthermore, he was interrupted in the course of giving reasons for his view: T125.48; T126.1. In my view, the criticism sought to be made of him does not sit well where one of his relevant answers was interrupted and cut short by the cross-examiner interposing other questions: T126.3.
Such interruptions to the answers sought to be given by Dr Carnavas in cross-examination were not isolated instances: T126.1; T124.6; T126.40; T130.18; T131.27; 132.2; T133.4; T133.14; T135.39; T136.44; T137.8; T137.15; T137.24; T137.27; T137.47; T139.5; T141.20. Criticisms of his evidence must therefore be read and tempered in the light of those circumstances.
In exploring the opinions of Dr Carnavas, the defendant raised some general factors that might have influenced the occurrence of the plaintiff's accident which involved the theory that the plaintiff had lost control of his bicycle without a motor vehicle being involved: T121.1 - T125.
Those factors comprised the need to accommodate variable road surface planes (T121.12); tyre traction variability and adjustment issues depending on the angle of travel in relation to the road (T121.20 - T121.25); road surface irregularities that can lead to bicycle instability when crossing different road surface angles and planes (T121.27 - T121.32); contact with dirt road surface corrugations and potholes which can cause bicycle instability (T121.34 - T121.40); possible wheel to pothole contact whilst attempting to avoid other potholes present in the road surface (T121.42 - T121.48); riding into longitudinal tracks on the roadway (T122.11 - T122.14); the presence of dark shadows on the roadway disguising the presence of potholes to road users so that an unsafe course or pathway may have been chosen (T123.43 - T124.5); the presence of swale on the roadway, which I take to mean a low lying depression on the road surface which might cause a bicycle rider to ride on an unsafe path between the swale and a pothole.
Dr Carnavas discounted the possibility that the gradient of the roadway was a factor involved in the accident because he understood the accident to have occurred on a reasonably flat portion of the roadway, which I accept: T124.21.
Whilst all of the factors described in paragraph [270] above might have been relevant considerations for analysing the events of the accident, the difficulty with invoking such possibilities as explanations for the accident is that they involve speculation that is unsupported by evidence, in circumstances where there is another credible theory that requires consideration, namely that the rear wheel of the plaintiff's bicycle had been struck by a motor vehicle from behind, and where that theory was supported by the plaintiff's evidence and an appropriately qualified expert analysis.
Dr Carnavas was questioned about some variables within the theory that a motor vehicle had struck the plaintiff's bicycle. One such variable was the differences in height of a sedan bumper bar and the height of a bumper bar on a sports utility vehicle ("SUV"). The difference in height was about 60mm or about 2.5 inches: T126.4 - T126.8.
In either case, Dr Carnavas agreed, that if impact with the bicycle had occurred from behind, the resultant force would be in a downward direction because of the curved geometry of the bicycle wheel, and where impact from behind would result in a downward thrust component: T126.10 - T126.20. Dr Carnavas agreed that if the impact was at a height of 60cm from the ground (which was within the array of a range of bumper bar heights), there would be a minimal force, but he also said that the extent of the force would be dependent upon the unknown factor of the relative speed at which the vehicle had hit the bicycle: T126.22 - T126.34. That unknown variable makes empirical analysis difficult.
Dr Carnavas identified a range of heights of possible vehicular contact as being between 34cm and 60cm above road height, depending upon vehicle type: T125.25 - T126.23.
Dr Carnavas further qualified his view as to the possible contact height by drawing attention to his assumption that the impact did not occur directly, that is with the front of the vehicle being perpendicular to the rear wheel of the bicycle.
If I read the evidence of Dr Carnavas correctly, he has assumed that the collision was more likely to have been oblique in nature, because perfect perpendicular alignment of the front of the vehicle to the more narrow bicycle wheel was a very unusual prospect: T126.40. Dr Carnavas was careful to avoid an invitation from the cross-examiner to speculate, beyond his qualifications, upon whether the plaintiff's injuries might have been different in the event of an oblique collision: T128.33.
However, in analysing the physics of a collision from behind, Dr Carnavas agreed that a resolution of forces from such a collision would cause the cyclist to travel backwards as the bicycle continued forward after such an impact: T128.43 - T128.50. However, Dr Carnavas did not agree that the inevitable result of such a collision was that the cyclist would fall onto the bonnet of the vehicle: T129.3. He went on to explain this in the following terms: "Q. What would he do? A. It depends on the relevant speed f (sic) the vehicle and the bicycle. If the impact is insufficient for the bicycle, or the rider of a bicycle to fall backwards, which it may be, then the contact of the vehicle with the bicycle will serve to destabilise the cyclist and the cyclist will then fall on his destabilisation rather than on the forward thrust of the vehicle, and I've provided an example of that in my supplementary report, as per a video and some still frame images. A cyclist doesn't necessarily fall onto the bonnet of a vehicle, he may be destabilise (sic) and fall onto the roadway." [T129.5 - T129.13]
Dr Carnavas explained his evidence by reference to the operation of the force of gravity, which would determine how the plaintiff would fall once an impact with a vehicle had occurred: T129.20 - T131.20. The evidence identified in the above extract was later revisited in re-examination.
Dr Carnavas was asked to consider a scenario of the plaintiff having been thrown or projected forward over the handlebars in the accident, and the circumstances in which this could occur. Dr Carnavas explained that if in the events of the accident there had been an additional component of a change in the direction of the steering the bicycle in the dynamics of the collision that involved a turning of the front wheel, this would very dramatically change the motion of the cyclist on impact, so that the cyclist would then go over the handlebars: T130.16; T142.40.
Dr Carnavas justified his conclusion that the impact with the motor vehicle was at a relatively low speed because of the degree of damage to the bicycle, meaning that a higher speed of impact would have been expected to have produced more extensive damage evidenced by marks on the bicycle: T132.20 - T132.29; T133.4; T134.31; T134.45 - T135.11. The assumption of a low relative speed of the vehicle was identified as being less than 10kph: T133.23 - T133.26.
Dr Carnavas fairly agreed that a potential variable in his considerations could be that a (rear) bicycle wheel may become buckled by striking a pothole: T133.35; T135.39. He also agreed that amongst the other variables that arose for consideration were the possibility of loss of control of the bicycle on a bend (T134.13); that it was common for people to lose control of bicycles on rough surfaces (134.15 - 134.21); and there was higher plausibility of a loss of control whilst navigating through a "field of potholes" with speed being a factor: T134.21 - T134.28. There was no direct or observational evidence to support an inference to those effects.
Dr Carnavas fairly agreed that damage to the bicycle could be different and possibly less extensive where the "road was muddy and dirt (sic) and would have had a much lower coefficient of friction": T134.34. However, for reasons that will be made plain, the difficulty with that assumption is that it was not made out on the evidence, either directly, or by way of reasonable inference.
The only evidence from persons at the scene who described the roadway said it was a dry clay, loose dirt and rock surface (in the observation of Mr Bessabava at T171.24 - T171.38) and as being wet with many tyre marks on the roadway (as stated by Mrs Cordin at T104.40 - T104.46). In contrast to Mrs Cordin's evidence in that report, the police records described a dry surface: Exhibit "5", Tab 5, pp 62 - 63.
The assumption within the question put to Dr Carnavas of the road having been muddy, as posed by the cross-examiner, has not been made out on the evidence. I consider it more likely that it was the part of the dirt road that was around the pothole where the plaintiff's face was immersed that was wet. On the description given by Mr Bessabava, which I accept, that portion of the road was more likely to have become wet due to the plaintiff's face being immersed in that pothole, with associated rescue activity, or perhaps made wet from passing traffic possibly traversing a pothole containing water. There was no evidence that the plaintiff's bicycle had encountered a wet or muddy portion of the roadway either before or after the plaintiff had fallen. In coming to that view, I have not overlooked the appearance of dried dirt on the plaintiff's rear bicycle wheel as shown in Exhibit "A", Tab 1, pp 8 - 10, which Dr Carnavas described as dirt appearing in places where it would normally accumulate during riding: Exhibit "A", Tab 1, p 3, sub-paragraph 8 of par 3.1. Since this was not the subject of explanatory evidence I consider it to be unsafe to proceed to interpret or infer the origins of such appearances: Blacktown City Council v Hocking [2008] NSWCA 144.
The defendant explored with Dr Carnavas the significance of the extent of the damage observed to have been sustained to the bicycle, and obtained the concession that the extent of the damage to the bicycle would have depended upon the angle at which the bicycle had struck the roadway: T134.39.
However, Dr Carnavas was cautious about agreeing with that proposition because if the bicycle had struck a pothole, causing the plaintiff to lose control and fall to the ground, as postulated by the cross-examiner, "normally the bike would be rubbing on the ground, some aspect of the bicycle would be rubbing on the ground, and there would normally be marks associated with that on the bicycle": T134.41 - T134.42. Dr Carnavas gave emphasis to that point by stating a bicycle moving on or across the ground in the manner postulated would be expected to be sliding or bouncing along the ground, particularly if high speed had been involved: T135.1 - T135.11.
It is of some significance that no such marks consistent with that process had been observed on the plaintiff's bicycle.
Dr Carnavas was asked to concede that the buckle he had seen on the rear wheel of the bicycle could have been caused by the bicycle going into a pothole. Whilst he was developing an answer to the effect that there were a number of factors that could cause a wheel to buckle, his answer was interrupted and cut short by a further question he was asked in cross-examination: T135.39.
When the cross-examiner introduced the notion of buckling of the wheel being due to the wheel bouncing against the weight of the rider whilst in the pothole, Dr Carnavas stated that such a process would not account for the downward displacement of the axle of the rear wheel in the bicycle frame, which was the condition he had observed on his inspection of the bicycle, and when pressed he stated that in the postulated circumstances, such a downward axle displacement was not possible: T136.1 - T136.22. Clearly, that was a pivotal piece of evidence.
Significantly, Dr Carnavas agreed that his finding of the downward displacement of the rear axle (in conjunction with the buckled rear wheel) was the only matter he found which was supportive of the theory that a motor vehicle had stuck the plaintiff's bicycle: T136.27.
Dr Carnavas was asked to consider the time interval during which a vehicle travelling at a relatively low speed would have to have been in close proximity to the plaintiff before a collision would occur. Whilst Dr Carnavas was in the process of developing his answer, which, as far as it was permitted before interruption, was to the effect that the duration of time did not matter as long as there was contact between the vehicle and the back wheel of the bicycle. However, his answer was interrupted and cut short by another question interposed from the cross-examiner. That evidence was as follows: "Q. This low relative speed accident that you assume would involve a motor vehicle being close to the bike rider for some time? A. It would have to touch the back wheel, it still wouldn't matter the time interval of the vehicle -- it would require contact of the motor vehicle to the back wheel, whether or not the vehicle was behind the bicycle for some time - Q. You don't know? A. No." [T136.40 - T136.47]
The component of the question that specified "some time" was vague, and did not differentiate between the variable assumptions of a constant speed or an accelerating speed of such a vehicle. Dr Carnavas was justified in seeking to give an explanatory answer before it was truncated by a statement from the cross-examiner masquerading as a question.
From the way that evidence stands, I consider that Dr Carnavas was conveying the proposition that the duration of time during which there was proximity of the vehicle to the rear of the bicycle before the argued impact was both unknown, and was in any event immaterial. I take that view in light of the context of the evidence that followed, which was along the lines explaining that the rider of a bicycle in the assumed circumstances would probably have, but may not necessarily have heard a vehicle approaching from behind: T136.49 - T137.8.
Dr Carnavas was asked questions as to what response might have been expected of a prudent bicycle rider in choosing a path to take on the potholed roadway: T137.10 - T140.17. In essence that topic was a matter of fact to be determined in light of the assumed circumstances, as was acknowledged by Dr Carnavas, and was dependent upon what the bicyclist was doing at the time: T140.19. In my view, that evidence was more relevant to the issue of alleged contributory negligence, which will be addressed as a separate question in due course.
On the fundamental question of whether the downward displacement of the rear axle of the bicycle wheel could have resulted from the rear wheel of the bicycle impacting with a pothole as suggested by the defendant, Dr Carnavas gave the following evidence: "Q. I want to assume that contrary to your opinion that downward displacement of the axle could be caused by rear wheel impact on a pothole, then the pattern of damage would be entirely consistent with that event? A. If I assumed that the downward displacement of the axle could be caused by a pothole, yes, but I don't. HIS HONOUR Q. Is there a reason why you don't? A. On a bicycle the rear axle is clamped in place and any movement upwards is not going to displace the axle downwards. When you've hit a pothole your force is going downwards and the bicycle wheel, if you like, is forced back up into the frame. There's no reaction, if you like, if the back wheel lifts off the ground because there is a frictional force which is clamping the back wheel in place, so it doesn't fall down on one side as a result. For the back wheel to come down on one side you have to overcome the frictional force that's due to the clamping arrangement of the back wheel. And that's not necessarily encountered in all the riding. POULOS Q. Have you conducted any experiments to validate that proposition? A. I have ridden bicycles Q. No, experiments are different from riding a bicycle isn't it? A. A distinctive experiments to look at that behaviour? Q. Yes? A. No, I haven't. Q. This is entirely theoretical on your part? HIS HONOUR: No, he says he has experience riding bicycles. POULOS: I have experience riding a bicycle too but I'm not professing to be a scientist. HIS HONOUR: He's identified the basis of his opinion as a rider, that is his experience as a rider. POULOS Q. But not as a scientist, is that right? A. I have in my experience never encountered downward displacement of a rear axle in a bicycle due to normal riding. Q. Normal riding? A. Normal riding, yes. Q. If you ran over a series of potholes you wouldn't know what will happen, do you? A. No, I have ridden over a series of potholes, but again -- Q. You have not run over a series of potholes? A. I'm sorry? Q. You have not run over a series of potholes, have you? A. In my experience as a cyclist? Q. Yes. A. Yes, I have. Q. Did you fall over? A. No I didn't. Q. You fell over many other times for lesser reasons than that? A. Usually with an external force, but I have fallen off of my own accord, certainly." [T140.20 - T141.36]
In his evidence given in re-examination, Dr Carnavas further explained his view of the impossibility of a downward displacement of the rear axle if a bicycle had run over a pothole. That evidence was as follows: "Q. Doctor, when you ran over a series of potholes did the axle get displaced downwards? A. No. Q. It's not possible is it? A. No. Q. Why not? A. Again as I've just discussed with his Honour, there is a clamping force of the quick release lever, or the quick release skewer, in parts on the rear axle clamming (sic for clamping) it into the frame and that is sufficient to hold the axle in place. During normal riding there is no downward force on the rear axle, well there's reaction force, but because of the weight of the rider the bicycle wheel has been forced upwards in the dropouts. When the bicycle leaves the road there is no downward force separating the axle from the frame or pushing it downwards in the frame. Q. In order for the axle to be displaced downwards there needs to be a force from above the axle? A. The circumstances that I saw with the right hand side of the axle displaced downwards if you look at the whole wheel, okay, so in order for it to be displaced downwards on the right hand side you would need to have a turning moment about the wheel, or a downward force. So you could apply force to the side of the bottom if the bicycle was tilted over in this manner, and a force was imparted -- HIS HONOUR: Just noting for the transcript, to the right, that you were indicating twisted over. WITNESS: That's right. You have to apply a force to the back wheel that would pull the axle downwards with sufficient force to overcome the friction." [T141.40 - T142.20] [Emphasis added]
In further evidence given in re-examination, Dr Carnavas also explained the factors that influenced how a cyclist might fall from a bicycle following an impact by a vehicle from behind at a low relative speed. He stated that if there been an element of steering input from the cyclist that turned the front wheel to the side, this would very dramatically change the motion of the cyclist, and he would then go over the handlebars of the bicycle: T142.24 - T142.41.

[29]

Opinions in first report by Mr Griffiths - 29 January 2015

It is convenient to commence the examination of the first report of Mr Griffiths by identifying the assumptions which based his opinions. Mr Griffiths had assumed the road surface in question was "wet, muddy and potholed", that the plaintiff "was descending a hill when something happened which caused him to fall from his bike", and that he was found "lying on the roadway face down in the mud, with his bike a few metres" away: Exhibit "5", Tab 6, p 66.
The description adopted by Mr Griffiths that the plaintiff had been found face down in the mud was at a slight but material variance with the documentation he had been given, which included the description that the plaintiff had been "found face down in a pothole": Exhibit "5", Tab 6, p 78. In the body of his report, Mr Griffiths did not identify the source of his assumption that the road surface was muddy, which he relied upon in that part of his report. However, in the conclusions section of his report, Mr Griffiths identified the source of his assumption that the plaintiff "described falling off his bike on a loose muddy surface when he encountered potholes on the roadway" as being a description given to ambulance officers: Exhibit "5", Tab 5, p 105.
An examination of the ambulance documentation (Exhibit "5", Tab 1, pp 1 - 13) does not support the accuracy of that assumption made by Mr Griffiths. Whilst the ambulance report described the plaintiff as having "fallen off his pushbike" and that he was "covered in dirt, mud and is wet" there is no description in the ambulance report of the plaintiff having ridden on a loose muddy surface before falling off his bicycle when he encountered potholes on the roadway. In my view, Mr Griffiths' interpretation involves overstatement.
In my view, there are three obvious obstacles to placing reliance on the cited statement by Mr Griffiths. First, insofar as Mr Griffiths has summarised the content of the ambulance report, it must be recognised that portion of the report was a consolidated summary prepared by someone else, not Mr Hartley, and it should therefore be seen as being a secondary document that must be treated with caution with regard to the use to which Mr Griffiths and the defendant sought to make of the document. Secondly, I consider the cited statement by Mr Griffiths to be an unreasonable and an overstated interpretation of the content of the ambulance records, particularly the claimed description of the plaintiff being covered in dirt and mud. Thirdly, the stated interpretation advanced by Mr Griffiths was not reflected in any of the eyewitness accounts of Mr Bessabava, Mr Marshall, Mrs Cordin, or Mr Hartley.
On the contrary, Mr Bessabava described only the plaintiff's face as being partly immersed in the water filled pothole: T172.11 - T172.32. On that description, it would certainly be reasonable to infer the plaintiff's head or face was wet, and that his face and his facial wound had mud on it, as was observed in the medical materials tendered, but the cited statement by Mr Griffiths went much further in its emphasis, and I consider it to have been without an adequate factual foundation.
Mr Hartley said when he arrived on the scene, he observed the plaintiff's face was covered in mud: T79.2. In light of the evidence of the other witnesses at the scene. Mr Hartley's evidence to the effect that the plaintiff was covered in mud (at T79.18) was from the context, obviously referring to the plaintiff's face. I do not take the expression "covered in mud" literally.
Mr Griffiths had been supplied with a copy of the police report in relation to the plaintiff's accident: Exhibit "5", Tab 6, p 68. That police report described the road surface at the time of the accident was being "sealed" and "dry": Exhibit "5", Tab 5, p 63. Mr Bessabava had also described the condition of the road as "dry": T171.31.
Mr Griffiths' description of the road surface as being wet and muddy was at odds with the police report and the evidence of Mr Bessabava. He did not seek to reconcile those comments with the contrary information contained in the cited portions of the police report and any account given by eyewitnesses. It appears from Mr Griffiths' reports that he had not been provided with any evidence from Mr Bessabava, which places the court in a much more advantageous position than Mr Griffiths to more accurately assess the factual circumstances.
Mr Griffiths visited the general area of the accident site on an unidentified date in December 2014, which was well after the road surface had changed after it had been graded: Exhibit "5", Tab 6, p 78. It appears that he had identified the general area from photographs which he stated had been supplied by the plaintiff: Exhibit "5", Tab 6, p 86. He described the area in the following terms: "A combination of Google Earth aerial views and Spatial Information Exchange (SIX) views of a location approximately 1km north of the intersection of Minyon Falls Road with Upper Coopers Creek Road, Repentance Creek, have been reproduced adjacent. The roadway was visited in December 2014. Using photographs supplied by the plaintiff, the site of the incident was identified. The specific site was on a long steep downhill section of gravel road. At the time of the site visit, the section leading to Minyon Falls picnic area was in poor condition^ although it could be easily negotiated by two wheel drive cars selectively using the best portion of the roadway. The section of roadway below the intersection, where the incident occurred, was in good condition without any evident potholing etc. It had presumably been graded and levelled in the two+ years since the incident of September 2012." [Exhibit "5", Tab 6, p 86].
That description was at variance with the description of the roadway where the accident occurred as being levelled out or flat at the end of the slope or gradient, as had been assessed by Dr Carnavas (T124.21), who had been taken to the accident scene by the plaintiff: T118.29; T118.50. The differences as to the nature of the gradient in these descriptions requires reconciliation given the measurements taken by Dr Carnavas. I consider that the circumstances in which the plaintiff and his wife provided assistance to Dr Carnavas to show him the location of the accident indicates that his inspection was more probably than not undertaken at the location where the accident occurred.
Mr Griffiths was also supplied with a number of photographs of the plaintiff's bicycle and the area of the accident. He incorporated copies of those photographs, and some other photographs, into his report. In the captions he applied to copies of the photographs of the plaintiff's bicycle, he identified the high positioning of the seat in relation to the handlebars: Exhibit "5", Tab 6, p 72, photographs numbered 6 and 7.
Mr Griffiths took some of those photographs himself. In the caption of two such photographs of the rear wheel of the plaintiff's bicycle, he commented that "no gross deformation or evident damage" could be seen on the wheel or the axle: Exhibit "5", Tab 6, p 74, photographs numbered 10 and 11. In a further two photographs, Mr Griffiths applied the caption: "When the wheel was spun, there was some minor misalignment. That is, the wheel spun freely, but had less than 10mm left-right motion … relative to the brake calipers": Exhibit "5", Tab 6, p 75, photographs 12 and 13.
The adjectival descriptions "gross" and "minor" were not defined empirically.
On his inspection of the plaintiff's bicycle, Mr Griffiths made the observations that: "Both wheels could be spun freely" and that there were no observable radial variations, by which I infer that he meant no radial buckling: Exhibit "5", Tab 6, p 76. Those observations were qualified by his comment that the "rear wheel had some moderate (less than 10mm) left/right movement as it spun when measured laterally adjacent to the brake calipers": Exhibit "5", Tab 6, p 76.
Mr Griffiths also described the latter observation as an "eccentricity" or a "misalignment" that could be "rectified by adjusting the spoke tensions (truing)": Exhibit "5", Tab 6, p 76. I take Mr Griffiths' descriptions to refer to a buckling of the rear wheel. Whether or not the misalignment could be trued or rectified was irrelevant.
In the reasoning and deduction section of his report, Mr Griffiths concluded there was no marking evident (on the wheel) to allow identification of whether the observed "misalignment" had "crept in through wear and tear" or "whether the wheel had been subjected to some kind of impact, such as hitting potholes whilst laden with the rider's weight": Exhibit "5", Tab 6, p 76. In expressing that view, Mr Griffiths seems to have discounted the claimed mechanism of impact with a vehicle from behind as being the cause of the misalignment.
Instead, Mr Griffiths opted for a theory that the most probable explanation for the described misalignment or lateral eccentricity of the rear wheel to occur was heavy impact with a pothole.
His reasoning in that regard was as follows: "Whilst there are many possible ways in which such a misalignment could occur, an impact with closely coupled mass of the rider will result in the biggest load. The riders mass is most closely coupled in vertical drops, with the riders mass transferred vertically through the seat post. In horizontal impacts (front or rear), the rider tends to slide off the seat. This occurs because there is limited restraint for coupling. In the incident under review here, the most probable explanation for the lateral eccentricity of the real- wheel is heavy impact with a pothole. A 'focussed' impact with the leading portion of a vehicle's bumper would:- - at a minor speed variation, have tended to push the bike forward from under the rider, but the rider may have been able to maintain his posture on the bike, - at a moderate speed, have pushed the bike forward, so the rider fell rearward onto the vehicles front (bonnet), - at a high speed differential, have caused the rear of the rider to impact heavily with the car front resulting in significant injury to the rear of the rider's anatomy. A focussed impact on the bikes rear wheel would have been likely to cause localised failure of the rim, ie an obvious local buckling indentation." [Exhibit "5", Tab 6, p 76].
It is obvious from the content of his report, that Mr Griffiths had access to a greater volume of the Lismore Hospital records than that which had been tendered in evidence in the proceedings: Exhibit "5", Tab 6, pp 89 - 97. Mr Griffiths used those records to prepare a diagrammatic summary of the plaintiff's injuries: Exhibit "5", Tab 6, p 98; Appendix to these reasons.
A question arises as to what should be inferred from the accident details in the notes available to Mr Griffiths when making findings as to what had occurred in the events of the accident.
As a biomedical engineer, Mr Griffiths was qualified to make deductions and to form opinions concerning the nature of the forces that had been applied to the plaintiff's body in the events of the collision. He did so in the following terms: "MICHAEL CORDIN's helmet shows that a load was applied frontally and downwards over the front section of the helmet, causing localised crushing. This gives a good indication of the direction of the force that was applied to MICHAEL CORDIN's head and neck. Whilst he had facial injuries consisting of lacerations, swelling and abrasions, no skull fractures or brain injuries were detected by medical diagnoses. His superficial facial injuries extending from laceration of the left forehead down to a laceration of his lower lip are a good indication that a primary area of contact with the roadway after departing from his bike was facial and front of head. The crushing of the front aspects of the helmet, and the superficial facial injuries, would have both provided a degree of energy absorption, which appears likely to have reduced the forces applied to his skull and brain, so that there were no detectable injuries in those more critical regions. The medical records indicated a possibility of some central cord compression at the C3/4 and C4/5 region, however, this interpretation was uncertain because he had congenital fusion of C6 and C7, and degenerative change at the anterior atlanto-axial joint. A subsequent medical note reports that the mild degenerative disc and facet atrophy with no focal cord lesion could explain MICHAEL CORDIN's presenting symptoms at hospital. There was evidence that a downward compressive load was applied through his head to his spine by way of the anterior wedging compression style fractures extending from his 6th to his 8th thoracic vertebrae. The pain, swelling, bruising and abrasions to both wrists are strong physical evidence that he stretched his wrists forward in a conscious effort to break his fall as he came from his bike and was thrown forward onto the roadway. That is he was 'conscious' and actively extended his arms in an attempt to 'break' his fall. The abrasions to both knees are consistent with a forward fall, leading with wrists and knees. A review of the medical records from on-scene Ambulance, Lismore Hospital, and Princess Alexandra Hospital (Brisbane) indicated there was no injury sustained to any rear part of his anatomy. That is, he did not have any injury to the rear of his head, back, buttocks, etc which could be consistent with impact from the rear by a motor vehicle." [Exhibit "5", Tab 6, p 99].
In analysing the forces at play, Mr Griffiths did not identify the mass of the plaintiff's body. Instead, he used an assumption of a typical adult male rider including the weight of the bicycle, at "95 + kg": Exhibit "5", Tab 6, p 104 line 25. There was no evidence which co-related the weight of the plaintiff to that assumption.
It is plain from the above extract, that for his opinion, Mr Griffiths relied heavily on the fact that the plaintiff had not sustained injuries to the back of his head, back, or buttocks. It is also plain that only limited conclusions as to resolution of forces could be derived from the estimate of the plaintiff's weight as assumed by Mr Griffiths. The hospital notes may have been a more precise source of information as to the plaintiff's mass.
Mr Griffiths did not include in his analysis the mechanism identified by Dr Carnavas of an oblique angle of impact by a vehicle on the rear wheel of the bicycle, and the possibility of a change in steering direction of the bicycle, which could have resulted in the plaintiff being thrown forward over the handlebars.
Mr Griffiths then went on to consider what he referred to as the crash dynamics of the plaintiff's accident. In that context, he identified two competing descriptions of the accident. He identified the source of the first description as being from the ambulance officers, which "described the rider encountering potholes and falling forwards off his bike", and the second description having been provided by the plaintiff later, "where he reported he was struck from the rear by a motor vehicle, where the impact from the rear caused him to be thrown forward onto the roadway": Exhibit "5", Tab 6, pp 100 - 101.
In the opinion section of his first report (Exhibit "5", Tab 6, pp 101 - 105) Mr Griffiths posed and addressed two essential questions. The first question was: "Could the damage to the bike be consistent with an impact from a motor vehicle". The second question was: "What was the probability of the crash occurring in the manner subsequently described by Michael Cordin".
In addressing the first question, Mr Griffiths placed reliance on his assessment of wheel damage, and his finding that the wheel could be freely spun, the absence of visible damage to the wheel rim, and the lateral eccentricity of less than 10mm in the wheel movement. In doing so, he did not seek to reconcile the findings by Dr Carnavas.
After identifying possible wear and tear, or impact of the wheel with a pothole as possible explanations for that described eccentricity, and after referring to some photographs, Mr Griffiths went on to address a consideration of the forces that would have been at play. His opinions were expressed in the following terms: "As is illustrated …, in horizontal impacts, front or rear, the rider's mass is not well coupled to the bike so that the rider tends to slide forward or rearward off the seat. A 'focussed' impact with the leading portion of a vehicles bumper would: - - at a minor speed variation, have tended to push the bike forward from under the rider, but the rider may have been able to maintain his posture on the bike, - at a moderate speed, have pushed the bike forward, so the rider fell rearward onto the vehicles front (bonnet), - at a high speed differential, have caused the rear of the rider to impact heavily with the car front resulting in significant injury to the rear of the rider's anatomy. A focussed impact on the bikes rear wheel would have been likely to cause localised failure of the rim, ie an obvious local buckling indentation In the case of a vertical impact of a tyre with a pothole, then the resistive forces are in the order of magnitude of the inertia of the bike and rider, that is their mass which, for an adult male plus bike, is deduced to be typically in the order of say 80 + 15 = 95 + kg. For a horizontal impact, where the rider's mass/inertia is less well coupled, then the main resistive inertia/mass is the mass of the bike which, for this style of bike, is typically less than 15 kg. That is, the ratio of inertia resistance for a vertical impact compared to a horizontal impact is more than 6 times greater." [Exhibit "5", Tab 6, p 104].
In my view, those opinions are problematic, as will be explained in the portion of my reasons where the conflicting expert evidence is analysed and resolved.
In addressing the second question, namely, the probability of the accident having occurred in the manner described by the plaintiff, Mr Griffiths stated: "By reference to these photographs, it is deduced that the incident could not have occurred in the manner subsequently described by MICHAEL CORDIN, because if his bike had been struck from the rear, it would have tended to have been accelerated forward relative to his riding position and the fundamental laws of physics meant that he would have fallen backwards onto the front or bonnet of the striking vehicle, and then possibly slid off the vehicle as it braked, with initial contact with the roadway most likely being led by his lower limbs and buttocks. To fall forward off the bike onto the roadway, which his injury pattern clearly shows he did, then the bike needed to have stopped or suddenly slowed relative to the rider, so that the rider has then gone forward off the bike. This is what would occur if the wheels of the bike had struck potholes, and slowed and/or lost traction, so that the rider has then been propelled forward relative to the bike until he has come into contact with the road surface. The rider's pattern of injuries, particularly of the upper facial impact with the road surface, and sprained wrists and grazed knees, is most consistent with being thrown forward onto the roadway. The forward motion he described, and his pattern of frontal injuries are not consistent with being struck from the rear by a motor vehicle." [Exhibit "5", Tab 6, pp 104 - 105].
On the basis of those analyses, Mr Griffiths concluded that the incident claimed by the plaintiff "would be contrary to the laws of physics, that is, the incident cannot have occurred in the manner described" and he also stated that the event of a "rear impact from a vehicle in the manner described was not possible": Exhibit "5", Tab 6, p 105.
In his first report, Mr Griffiths therefore concluded that the "most probable version [to account for the accident was of the plaintiff] falling off the bike on a potholed section of a muddy and wet gravel road": Exhibit "5", Tab 6, p 105.

[30]

Opinions in second report by Mr Griffiths - 2 March 2015

On 2 March 2015, Mr Griffiths prepared a commentary report in response to the report of Dr Carnavas dated 2 April 2014.
That commentary (at Exhibit "5", Tab 6, p 124) drew attention to a number of aspects of the first report of Dr Carnavas, as follows: 1. Mr Griffiths noted that the "significant buckle" in the rear bicycle wheel as observed by Dr Carnavas was not quantified; 2. Mr Griffiths considered that it was speculative to attribute the downward displacement of the rear axle to an assumed collision with a motor vehicle, arguing that it could have occurred on other occasions when the bicycle was handled after the crash; 3. Mr Griffiths engaged in a speculative discussion about the potential for speed to be a factor as a cause for the plaintiff's accident, having regard to the damage seen on the bicycle after the accident; 4. Mr Griffiths again raised the argument to the effect that the analysis by Dr Carnavas was "contrary to the laws of physics" because of Mr Griffiths' own analysis of the relative distribution of the rider's mass between the front and the back wheels, thus making the rear wheel more prone to damage when passing over a pothole.
In his second report, Mr Griffiths therefore concluded that he saw no reason arising from the report of Dr Carnavas that would cause him to amend or to change his earlier opinions: Exhibit "5", Tab 6, p 125.
Given the disparity in the views of the respective experts, it is necessary to engage with and to evaluate those disputed matters, in order to determine which aspects of the conflicting expert evidence should be preferred and which aspects should not be accepted.
In final addresses, senior counsel for the defendant indicated that his submissions on the significance and the effect of the expert evidence were necessarily constrained because of the effect of a ruling made during the hearing, which had the effect of excluding a yet to be finalised further report from Mr Griffiths, and which precluded the calling of oral evidence from Mr Griffiths.
This was identified as an important matter for which the defendant was entitled to reasons. At the time the ruling was made, those reasons were deferred until delivery of this judgment on account of time constraints that impacted on the available hearing time in an already extended sittings on circuit, including extended sitting hours. As indicated at the hearing, those reasons will follow my findings on the issues for decision, and will be set out before dispositive orders are made: T217.3 - T217.4.

[31]

Dr Carnavas' second report responding to Mr Griffiths' opinions

On 17 March 2015, after being provided with copies of the reports of Mr Griffiths, Dr Carnavas provided a supplementary report which comprised a commentary on the reports of Mr Griffiths: Exhibit "A", Tab 2.
In that report Dr Carnavas summarised his earlier report by reiterating his comments on his inspection of the plaintiff's bicycle, the plaintiff's helmet, the location of the accident, his discussion or analysis, and his conclusions that there was significant damage to the rear wheel in the form of a substantial buckle, with downward displacement of the rear wheel axle, which resulted in the rear wheel being jammed on the right side of the brake pad, preventing the wheel from rotating, making the bicycle unrideable. He reiterated his conclusion that the damage was consistent with the bicycle having been hit from behind by a motor vehicle: Exhibit "A", Tab 2, pp 1 - 3.
Dr Carnavas then proceeded to review the successive reports of Mr Griffiths. In the course of that review, he identified a series of numerous factual matters in respect of which there was dispute or in respect of which different interpretations were open on the underlying facts.
In that regard, Dr Carnavas identified 11 items extracted from the first report of Mr Griffiths (Exhibit "A", Tab 2, pp 3 - 11) and 4 items identified from the second report of Mr Griffiths: Exhibit "A", Tab 2, pp 12 - 15.
The series of the 11 items Dr Carnavas identified for comment in Mr Griffiths' first report were as follows: 1. Matters of assumption had been derived by Mr Griffiths from the ambulance report which Dr Carnavas had not been given. The assumption by Mr Griffiths that the plaintiff had fallen off his bicycle, is not determinative of that fact, and requires a separate evaluation. Furthermore, anecdotal comments about Mr Griffiths' attendances at other crash sites with other ambulance officers could not be determinative of whether the ambulance report in this case was determinative of whether the plaintiff had said to the ambulance officers he had fallen off his bicycle; 2. Mr Griffiths had transcribed portions of the hospital notes relating to the plaintiff. Dr Carnavas had not been supplied with those documents. Therefore, understandably, Dr Carnavas could not make any comment on those records, which will shortly be the subject of a separate analysis; 3. Dr Carnavas noted that the captioned photographs supplied by Mr Griffiths were included in the report of Mr Griffiths without relevant commentary. Commentary by Mr Griffiths on the plaintiff's seat position and the bicycle seat and cover as shown on the photographs only became relevant if it is found that the plaintiff was sitting on that seat immediately before the accident; 4. Mr Griffiths made the suggestion that an impact, together with the closely coupled mass of the rider, would result in a vertical transfer of the load through the seat post of the bicycle. That view only becomes relevant to consider if it was found that the plaintiff was seated on that seat immediately before his fall; 5. Mr Griffiths expressed the opinion that the "lateral eccentricity of the rear wheel" was most probably explained by heavy impact with a pothole. That view would only become relevant if there was evidence to support a heavy impact with a pothole. However, in his reports, Mr Griffiths had not engaged with Dr Carnavas' view that an impact with a pothole would not cause downward displacement of the rear wheel axle. This was of some significance where Dr Carnavas gave a clear explanation for that view; 6. Mr Griffiths' examples of possible outcomes where a motor vehicle hit a bicycle from the rear did not cover all potential scenarios or outcomes. In that discussion Dr Carnavas identified circumstances that had not been raised or discussed in the reports by Mr Griffiths, namely that a cyclist could, after motor vehicle impact to the rear wheel, fall to the ground and to the right front of the bicycle, or other possible outcomes, where the velocity of impact was insufficient for the rider to fall rearwards. Dr Carnavas also identified circumstances in which a rear impact from a motor vehicle may cause a bicycle rider to fall in an unpredictable manner. Mr Griffiths has not engaged with, or answered, those arguments raised by Dr Carnavas. 7. Mr Griffiths' view was that a focussed impact on the rear bicycle wheel would have been likely to cause failure of the rim of the wheel, and indentation. Dr Carnavas explained that the opinion of Mr Griffiths would only be valid if the "yield stress" of the rim material was exceeded by the impact. However, Dr Carnavas identified and explained circumstances where an impact would not exceed the yield stress of the rim, and that a lateral wheel buckle, as was found, could have resulted from only a small lateral force. He also noted that the structure of a mountain bike wheel meant that the damage threshold was higher, and the more substantial and inflated tyre on such a bicycle would have offered more protection, so that a low velocity impact could plausibly cause destabilisation for the rider, thereby causing a fall. Mr Griffiths' reports contained no answer to those views; 8. Mr Griffiths' analysis of the absence of any injuries to the rear of the plaintiff's body was not definitive because in the assumed circumstances, a rider may not necessarily fall backwards. Mr Griffiths' reports gave no answer to that argument; 9. Mr Griffiths has introduced an apparent contradiction in his analysis of the damage to the rear wheel of the bicycle by buckling. In my view, it only becomes necessary to analyse that argued contradiction if it is found that the plaintiff was sitting on the bicycle seat at the time of the fall, as this re-engages the discussion on "mass coupling" which was introduced by Mr Griffiths; 10. Mr Griffiths' statement of opinion that, in essence, the accident "could not have occurred in the manner" described by the plaintiff, relying on the fundamental laws of physics for that statement, did not engage with Dr Carnavas' contrary views in which he identified some scenarios in which a rearwards fall postulated by Mr Griffiths following a rear impact was not the only analysis. This was because of difficulties in predicting how a rider would fall in view of the many various factors at play. There was no answer from Mr Griffiths concerning the importance Dr Carnavas placed on the absence of front end damage to the bicycle, leading him to conclude that pothole impact was not the most probable cause of the incident; 11. Mr Griffiths invoked an assumption of a "loose muddy surface" (Exhibit "5", Tab 6, p 105 line 21 and p 122 line 26) as having been a history provided to ambulance officers when there was no evidence for this, and instead, this appeared to have been an unsupported deduction reached by Mr Griffiths.
The series of 4 items Dr Carnavas identified in Mr Griffiths' second report were: 1. Mr Griffiths' unquantified statement that the plaintiff's rear bicycle wheel had a "significant buckle", by itself was an insufficient analysis as it did not take into account the combined effect of that buckle and the displaced position of the rear wheel axle, which had the effect of creating the rubbing on the rear right brake pad, as had been observed and described by Dr Carnavas. Mr Griffiths was not able to observe the effect of that displacement as it had been rectified by the process of Dr Carnavas' inspection beforehand; 2. Mr Griffiths' statement that the downward displacement of the rear wheel axle as observed by Dr Carnavas "can easily occur during handling if the lever is released" was speculative. This was because it did not explain why Dr Carnavas had to release the adjusting nuts on the axle mechanism by a number of turns to release the jammed wheel and displaced. Nor did Mr Griffiths' report contradict the statement by Dr Carnavas that it was not possible to manually close a quick release lever of the kind under present consideration if the adjustable axle nuts had been over-tightened into the state that he had found them. Nor was the defendant able to contradict the opinion of Dr Carnavas that the abnormal position of the rear wheel axle which he found could not easily occur during handling if the lever was released, as was suggested by Mr Griffiths. There was no answer from Mr Griffiths to Dr Carnavas' comment that it was "exceptionally improbable that this axle position could have occurred as suggested by Mr Griffiths during normal transportation or handling as significant forces would be required to achieve this axle position" which was uneven, comparing the left to the right side: Exhibit "A", Tab 2, p 13. The following diagram which Dr Carnavas included in that portion of his report assists the understanding of that point by identifying the structures involved: [Exhibit "A", Tab 2, p 13] 1. Mr Griffiths' suggestion, that the potential for dry abrasion damage to the structures of the bicycle by road contact was "greatly reduced" by the "reportedly wet and muddy" road surface, is not reasonably supported by the factual evidence. Furthermore, Mr Griffiths seems to have employed his anecdotal observations from other crashes to conclude: "Most often the bikes had negligible damage". Without a reasoned indication that those other observations arose from crashes in circumstances that were similar to the ones claimed by the plaintiff, that analogy has no evidentiary or probative worth: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588. Dr Carnavas stated that even if the accident occurred on a wet and muddy surface, if the incident had occurred due to a loss of control of the bicycle, he would have nevertheless expected there to have been more marks evident on the bicycle, such as scuffs, and on the extremities, namely the seat, handlebars, brake levers and the like. He stated that such extremity damage would have occurred even with muddy ground. That evidence was not contradicted; 2. The discussion by Mr Griffiths on the expected damage to the front end of the bicycle if it had passed over a pothole was dependent upon the distribution of the rider's mass as assumed by Mr Griffiths when he invoked the unidentified laws of physics for his argument. The need to engage with that portion of the opinion of Mr Griffiths, and the rebuttal by Dr Carnavas, only arises if the distribution of mass assumption made by Mr Griffiths is sustained by the evidence and the factual findings. Dr Carnavas made this point, amongst others, at Exhibit "A", Tab 2, p 14, at par 4(b).
In rejecting Mr Griffiths' conclusions, Dr Carnavas stated that he adhered to his original conclusions that the plaintiff's injuries and the damage to the bicycle were wholly consistent with a motor vehicle impacting the rear of the bicycle at a relatively low speed: Exhibit "A", Tab 2, p 15.
Dr Carnavas' reiteration of his earlier views was based on his observations that the products of his inspection of the bicycle revealed that the evident damage was limited to a substantial rear wheel buckle with downward displacement of the right side of the rear wheel axle, which had resulted in the rear wheel being jammed on the right rear brake pad preventing that wheel from rotating and making the bicycle unrideable. He considered that damage was consistent with the bicycle having been hit from behind by a motor vehicle, and that, in his opinion this was the most probable cause of the accident: Exhibit "A", Tab 2, p 15.

[34]

Location of the accident scene

In view of the defendant's contention that the plaintiff had ridden his bicycle downhill at an excessive speed, the location, gradient and topography of the accident scene need to be considered.
In the direction the plaintiff was travelling at the time of the accident, Minyon Falls Road had a general downhill gradient, as was described by Dr Carnavas: Exhibit "A", Tab 1, pp 4 - 5. In the text of the captions which Mr Griffiths applied to the photographs he took, he too assumed the accident occurred on a downhill section of the roadway: Exhibit "5", Tab 6, pp 81 - 85. The fact that there was a general downhill gradient is confirmed by the evidence of the plaintiff to the effect that whilst riding his bicycle immediately before the accident, he was "rolling" or "coasting" forward whilst using his brakes to slow down in order to negotiate potholes: T63.49; T64.2.
However, in my view, there is no sound basis in those general observations, for rejecting the plaintiff's description of the particular area of the accident scene as being at a place on the roadway where the hill or the descent had levelled out on the general downhill gradient: T37.41 - T37.46. I accept that the location of the accident scene had been correctly pointed out to Dr Carnavas, who made the observation that the gradient had levelled out at the place where the accident occurred: Exhibit "A", Tab 1, p 5.
I consider that the location of the accident scene, as was assumed by Dr Carnavas, was more reliably identified to him, compared to the more general approach undertaken by Mr Griffiths, who sought to identify the accident scene by reference to maps and photographs. Mr Griffiths' inspection was more limited, and was undertaken without the assistance of the plaintiff or his wife, contrary to that which was provided to Dr Carnavas.
Even though the potholes in question no longer existed due to the fact of post-accident road surface grading and pothole filling work carried out by the council, I consider it more likely that the plaintiff and his wife were more reliably able to show Dr Carnavas the precise location of the accident scene compared to the results of the unassisted efforts by Mr Griffiths to do so: Exhibit "5", Tab 4, p 58.
In comparing the two descriptions of the accident scene when viewed by the respective experts, I consider that Dr Carnavas was more likely to have inspected the actual location, compared to Mr Griffiths, who was more likely to have viewed the general area without the same level of specificity and particularity as was identified to Dr Carnavas.

[35]

Condition of the road surface

It is not disputed that at the time of the plaintiff's accident, the roadway where the accident occurred was relatively narrow, the surface was potholed in parts, and that in the aftermath of the accident, the plaintiff had been found with his face partly immersed in a water-filled pothole that was located in the middle of the road. Furthermore, there is no dispute that the road surface comprised dirt with loose gravel, as was described in the unchallenged evidence of Mr Bessabava.
Nevertheless, it becomes necessary to reconcile some aspects of the differing eyewitness descriptions and the assumptions by experts as to the condition of the road surface at the time of the accident.
Mr Bessabava described the roadway as comprising a quite narrow potholed dry, clay, dirt and rock surface: T171.24 - T171.38. In answer to questions asked in cross-examination, Mrs Cordin agreed that the road surface was wet, with many tyre tracks being visible: T104.40 - T104.46. No quantification of those latter descriptions was pursued further in the evidence of Mrs Cordin.
On the day of the accident, after seeing the plaintiff's condition at the scene, Mrs Cordin took some photographs of the roadway and of the general area. One of those photographs was tendered as Exhibit "C". There were copies of some other photographs taken by her, comprising Images 1 and 2, which were attached to the report of Dr Carnavas: Exhibit "A", Tab 1, pp 17 and 18. Dr Carnavas interpreted those photographs as indicating the dirt road surface was wet at the time of the accident: Exhibit "A", Tab 1, p 4, par 3.2.6.
There was no evidence to suggest that Mrs Cordin had provided Dr Carnavas with a description of the roadway to indicate that it was wet at the time of the accident. The photographs, as reproduced in the evidence, were of relatively poor quality and resolution, and the images included areas of deep shadows and dark points which were difficult to interpret. Furthermore, Exhibit "C" had been lightened in the printing process so it is difficult to draw reliable conclusions as to the state of wetness or dryness of the road surface from that photograph as its appearance in that image had been manipulated with the aid of technology: T122.44 - T123; T124.31. Dr Carnavas made the obvious point that what is shown in such photographs may not have been visible to the plaintiff at the time of the accident: T124.37.
It is a well settled principle that caution and limits must be observed when interpreting and drawing conclusions from what is shown in photographs: Blacktown City Council v Hocking [2008] NSWCA 144, at [167] - [169]. That principle should be seen to have equal application to analyses undertaken by experts as well as by courts. There was nothing in the reports or the evidence of Dr Carnavas which explained why or how he had interpreted the photographs as showing a wet roadway other than at the point of the obvious water-filled pothole. The wet roadway assumption was not self-evident from viewing the photographs and no special expertise in the interpretation of photographs was claimed by the expert in that regard.
Mr Bessabava's description of the roadway having been dry at the time of the accident, was not challenged. That description was not in any way inherently improbable. He was the first person to arrive at the accident scene and he was in a good position to make the observations of the scene as described in his evidence.
In my view, when considering, as a whole, the range of observations of the road surface, Mrs Cordin's description was not necessarily in conflict with that of Mr Bessabava. This is because, by the time Mrs Cordin had arrived Mr Bessabava's actions in placing his hand under the plaintiff's face, tilting the plaintiff's face out of the water-filled pothole, and then rolling the plaintiff over, and otherwise assisting the plaintiff whilst he was obviously wet-faced, appeared to be semi-conscious and breathing heavily (T172.10 - T172.50), could easily have had the consequence of making some of the roadway around the pothole wet to some degree.
The rescue-oriented actions of Mr Bessabava, as described above, together with the arrival of a number of other vehicles on the scene from both directions after the accident, including those belonging to Mr Marshall, Mrs Cordin, and the ambulance, could also serve to possibly explain Mrs Cordin's evidence in which she agreed that the road was wet, with many tyre tracks when she saw the road surface. Furthermore, I do not discount the possibility that before the plaintiff's accident, other vehicles may have driven over the water-filled pothole near to where he was found, thereby possibly spreading a degree of wetness onto the otherwise dry or relatively dry road surface. By the time Mrs Cordin had arrived at the accident scene, there were four vehicles seen there: Exhibit "E", par 5.
Just as there are degrees of relative wetness there must be degrees of relative dryness. Alternatively, the road surface could have remained damp or wet from previous rainfall having been absorbed into the road, but with residual water having pooled in potholes, and giving the general impression to Mr Bessabava that the road was relatively dry, but not in the sense of it being dusty, or being wet in the sense of being muddy, as was assumed by Mr Griffiths.
I consider that these latter possible explanations most likely account for the apparent differences in the description of the roadway in the evidence respectively given by Mr Bessabava and by Mrs Cordin.
Whilst the ambulance report described the plaintiff as having been "covered in dirt, mud and … wet" (Exhibit 5" Tab 1, p 2), it should be recognised that those observations referred to a description of the plaintiff himself, and in my view, they were not intended to be a description of the road surface, although that was evidence from which inferences could possibly be drawn to the effect that the condition of the road surface was at least in part, muddy. The oral evidence of Mr Hartley to the effect that the plaintiff's face was covered in mud, and that he "was just covered in mud" (T79.2; T79.18) falls into the same category. In my view, that latter evidence, when read in context, should be seen to be a reference to the plaintiff's face being wet and covered in mud, which does not necessarily support an inference that the road surface was muddy and wet.
That view is to some degree supported by the content of the ambulance report, which seems to differentiate between dirt and mud, as cited in the immediately preceding paragraph.
If, to the contrary, the roadway was wet and muddy, as seems to have been assumed by Mr Griffiths, there would have been no need for Mr Hartley to describe the plaintiff was having been covered in dirt, when the description muddy would have been more apt and sufficient.
In my view, the description contained in the ambulance report, of the plaintiff being wet was a general one, and it is not possible to determine or infer from that description whether he was wet all over, or whether he was just partly wet, such as being wet around his face and his head. When interpreting the ambulance records it must also be recognised that they consist of a non-contemporaneous consolidation of Mr Hartley's actual notes, where copies of those notes were not available at the hearing. That consolidation of the notes was undertaken by someone else in the ambulance service. It was not in the form of a statement or a transcript, and Mr Hartley had in part eschewed a notation in that note. In my view, this limits the evidentiary use of those consolidated records including for drawing inferences.
In those circumstances, on the balance of probabilities, I consider that Mr Bessabava's description of the roadway as being dry, except for the water filling the pothole and perhaps immediately around the pothole, is the more likely and reliable one. He was first on the scene before the scope existed for the vehicles that arrived afterwards to have some impact on the appearance of the road surface. Those findings include scope for the possibility that water from previous rainfall had been absorbed into the road surface leaving a degree of residual dampness or wetness of the road surface, rather than leaving unabsorbed water on the road surface at the time of the accident.
In arriving at those findings, I have not overlooked the content of either the evidence comprising the police report, or the Lismore Council records. The police report, which should be seen as being based on a self-serving statement from the plaintiff, some 10 days after his accident, described the roadway as having a sealed and dry surface: Exhibit "5", Tab 5, p 62.
In my view, the timing of those records, and the fact that those records described the roadway as having been sealed at the time of the accident, renders this document a less reliable source for ascertaining the condition of the roadway at the time of the accident compared to the eyewitness observations of Mr Bessabava and Mrs Cordin. Furthermore, the fact that the police report states the roadway was sealed, suggests that the police had inspected the roadway after the Council had undertaken post-accident remedial roadworks at the accident scene. There is nothing within the Lismore Council records that were in evidence which contradicts the descriptions of either Mr Bessabava or Mrs Cordin.
For the reasons outlined in the preceding paragraphs, I am satisfied that at the time of the plaintiff's accident, the relevant portion of the road consisted of a potholed surface that was dry in the sense that there was no residual unabsorbed surface water, except in specific locations where potholes of various depths had remained filled with water, perhaps to varying degrees. I consider it significant that Mr Bessabava, who was called as a witness by the defendant, did not describe the road surface as either wet, muddy or slippery. I consider that if those conditions had existed at the time of the accident, he would have been in a good position to have made such an observation, and evidence to that effect would have been elicited from him.
I am therefore not prepared to draw the inference that the road surface was muddy and wet in the sense assumed by Mr Griffiths, based on a comment of uncertain provenance in the ambulance report.
Those findings provide a convenient reference point for considering, in due course, the relevance and the applicability of the assumptions made in the expert accident reconstruction report of Mr Griffiths, in which it was assumed that the roadway comprised a loose, muddy, and wet surface, at the time when the plaintiff encountered potholes whilst riding on that roadway: Exhibit "5", Tab 6, p 105.

[36]

Plaintiff's retrograde recollection of events

An issue emerged as to whether the plaintiff had retrograde amnesia: T52.18. There is no dispute that the term retrograde amnesia describes the phenomenon whereby a person experiences a loss of memory for events that occurred before the onset of an injury: T53.20 - T53.25; International Classification of Diseases, Version 10.R4(1.2).
The defendant referred to a note made in the Princess Alexandra Hospital records by an occupational therapist on 4 September 2012, to the effect that the plaintiff had some retrograde amnesia and he had an intact anterograde memory: Exhibit "5", Tab 3, p 38. There was no suggestion that diagnosis, or recognition of the presence of retrograde amnesia, were matters outwith the professional remit or skill set of an occupational therapist.
The background to the observation that the plaintiff was affected by retrograde amnesia was the undisputed observation that at the accident scene, the plaintiff had been found semi-conscious, disoriented, incoherent of speech, mumbling, and not making a great deal of conversational sense. When Mr Hartley assessed the plaintiff he proceeded to set up a GCS chart, which was then maintained by him for three serial observations over time. I infer from those circumstances that this was because there was a concern at the time over the possible extent or effect of the plaintiff's obvious head injury.
Mr Hartley assessed the plaintiff's GCS at 15 at each time when it was successively reviewed, at 11.40am, 12.00noon and at 12.10pm on the day of the accident: Exhibit "5", Tab 1, p 5. There was no expert evidence called to suggest that those GCS scores meant it was unlikely that the plaintiff could have had a period of retrograde amnesia, or that the observed and described state of the plaintiff's anterograde disorientation and incoherence for a time after the accident, was in fact inconsistent with an assessed GSC of 15.
Similarly, no medical evidence was called to suggest, in the context of a history of injury as summarised in the preceding paragraphs, that it was improbable for the plaintiff to have had only a relatively short gap in his retrograde memory, in this case, being an awareness of being struck by a force from behind and then being propelled forward, and then next recalling that he was in an injured state, being dazed, being assisted to the ambulance, followed by a patchy recollection with facets of detail that only became clearer and more continuous when he was in hospital in Brisbane after he received pain relief.
In the circumstances, on a commonsense analysis, where the expert medical evidence on such matters is silent, I infer from the described aftermath of the plaintiff's head injury, that he did have a short period of retrograde amnesia to the degree he has described, and as summarised in the preceding paragraphs: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538.
There was no medical evidence to suggest the plaintiff's account in that regard was inconsistent with an assessed GCS of 15. The plaintiff's evidence to that effect did not seem to be inherently improbable. The evidence of Dr Lando supported the view that a GCS of 15 is not necessarily inconsistent with the plaintiff having had problems with confusion, or as I also infer to be the case, with the similar conditions of disorientation or incoherence, following a head injury: T202.22.
It follows that it is feasible that the plaintiff would, as he claimed, have a recollection of some pre-accident events notwithstanding his head injury and the related disorientation and incoherence as observed shortly after the accident, and a degree of retrograde amnesia. On the evidence, I consider that the plaintiff's claimed pre-accident recollection is not glaringly improbable or inherently wrong, and it should therefore not be seen to be a matter that serves to detract from the credibility or the reliability of his testimony.

[37]

Plaintiff's manner and speed of riding his bicycle

There was a dispute as to the manner and speed with which the plaintiff had been riding his bicycle in the events leading up to the accident.
The plaintiff stated that up until the time whilst his memory of the events was intact, he had ridden down the steep pitch in the road to the place where the road had levelled out: T37.41 - T37.46. Whilst he was rolling or coasting forward (T64.2) in response to seeing some potholes on the roadway (T6.20 - T6.45), he proceeded to apply both brakes before reaching the potholes: T6.39 - T6.50; T15.3; T31.21; T32.2; T35.31; T38.8; T47.10; T50.4; T64.7 - T64.31. By then, he had stood up on the pegs of his bicycle as a method of shock absorption (T14.21), and having slowed down to virtually a walking speed so enable himself to negotiate the potholes on the road (T8.49; T31.49; T32.3; T38.8; T38.36; T38.44 - T38.48), he adopted what he considered to have been the best position on the roadway to be able to negotiate those potholes. In those circumstances, he was unable to say whether he had adopted a position in the middle or at the side of the roadway from which to negotiate those potholes he had encountered: T39.3 - T39.25.
As there were no eyewitnesses to those events, and in view of the fundamental nature of the defendant's credit challenges to the evidence of the plaintiff, in which it was suggested he had reconstructed his evidence in order to obtain a verdict in his favour, it becomes necessary to review the other evidence that might be available to assist in determining whether there are any relevant inconsistencies that could reasonably serve to contradict the plaintiff's account.
The interpretation of medical, allied, police and council records is another matter to be considered later in these reasons.
None of the witnesses who gave oral evidence gave evidence of any post-accident conversations with the plaintiff in which the content of such conversations tended to show the plaintiff was incorrect in his evidence of his account of the manner in which he had ridden his bicycle immediately before the accident. There was no persuasive evidence of the plaintiff having made any post-accident admissions against his interests, or contrary to his oral evidence.
An examination of the documentary evidence, other than the opinion evidence of Mr Griffiths, leads to the same conclusion. The only source of potential contradiction of the plaintiff's account comes from the comments within the reports of Mr Griffiths, who assumed that the accident could not have occurred in the manner described by the plaintiff: Exhibit "5", Tab 6, p 105.
The deductions made by Mr Griffiths to that effect must be recognised as being arguments based on assumptions that need to be examined for proof before they can be accepted and acted upon in the form of findings. Of themselves, those arguments do not constitute factual evidence.
However, since those assumptions and arguments offer a source of potential contradiction to the case for the plaintiff, it is necessary to engage with them and to analyse them for relevance to determine whether, within the evidence, there is proof which sustains them. Such matters include the plaintiff's likely manner of riding his bicycle at the time of the accident, as outlined at paragraph [384] above, his likely speed, his likely road position, and the likelihood of his account of having been struck by a motor vehicle from behind being a plausible explanation requiring consideration in the proceedings.
The plaintiff's evidence of having slowed down his bicycle to a coasting or a virtual walking pace, was not directly contradicted by other evidence. Dr Carnavas argued that if the plaintiff had been travelling at a higher speed, as was claimed by the defendant, he would have expected to see a greater degree of damage to the bicycle: Exhibit "A", Tab 1, p 5. In contrast, Mr Griffiths argued, based on assumptions, that a loose and muddy road surface would account for the absence of such indications of damage: Exhibit "5", Tab 5, p105 line 21; p 122 line 26.
The contrasting expert evidence in that regard requires evaluation according to the assumptions upon which that evidence is based. The products of that evaluation will be identified later in these reasons. For present purposes, it is sufficient to state that I am not satisfied that the expert evidence, and the factual evidence which underpins that expert evidence, should be read as providing proof that the speed of the plaintiff's bicycle at the time of the accident was greater than that which was described by the plaintiff in his evidence, namely something akin to a walking pace, in conjunction with braking.
The plaintiff was found laying face down in the middle of the roadway with his bicycle on the ground a short distance away from the location of the pothole where he was found. Mr Griffiths assumed the distance to be a few metres away, but the source of that assumption was not identified: Exhibit "5", Tab 6, p 66. He later described the distance as 3m: Exhibit "5", Tab 6, p 78. The source of that assumption was not identified either. The plaintiff could not remember whether he was riding towards the middle of the road or at the side at the time of the accident, although he said that he was aware of preparing to negotiate a path around the potholes. In my assessment, the described facts, and the described damage to the bicycle, do not permit a reasoned conclusion, expert or otherwise, of the precise location of the plaintiff's road position at the time he claimed to have felt the force from behind just before he landed on the roadway where he was found.

[38]

Plausibility of perception of a striking force from behind

The plaintiff had a perception of having been struck or shunted from behind by a motor vehicle. The defendant argued that evidence should be recognised as being based on a belief or a conclusion, which the plaintiff had formed to that effect, as he did not actually hear, see or feel any such contact, although he described feeling a force having been applied from behind, and which resulted in him falling onto the roadway.
At its highest, the plaintiff's evidence of the claimed impact is that he felt a force from behind, following which there was a gap in his recollection. His assumption that he had been struck by a motor vehicle needs to be validated by other reliable evidence.
On a review of the evidence as a whole, nothing emerges to suggest that the plaintiff's account of pre-accident events as summarised in paragraph [384] above should necessarily be seen as being incorrect or implausible so as to require a finding that his evidence on those matters should not be accepted.
This still leaves open the question of whether the force from behind that was described by the plaintiff, was on the balance of probabilities, more likely than not to be due to impact from a motor vehicle. That question must be weighed against the alternative scenario argued by the defendant, namely that the plaintiff had simply fallen from his bicycle, including the possibility that he did so after striking a pothole with a wheel of his bicycle, without any involvement of a motor vehicle.
Having reviewed the evidence I am not persuaded the plaintiff fabricated his evidence for financial gain, or that he gave convenient answers to suit his case, as was suggested by the defendant. The other potential alternatives must therefore be considered.
If it is accepted that there was a force applied to the plaintiff's bicycle from behind as described by the plaintiff, so as to cause the plaintiff to fall from his bicycle and onto the roadway, the alternative possibilities to explain this event seem to be, either another person, or something such as an animal, having pushed the plaintiff from behind, or something such as a falling tree branch or a rock being the source of the described force, or alternatively, a force from a collision with another bicycle, or a force from a collision with a motor vehicle of some description, as claimed.
I accept the plaintiff's evidence to the effect that there had been no other vehicles in the vicinity travelling ahead of him, or travelling in the opposite direction, in the events immediately before the accident. There is nothing in the evidence which suggests that evidence was implausible.
The possibilities of a falling tree branch or a falling rock or some other object striking the plaintiff's bicycle from behind can be reasonably excluded as being unlikely because no debris fitting such descriptions was found on the road at the accident scene.
I also consider it unlikely that a person present on or near the roadway would have pushed the plaintiff from behind. If there was such a person in the vicinity at the time the plaintiff was riding past, it would be most likely that the plaintiff would have seen and described such a person, or persons. On that analysis, I consider it unlikely the plaintiff was pushed from behind by another person, or persons located on or near the roadway.
For the same reasons, I also consider it unlikely that there was a collision from behind with another bicycle rider. In my view, had there had been such a collision, it would be unlikely that the other rider would have been able to keep riding in that area without falling, and coming to the attention of Mr Bessabava. Mr Marshall did not describe having seen any such rider coming downhill and towards him as he drove towards the accident scene, which reinforces the improbability of such an explanation.
The above analysis therefore leaves two remaining possibilities. Either the plaintiff fell from his bicycle without the application of a force from behind, either with or without contact between a pothole and a wheel of his bicycle, as argued by the defendant, or that he had been struck by a motor vehicle, as he claims.
Mr Marshall's evidence did not exclude the possibility of another southbound motor vehicle being in the vicinity after the accident: T165.47. This means that the state of the evidence does not contradict the possibility that a vehicle following the plaintiff struck the plaintiff's bicycle from behind and then continued on its southbound journey without stopping and remaining at the scene.
The defendant's contention that such a possibility was unlikely, as such a vehicle would have run over the plaintiff, is not compelling, as was explained by Dr Carnavas: T130.26 - T130.49.
I am satisfied that in the events described and summarised in paragraph [384] above, the plaintiff fell from his bicycle and ended up laying on the road face down in a pothole with his face partly immersed in water, where he was found by Mr Bessabava. I am also satisfied that it was plausible that the plaintiff could have felt a force applied from behind in those events.
Those findings lead to the need to undertake an evaluation of the evidence of the plaintiff's anterograde recollections, the entries in the ambulance and the hospital records which contain descriptions that touch upon the manner of the plaintiff's fall from his bicycle, and the credibility and reliability of the plaintiff's explanations as to those matters.
The examination of the plaintiff's explanations must be preceded by an evaluation of the probative value of the content of the ambulance and hospital records in the context of the plaintiff's anterograde recollections. It is convenient to first examine the content of, and the explanations for, those anterograde recollections.
Those evaluations must also precede any consideration of the otherwise plausible possibility that a motor vehicle had struck the plaintiff's bicycle from behind as he claims. A conclusion to that effect must necessarily be reasoned, and must be based on evidence and available inferences from that evidence, not unsupported speculation or conjecture: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

[39]

Plaintiff's anterograde recollection of events

The defendant challenged the credibility of the plaintiff's evidence in which he claimed he had only limited recollections of having seen medical and allied personnel in the hospitals to which he was admitted, and of having only limited recollections of conversations with ambulance, medical and allied professionals, and had only pieced together what had happened to him when he was in hospital in Brisbane: T14.5; T25.25 - T25.49; T28.28; T52.31.
The defendant also challenged the credibility of the plaintiff's account of how he came to piece together the version of the events of the accident as he recounted in his evidence, and in doing so, variously alleged the plaintiff had reconstructed his evidence for monetary gain (T15.17 - T15.30) and that his assertion of the involvement of a motor vehicle in the accident was a recent invention: T49.38.
The difficulty the defendant faces in respect of those challenges is that the plaintiff's version of the events to the effect that he had only pieced together the facets of what had happened to him in the events of the accident whilst he was in the Princess Alexandra Hospital, is not necessarily, and on its face, glaringly improbable, or unlikely to be correct.
The defendant sought to characterise the plaintiff's recollections of the events surrounding the accident as a convenient reconstruction by the plaintiff, aimed at securing a verdict in his favour in these proceedings. I did not gain that impression from the evidence of the plaintiff.
In contrast, on behalf of the plaintiff, it was submitted that the plaintiff's evidence to the effect that he had pieced together the events was a process that seemed to naturally follow from the circumstance of his initial period of confusion and incoherence which resulted from his head injury.
In examining those matters it must be recognised as possible, that the plaintiff's initial period of confusion may have had the effect of rendering incomplete, any earlier brief accounts that he may have provided to persons asking him questions as to what had happened to him in the accident.
In this case, the persons who would have initially asked the plaintiff questions along those lines at an early stage, included those passers-by who assisted him at the scene, ambulance paramedics, and hospital staff in the medical, nursing, or other paramedical disciplines. This may have led those persons to assume that there was no motor vehicle involved in the plaintiff's accident.
I accept as apt and accurate, evidence of Mr Bessabava's post injury observation of the plaintiff to the effect that the plaintiff had a reduced level of consciousness at the scene, and that he was incoherent: T173.1 - T173.10.
I also accept as apt and accurate the evidence of Mr Marshall who had arrived very shortly after Mr Bessabava, when he said he observed the plaintiff to be very confused, out of sorts, very disoriented, not saying anything that amounted to conversation, mumbling, and making noises about getting his bicycle and wanting to go home: T166.48; T167.1 - T167.5; T167.31 - T167.35; T167.41. The latter observation suggests the plaintiff was not thinking or communicating clearly or rationally for the circumstances which prevailed at that time.
I consider that as Mr Marshall's observations were not qualified as to time, and they would have most likely continued to apply at least until the time when he had passed the care of the plaintiff over to Mr Hartley, some 30 or so minutes after the ambulance was called, recognising that the call for the ambulance, which was made at 10:58:45am, was after Mr Marshall had arrived, and Mr Hartley's ambulance was said to have arrived at the scene at 11:32:50am: Exhibit "5", Tab 1, p 11.
I am satisfied that in that time, the plaintiff continued to suffer the effects of his head injury as was described by Mr Bessabava and Mr Marshall.
I infer from the descriptions of Mr Bessabava and Mr Marshall, that whatever the severity of the plaintiff's head injury, the aftermath of that injury was having a significant impact upon his mental functioning, at least until Mr Hartley arrived, and most probably well beyond that time, given the content of parts of the Princess Alexandra Hospital notes, which recorded that the head injury involved the mechanism of a significant axial loading force with a loss of consciousness "+ +" (Exhibit "5", Tab 3, pp 26 and 31), and also because, 5 days later, on 7 September 2012, the plaintiff was then noted to have still been suffering cognitive deficits from the accident, with reduced mental control, memory, orientation and attention: Exhibit "5", Tab 3, pp 42 - 43. The plaintiff was mentally distressed for some time after the accident: T53.42.
Those matters lead me to conclude that there was, to an uncertain degree, a continuum of the plaintiff's problems of orientation and confusion from the time of the accident and over those ensuing days which would most likely have affected the content of any conversations held with the plaintiff. This also leads me to conclude that Mr Hartley's evidence and his interpretation of the consolidated ambulance records, must be seen as containing relative statements, particularly as there was no controversy over the observations of the plaintiff by Mr Bessabava and Mr Marshall at the scene.
In coming to that conclusion I have not overlooked the content of the consolidated ambulance summary prepared by someone in the ambulance service based on Mr Hartley's notes, where it was stated that "… pt is oriented to place and time now …". I take that description to mean that the plaintiff was aware of his surroundings. That notation throws no light on the level of functioning of the plaintiff's mental processes.
A limiting feature of that notation as to orientation in the ambulance records is that the comment in question was not timed, which means that it is not known as to when, during the 45 minute ambulance trip to hospital, the descriptor "now" applied. Also, given the Princess Alexandra Hospital notes dated 7 September 2012 already cited, it is not known whether the described orientation description "now", had applied continuously during the trip to Lismore Hospital, or once the plaintiff had arrived there, and when his care was about to be handed over to the hospital staff, and the paperwork was completed.
Mr Hartley's assessments of the plaintiff's vital signs survey during the trip to Lismore Hospital, as recorded in the consolidated ambulance notes, were that the plaintiff's appearance was "Calm/Quiet", his speech was "Clear and Continuous", without reference to its content or appropriateness, and that on an assessment of his central nervous system or clinical neurological signs, he was given a "Verbal" score of "5 - Orientated": Exhibit "5", Tab 1, p 5.
It is significant that on the occasion of the helicopter transfer to Princess Alexandra Hospital, the assessment of the plaintiff's vital signs survey, which was carried out by a different ambulance officer, precisely the same assessments were recorded, using the same words or descriptors, including capitals and punctuation. This was noted to have occurred at 20:26hrs and at 21:50hrs: Exhibit "5", Tab 1, p 9. In my view, the identical nature of those consolidated terms suggests they were selected from some type of pre-set menu containing term of art descriptors rather than being free-form text descriptions. The similarity in the form and content of the notations of two different observers is too much of a coincidence for the latter to be the case.
The purpose of Mr Hartley's examination of the plaintiff at the scene of the accident was to assess the plaintiff's injuries, to seek to stabilise the effects of those injuries, which included a head injury, and to then assist in transporting the plaintiff to hospital for medical care.
In the hierarchy of the priorities that prevailed in those circumstances, although part of Mr Hartley's duties included the need to ascertain how the plaintiff had become injured, it would have been plain from observing the scene and from speaking to any persons present, that the plaintiff had fallen from a bicycle onto the roadway, irrespective of what had caused such a fall.
In those circumstances, where the unchallenged evidence was that the plaintiff was screaming and in pain (T87.42), and absent the apparent involvement of another vehicle, as no such vehicle was present, it is doubtful that Mr Hartley's duties and enquiries would have extended to seeking to ascertain the precise mechanism or sequence of events that had caused the plaintiff to fall from his bicycle. At that time, for Mr Hartley's purposes, a note to the effect that the plaintiff had fallen from his bicycle would have been a sufficient record. No-one at the scene at that time had reasonable cause to think otherwise.
It is against the above background that the plaintiff's anterograde memory, which includes the piecing together of events in his mind after he received pain relieving medication at the Princess Alexandra Hospital, needs to be assessed.
In my assessment, the plaintiff's pieced together memory of the events immediately before the accident was reliable, and was not inherently or glaringly improbable or requiring discounting because of the circumstances in which it was reconstructed. Absent specific expert evidence to the contrary on that point, I am not inclined to discard or discount the plaintiff's memory of events as unreliable. I consider his account is readily explicable once the effect of pain relief is taken into account.
I consider it more probable than not, that once the plaintiff's thinking was less distracted by pain, because of pain relieving medication, as occurred on the day following the accident when he was in the Princess Alexandra Hospital, he was then able to provide a more accurate and detailed account of what had happened in the events of the accident. It was in those circumstances that he provided the account he gave to Mrs Cordin that he had been struck by a force from behind, which he believed to have been from a motor vehicle.
By that time, the short form account of the plaintiff having fallen from his bicycle had become a well embedded thread of information in his medical records. I consider it unlikely that from that time, as explained by Dr Welgama at T188.50 - T189.6, any medical or allied health practitioner would have had a need or an interest in recording a fuller account than that simple historical version of the events that had already been repeatedly noted.
I therefore find that the plaintiff's account of the events occurring immediately before his accident, as summarised at paragraphs [209] - [213] and [384] above, are, on the balance of probabilities more likely than not, correct.
This still leaves the question of whether there was a force from behind that came from impact with a motor vehicle. This is the question that engaged the crash reconstruction experts.

[40]

Significance of statements in ambulance / hospital records

As foreshadowed at paragraphs [76] - [77] above, I do not consider the statement in the ambulance records "fall of (sic) bike post hitting a pot hole" to be probative of the defendant's assertion that the plaintiff's bicycle wheel had either struck a pothole leading to the plaintiff falling from his bicycle, or that the plaintiff had simply fallen from his bicycle. In my view, the ambulance records do not exclude the possibility of the plaintiff having been struck from behind by a motor vehicle whilst he was riding his bicycle, and then falling off the bicycle, as he claims.
Whilst I accept that no-one at the accident scene mentioned the involvement of a motor vehicle to Mr Hartley, and this perhaps meant that he therefore did not need to inquire further on that account, this does not mean that the involvement of a motor vehicle can be excluded.
I consider that amongst the primary purposes of the ambulance records was the need to record a brief account of what had occurred, and to document the consequential medical condition and related care of the plaintiff until it was possible to effect a handover of such care at a hospital. I therefore do not consider that the limited description within the ambulance records of the plaintiff having fallen from his bicycle, represents a full or definitive account of the event for the purposes of a legal liability analysis.
I also consider this to be so because of the combination of the plaintiff's initial experience at the scene, of a degree of retrograde amnesia, his disorientation, confusion, incoherence, his experience of significant pain, and his odd and inarticulate behaviour, in which he expressed a desire to go home, which was incongruent to his seriously injured state for which he needed medical care, and the distracting and limiting effects such matters would be expected to have had on the extent and the content of detailed communications with him in the immediate post-accident period.
In coming to those views, I have not overlooked the repeated reference in the ambulance records of the plaintiff, at different times, being assessed as having been "orientated" (sic), with "Clear and Continuous" speech, and the evidence of Mr Hartley on those matters, having refreshed his recollection from those records.
In my view, those entries, and that evidence, should be discounted insofar as they may be thought to refer to the content of the plaintiff's speech as it appears to be based on assessment criteria which is repeated in identical terms both in respect of the records of the ambulance trip to Lismore Hospital (Exhibit "5", Tab 1, p 5), and in respect of the records of the trip to Brisbane by helicopter ambulance: Exhibit "5", Tab 1, p 9. I do not consider those descriptions provided a useful or reliable indication of the level of functioning of the plaintiff's mental processes or his ability to communicate in detail, especially given the content of the subsequent medical and allied assessments: Exhibit "5", Tab 3, pp 42 - 43. Those notations seem to be a measure of the plaintiff's level of consciousness.
In my view, on a consideration of Mr Hartley's evidence, refreshed from a consolidation of his notes, together with the plaintiff's confused and disoriented state at the scene following his head injury, and his limited communications, I find that the ambulance records and Mr Hartley's evidence do not exclude the possibility that the plaintiff had been struck by a motor vehicle in the subject accident.
In my view, the ambulance records and Mr Hartley's evidence should not be read as being authoritatively contradictory of the plaintiff's evidence of having felt a force strike him from behind in the events of the accident.
Those parts of the Lismore Hospital records that were in evidence provided only very limited details of how the plaintiff came to be injured because, as has already been observed, at paragraph [102] above, only parts of those records were tendered, and it is therefore not possible to review the entire records of the plaintiff's interaction with the staff at Lismore Hospital.
In my assessment, by the time the plaintiff's care was handed over to the staff of Lismore Hospital by Mr Hartley and his colleague, there was sufficient record of the means by which the plaintiff was injured. I infer that the account of the accident in the Lismore Hospital records either came from Mr Hartley or his colleague. I consider this led the hospital staff to adopt the assumptions so conveyed. I consider that the effect of the plaintiff's injuries, including his pain, meant that communications with the plaintiff were at that time in the same limited vein as was the case with Mr Hartley, as I have recorded at paragraph [92] above.
Either way, I do not consider that the Lismore Hospital records, and otherwise unexplained by oral evidence, should be read as being authoritatively contradictory of the plaintiff's evidence of having felt a force strike him from behind in the events of the accident.
As already observed at paragraph [116] above, and as is the case with the Lismore Hospital records, those parts of the Princess Alexandra Hospital records that were in evidence, also provided only limited details of how the plaintiff came to be injured.
The occasions on which the mechanism of the plaintiff's injury was mentioned in those notes has been set out in sub-paragraphs (1) to (22) of paragraph [119] above. It is common ground that none of those notes refer to a motor vehicle having been involved in the plaintiff's accident on 2 September 2012.
The defendant's contention that there was no motor vehicle involved in the plaintiff's accident is heavily reliant upon the absence of any mention in the ambulance and the respective hospital records of a motor vehicle having been involved in that accident.
Such reliance necessarily assumes that the plaintiff's mental functioning was focussed and adequately up to the task of providing a full description of the events of the accident, at the time he had been asked by medical and allied professionals how he came to be injured. It also assumes the plaintiff's responses to questions along those lines were in full or complete detailed form and content.
In my view, the defendant's reliance on such records is problematic, as it is not known whether the questions asked on the topic of how the accident occurred were singular and focussed, or whether the questions included multiple or compound elements that were aimed at seeking medically oriented information, or whether the plaintiff's answers were responsive to the questions asked, or whether the answers comprised gratuitous or unresponsive content that was in any event noted, or whether some accident-related details had been assumed from the records, along the lines suggested in the evidence of Dr Welgama at T188.50 - T189.6. The documentary evidence does not permit a reasoned non-speculative resolution of such questions.
It is plain that the defendant also recognised these problems, and sought to address them by calling oral evidence from Mr Hartley, Dr Welgama and Dr Lando in order to seek to clarify and explain the process by which aspects of those notes had been made or constructed.
The inherent challenge posed by such a course in terms of satisfactory proof of particular facts is that those witnesses, being health professionals, could not be expected to accurately and reliably recall matters of precise detail, especially on matters that were peripheral to their central focus, namely the pressing need at the time to assess and to manage the plaintiff's injuries. The notes those persons made of their attendances upon the plaintiff were not of a kind that was akin to a record of interview that would ordinarily be expected to be used to authoritatively or decisively resolve a factual dispute on the central question of whether a motor vehicle was involved in the mechanism of injury in this case.
It is entirely understandable that such notes would record matters such as a history of a fall from a bicycle onto the road resulting in an injury to the head. However, it is uncertain as to whether the nature and apparent extent of such injuries would lead the enquirer to probe further into the possible antecedent causes of the fall, or whether this was due to contact with a vehicle, or a pothole, or both.
In the circumstances, in the absence of accounts from eyewitnesses, where the plaintiff was most likely the sole source of information conveyed to Mr Hartley as to what had happened to him, and similarly, the source of information to the doctors who later examined him, it is also uncertain as to whether the plaintiff's initially observed problems concerning reduced attention, disorientation and incoherence, had in a material way affected or impaired the accuracy of the information he gave in response to questions asked of him by health care professionals.
In my view, those problems affecting the plaintiff most likely had a filtering or inhibiting effect on the extent, the detail, and the coherency of the plaintiff's communications. I draw that inference from the evidence of Mr Bessabava and Mr Marshall already referred to, describing the plaintiff's disorientation, incoherence, mumblings, and the notes made later in the Princess Alexandra Hospital records: Exhibit "5", Tab 3, pp 42 - 43.
I consider that inference also arises from the unchallenged evidence of Mrs Cordin, which was not at all inherently improbable, where she described the plaintiff at the accident scene as screaming in pain and not wanting to be touched due to the effect of his injuries. In my view those matters were highly likely to operate as limiting factors on the plaintiff's ability to coherently and reliably communicate the precise detail of what had occurred to him in the accident.
In considering the array of evidence concerning the events, and likely conversations at the accident scene, I prefer the observations and the accounts of events respectively related in the evidence of Mr Bessabava and Mr Marshall, to the evidence of Mr Hartley. I considered Mr Hartley's account was likely to be less reliable as it was more recently refreshed from consolidated records that had been prepared by others, where his own records were unavailable for comparison as part of the evaluative process.
I am reinforced in that view by the fact that for both Mr Bessabava and Mr Marshall, the events of their attendances on the plaintiff to assist him were likely to be shocking, in the sense of being unusually traumatic and confronting, and would therefore very likely cause the event to stand out as a sentinel event in their life experiences, making it more likely the details surrounding the events would have been retained in their respective memories as a stand-out event, whereas for Mr Hartley, the event would have been a more routine attendance upon one of the very many emergencies he would have attended in his long career as an ambulance paramedic.
Those matters persuade me that the accounts of Mr Bessabava and Mr Marshall are more probably than not, correct. They were both independent witnesses without any apparent interest in the outcome of the proceedings.
Whilst Mr Hartley was also independent, and without an interest in the litigation, the accuracy of his evidence was likely to have been founded upon the summarised content of a consolidation of the ambulance records, and in my view, because of uncertainties in the compilation of that consolidation, and the inclusion of an unsourced assumption, that Mr Hartley eschewed, was therefore less reliable as a basis for resolving factual issues.
That said, I do not intend this conclusion to be read as being in any way critical of Mr Hartley concerning the manner in which he carried out his duties, or the manner in which he gave his evidence.
In some circumstances, inferences as to the content of conversations can be drawn from considerations of usual professional practice that led to the compilation of such records. However, in my view, in this case, an approach along those lines is not available because of the non-routine content of Mr Hartley's attendance on the plaintiff, because he did not prepare the consolidated notes which based his refreshed memory, and because of an unsourced detail in the notes, which did not come from Mr Hartley: T82.47.
The circumstances of Mr Hartley's attendance on the plaintiff, and the effects of the plaintiff's head injury, allowed significant scope for variation, departure and adaptation from usual or routine professional practice due to the unusual intrinsic nature of those particular circumstances. In my view, this leaves significant uncertainties as to how Mr Hartley's conversation with the plaintiff had proceeded and the liability related content of that conversation: Elayoubi v Zipser [2008] NSWCA 335 at [86].
In my view, the same conclusion applies to the significance of the hospital notes concerning the inferences the defendant seeks to have drawn regarding the content of the liability-related conversations the plaintiff might have had with hospital staff. I therefore consider the evidence comprising the ambulance and the hospital records provides an unsafe and an unreliable basis for drawing inferences or making findings to the effect that a motor vehicle was not involved in the plaintiff's accident: Mason v Demasi [2009] NSWCA 227, at [2]. That said, the question of whether a motor vehicle was involved still remains as a matter the plaintiff must prove, either by evidence, or available reasoned inferences: s 5E of the Civil Liability Act 2002.

[41]

Handover of care of plaintiff

In the events that followed the accident, the care of the plaintiff was the subject of successive handovers between various persons.
The first such handover was from Mr Bessabava to Mr Marshall. The second such handover was from Mr Marshall to Mr Hartley. Those two handovers involved the provision of first aid to the plaintiff in difficult and confronting circumstances, for which Mr Bessabava and Mr Marshall deserve commendation.
The third such handover was from Mr Hartley to the hospital staff at Lismore. The fourth such handover was from the hospital staff at Lismore Hospital to the air ambulance retrieval team who transferred the plaintiff to the Princess Alexandra Hospital in Brisbane. The fifth such handover was from the air ambulance retrieval team to the hospital staff who received the plaintiff at the Princess Alexandra Hospital.
The sequence of those handovers took place during the course of the first 12 to 13 or so hours after the accident.
The defendant submitted that, when viewed as a whole, the ambulance records, supplemented by the evidence of Mr Hartley, and the hospital records, supplemented by the evidence of Dr Welgama and Dr Lando, support the proposition that there was no unknown motor vehicle involved in the plaintiff's accident because of the absence of any mention of such a vehicle in those records.
The defendant also submitted that those records supported the proposition that the plaintiff had simply fallen from his bicycle, consistent with what was recorded in those notes. I consider that latter submission to be overly simplistic.
In my view, the notes of the handover of each phase of the plaintiff's professional care occurred in circumstances where the plaintiff was in pain, and where any need to identify the mechanism of injury was plainly secondary to the provision of medical care to the plaintiff.
I infer from the evidence of Dr Welgama that the general intent behind questioning the plaintiff at handovers was to avoid needless repeated questioning on matters already recorded unless necessary, where the plaintiff was critically ill, in significant pain, with a definite spinal cord injury, where he was lying on a bed for a number of hours, restrained and restricted from movement, and where out of respect to the patient's emotional status, only essential questions were asked, with reliance having been placed on the questions having been asked by others who provided the initial care: T188.50 - T189.6.
That explanation by Dr Welgama leads me to the view that the notes made in the ambulance and the hospital records are of only limited utility in identifying the underlying factual details of the mechanism of the plaintiff's injury insofar as a motor vehicle may have been involved in those events. In my view, those records are not definitive of that matter, and in fairness, they should not form the basis for rejecting the claim that a motor vehicle had struck the plaintiff's bicycle from behind in the events of the accident.
In my view, the medical and allied persons who enquired of the plaintiff as to how he came to be injured, and who recorded the conclusion that he had fallen from a bicycle, had no relevant or apparent interest in specifically questioning the plaintiff for the purpose of definitively ascertaining whether or not a motor vehicle had been involved in the incident.
Accordingly, as already observed at paragraphs [437] - [466] above, I consider that the summary notes made by those persons should not be read as providing satisfactory reasons for excluding the involvement of a motor vehicle in the incident in which the plaintiff was injured. The nature, content and purpose of those notes persuade me to that view in light of Dr Welgama's cited explanation as to how such notes are compiled in cases such as the plaintiff's circumstances. I should not accept the defendant's submissions to the contrary of that view.

[42]

Significance of police and council records

The copies of the initial police and council records that were tendered in evidence were compiled by the police officers and council officers well after the event.
The council records are dated 6 September 2012, and these were generated following Mrs Cordin making a call to the council on that day: Exhibit "5", Tab 4, p 57. The defendant argues that as there was no mention in those records of a motor vehicle accident, and because there was only a mention of "a serious accident" in the context of the road needing repairs, this was a sound basis for rejecting the proposition that a motor vehicle was involved in the plaintiff's accident, particularly because on the plaintiff's account, he would have by then told his wife he had been struck by a motor vehicle. I do not accept that argument because the note relied upon by the defendant appears only to be a summary and it does not necessarily exclude the involvement of a motor vehicle.
The records prepared by the police comprised the witness statements of the plaintiff and his wife, each statement being dated 23 October 2012: Exhibits "F" and "E". In addition the police prepared a report dated 19 December 2012: Exhibit "5", Tab 5, pp 60 - 65.
The defendant criticised the content of the statements to the police suggesting the involvement of a motor vehicle: Exhibit "E", par 21, and Exhibit "F", par 18.
In my view, those statements were of limited evidentiary value insofar as it was sought to implicate the involvement of an unknown motor vehicle because they are self-serving to the plaintiff's case. In my view, their true evidentiary significance is that they do not contain any accounts of the accident that should be regarded as being inconsistent with the plaintiff's evidence.
Given the nature and the effect of the plaintiff's injuries and initial episodes of hospitalisation, treatment and rehabilitation, I do not consider the delays in reporting the accident to the police to be suggestive of a lack of genuineness of the plaintiff's claim that an unknown motor vehicle was involved in the events.
The purpose of Mrs Cordin's statement to the police (Exhibit "E") seemed to be to record the extent of her knowledge of the events, and to identify the photographs she had taken at the accident scene. The portion of that statement in which there was first mention of a motor vehicle was at paragraph 14, where she recounted the content of her conversation with Mr Bessabava, on 6 September 2012, in which she had asked him if he or anyone else had seen a car go past at the scene. I infer, that question to Mr Bessabava arose after Mrs Cordin had spoken to the plaintiff whilst he was still in hospital in Brisbane. In the circumstances it was a question that naturally arose.
The plaintiff's statement to the police (Exhibit "F"), which simply records his belief that the back wheel of his bicycle had been struck by a motor vehicle was self-serving. Therefore, in fairness to the defendant, I consider that statement should be seen as being of no probative value to determining the specific question of whether or not there was a motor vehicle involved in the accident. It is however evidence in support of the plaintiff's belief that his bicycle was struck from behind.
I do not accept the defendant's submission that the theory of a motor vehicle accident only arose after the plaintiff had obtained advice from his solicitor. Whilst the defendant submitted that an inference to that effect should be drawn, I consider that submission was based on speculation, and in circumstances where the inference sought by the defendant was not compelling. There was nothing unusual or suspicious about the fact of the plaintiff having sought legal advice and there is nothing about his subsequent actions that suggests he has sought to contrive a case for the purposes of seeking compensation for his injuries.

[43]

Factual observations by Dr Carnavas

The defendant was critical of the limited factual observations made by Dr Carnavas which, it was argued, limited the applicability of his expert analysis because of the reasoning process he had adopted: T231.10 - T232.11.
I do not accept those criticisms. I consider those criticisms to be overly simplistic. I consider those submissions fail to give due weight to the factual observations made by Dr Carnavas. Those reasons will be expanded upon in the course of reconciling the conflicting expert opinions.
Dr Carnavas gave some factual evidence in two respects.
First, Dr Carnavas described the observations that he had made following his physical examination of the plaintiff's bicycle, in which he determined that the rear wheel could not be rotated due to it being jammed against the right rear brake pad which made the bicycle unrideable, and that the rear wheel had a significant buckle, with the right end of the axle being displaced downward by about 6 - 7mm, so that the rear wheel could not be released by opening the lever: Exhibit "A", Tab 1, p 3. That was an important observation not available to Mr Griffiths when he examined the bicycle on a later occasion and found the rear wheel was able to spin freely albeit with some moderate lateral movement observable adjacent to the brake calipers: Exhibit "5", Tab 6, p 76 lines 14 - 16.
Dr Carnavas stated that to release the wheel from its jammed position this required that the axle nut be loosened by a number of turns to enable the wheel to be removed, following which the wheel could be replaced into its intended location: Exhibit "A", Tab 1, pp 1 - 4.
Secondly, Dr Carnavas made general observations of the accident scene in conjunction with an inspection of that scene: Exhibit "A", Tab 1, pp 14 - 18.
In considering the evidence of Mrs Cordin regarding her placement of the bicycle into her vehicle in order to take it home, together with the fact that the wheel of the bicycle was damaged, and that the plaintiff was seriously injured and was unlikely to have ridden the bicycle again before Dr Carnavas carried out his inspection of it after it had been stored for some time, I am satisfied that the plaintiff's bicycle, and particularly the rear wheel and axle, was in the same condition in which it had been found immediately after the accident.
It is apparent from comparing the reports of the respective experts that some key factual observations made by Dr Carnavas were not available to Mr Griffiths when he made his subsequent inspection of the plaintiff's bicycle. This included the displaced rear axle requiring loosening of the axle fastening nuts. That observation would no longer have been available for inspection by Mr Griffiths once Dr Carnavas had replaced the wheel into its correct position following his inspection: Exhibit "A", Tab 1, p 4, par 17.
After the wheel had been replaced, Dr Carnavas observed that although the axle had been correctly re-seated following his examination, the fact that the rear wheel was buckled meant that the rim and the tyre sidewall would rub heavily on the adjacent brake pad: Exhibit "A", Tab 1, p 4, par 17. That observation was not challenged.
It is useful at this point to compare the factual observations made by Dr Carnavas to those made by Mr Griffiths, who did not see the phenomenon described in the secondlast sentence of the immediately preceding paragraph. This is a matter of difference between the two experts that remained unexplained.

[44]

Factual observations by Mr Griffiths

The factual observations by Mr Griffiths related firstly, to the appearance of the plaintiff's bicycle, which he described in captioned photographs numbered 2 - 13 at pp 69 - 75 of Tab 5 of Exhibit "5", as has been summarised at paragraphs [310] to [314] above, and secondly, his observations of the general appearance of the roadway in the vicinity of where the accident occurred, as has been summarised at paragraphs [308] to [309] above.
The inspection by Mr Griffiths did not replicate Dr Carnavas' observation that the rim and the tyre sidewall of the buckled rear wheel of the bicycle rubbed heavily on the adjacent brake pad. Instead, Mr Griffiths found that although the wheel was "misaligned" and "eccentric", it spun freely on his inspection: Exhibit "5", Tab 6, p 76 line 14.
Mr Griffiths' observation that the rear of the plaintiff's bicycle showed "no gross deformation or evident damage" to the wheel or the axle was a subjective description, as was his comment of "minor misalignment" or eccentricity of the wheel.
It is necessary to reconcile those disparate views, particularly as Dr Carnavas was not challenged on his cited observation of the rim and the tyre sidewall rubbing against the rear right brake pad. It seems that the difference in those views is accounted for not only on the ground that the subjective descriptions employed by Mr Griffiths allows some scope for variation, but also, and more importantly, because after Dr Carnavas had re-seated the rear right wheel axle in the frame of the bicycle, the degree of effective misalignment of the wheel had changed by reason of the elimination of the downward displacement of the rear right axle in its mounting.
This still leaves unresolved the differing observations of the rear wheel in relation to the rear brake pad caliper. Given that Dr Carnavas' observations were not challenged despite the opportunity to do so, I propose to give greater weight to his observations as he described them because his observations arose from a testing process that was applied at an earlier point in time than those observations made by Mr Griffiths.

[45]

Nature of plaintiff's reconstructed account of the accident

The defendant characterised the plaintiff's account of the events of the accident as an unreliable reconstruction, in the sense that it was conjectural, and that it did not represent a true memory, but rather, it was a theory of what had occurred based on the plaintiff's belief, and which had evolved into a perception of fact in the plaintiff's thinking.
As foreshadowed at paragraph [27] above, it is because of that submission that I have deferred my consideration of the question of whether a motor vehicle was involved in the plaintiff's accident until this point in the analysis, so as to ensure that the consideration of that assertion occurs in the appropriate context of having assessed all of the available evidence relevant to that point.
The types of reconstruction canvassed in submissions were first, an imagined memory, secondly a reconstruction in which the events of the accident were pieced together from facets of recollection whilst the plaintiff was in hospital as his thoughts became less clouded and became clearer, and thirdly, a convenient reconstruction for monetary gain: T218.30 - T218.35.
Although the defendant had several times during cross-examination suggested to the plaintiff that he had engaged in the reconstruction of his evidence for monetary gain in order to obtain a verdict in his favour, the defendant seemed to have retreated from that position in final submissions, taking the middle of the three propositions identified in the preceding paragraphs: T218.37.
The assertion of a reconstruction for purpose of monetary gain is the equivalent of an allegation of fraud. In that regard, it is noteworthy that the defendant did not plead a defence alleging fraud on the plaintiff's part.
For completeness, I record my finding that I am not at all persuaded that the plaintiff's evidence was based upon a false reconstruction aimed at securing a verdict in his favour, as was put to him in cross-examination: T15.29 - T15.30. That proposition was entirely to the contrary of my impression of the plaintiff's evidence, when challenges to that effect were put to him for his responses.
In support of that submitted middle position, the defendant argued the foundation for the plaintiff's reconstruction was "uncommonly brittle", and without objective evidence to support such a reconstruction. The defendant's criticism of the reconstruction relied upon by the plaintiff was that no one, including the plaintiff, had heard or seen the claimed unidentified vehicle, and that the physics of the situation was against the reconstruction relied upon by the plaintiff: T218.37 - T218.45. In my view, that submission was based on an unduly narrow view that was unjustifiably critical of the expert evidence given by Dr Carnavas.
In addressing the question of whether the plaintiff had reconstructed his recollection for the purpose of giving his evidence in the manner characterised by the defendant in final submissions, namely unsupported conjecture which was not based on a true memory, it is useful to consider the nature of reconstructed evidence in the imagined and unreliable sense.
Imagined reconstruction is not a true memory, in which case it must be recognised as being unreliable, unless otherwise supported by reliable evidence.
The defendant's submission was that the plaintiff's account was unreliable as it was based on a belief only, rather than proven facts. I do not accept that submission. I accept the plaintiff's account of his journey to the accident scene, his road position and his manner of riding to that scene, as earlier stated and summarised at paragraph [384] above. I have also accepted that the plaintiff had felt a force from behind whilst riding his bicycle and that he was then propelled from his bicycle, as he claimed.
The significance of that force, and what it represented, still remains a matter to be determined after resolving the conflicting expert evidence.
Absent expert medical evidence to the contrary, I accept that reconstruction of the kind described by the plaintiff can validly emerge in the circumstances described by him, in the sense that fragments or "facets" of genuine recollection may be reliably pieced together, in the manner claimed by the plaintiff once the more acute and clouding effects of his head injury had begun to recede whilst he was still in hospital, and after he had received pain relieving medication.
This leaves for consideration the question of whether the force that the plaintiff recalled having felt from behind was because he had been struck by a motor vehicle, as he claimed.
In approaching that consideration I consider it to be of some importance that no medical evidence was called to suggest any medical or scientific implausibility of the plaintiff's claim of having pieced the events of the accident together whilst he was still in hospital in Brisbane.
In those circumstances, given my view that the plaintiff's evidence on matters concerning the events leading to his fall is not inherently or glaringly improbable, the reliability of the plaintiff's account of those events, remains a factual matter to be determined.
A final conclusion on that matter first requires a consideration of whether, in any material way, the expert evidence serves to relevantly contradict any aspect of the plaintiff's evidence on factual matters.

[46]

Conclusion on credibility / reliability of evidence of the Cordins

The fulcrum which tips the balance of the case is the question of whether the plaintiff was "shunted" from behind as he claimed, and if so, what caused this to occur. The defendant criticised the plaintiff's case by referring to the plaintiff's use of the term "shunted", submitting that it had become the "word de jour": T245.12. Given that the plaintiff was cross-examined in a manner that sought to cast doubt upon his version of events, in context, I considered that in assessing his credit as a witness, there was nothing untoward in the plaintiff's steadfast and repeated resort to the use of that word in the face of challenge, to describe what had happened to him.
The evidence of the plaintiff and Mrs Cordin was tested by vigorous cross-examination, which provided an opportunity to observe and consider their responses, including their responses when under the pressure of challenge. In my assessment nothing arose from those observations which detracted from their credit as witnesses on key matters in issue.
I considered that their evidence was in each instance given in a forthright, spontaneous manner, and without any accompaniments that raised doubts about the truthfulness of their respective accounts.
As has already been identified at paragraphs [18] - [19] above, the veracity of the plaintiff's evidence was attacked with assertions of structuring his evidence for financial gain, recent invention, and devising or planning his answers to deflect the impact of cross-examination.
In my assessment, the substance of those allegations, which were tantamount to an allegation of fraud, which had not been pleaded as was required by the rules, were based on suspicions harboured by the defendant without any offer of specific proof.
In my view, having considered the evidence as a whole in light of those allegations, absent cogent proof in the face of otherwise plausible evidence from the plaintiff, from his wife, and from the other witnesses called, and where that evidence is not otherwise inherently unlikely or improbable. I have concluded that those allegations concerning the plaintiff's motives should be rejected.
Similarly, I am not persuaded that the plaintiff's evidence involved the use of a contrived device or plan on his part, which was suggested to be a claimed lack of recollection due to his head injury in order to avoid answering questions, as was put to him by the defendant: T56.38 - T57.19. That contention by the defendant was contrary to my impression of the plaintiff's evidence as a whole.
In those circumstances, the remaining central questions to be determined involve whether the plaintiff has proven the essential elements in his case on the balance of probabilities.
Based on my findings as recorded at paragraphs [346] to [517] above, and consequent upon my analysis of the evidence of the respective experts as is explained in the paragraphs that follow, I have concluded that the evidence of the plaintiff and Mrs Cordin is both credible and reliable.

[53]

Assumed nature of road surface

Mr Griffiths has assumed, incorrectly in my view, that the road surface at the scene of the accident comprised loose unsealed gravel, and that the surface was wet and muddy: Exhibit "5", Tab 6, p 66 lines 28 - 30. Not all of those assumptions were reliably reflected in the evidence.
At page 78 line 7 of Tab 6 of Exhibit "5", Mr Griffiths noted that the police report described the road surface as dry (line 7). However, he did not go on to cite the fact that the police report also described the road as sealed: Exhibit "5", Tab 6, p 66 line 28 and p 67 line 8. However, he went on to record that his instructions were that the road was unsealed (line 20) notwithstanding that the police report described the surface as sealed: Exhibit "5", Tab 6, p 63. His preference for the selected assumptions of loose gravel, and the wet and muddy conditions as descriptions of the road surface (Exhibit "5", Tab 6, p 66 lines 28 - 30) remain unexplained.
In identifying those descriptions as the factual basis of his opinion, Mr Griffiths appears not to have sought to explain or to reconcile an apparent factual divergence between the stated condition of the road surface as described in the police report he was given, which had identified the road surface as being dry and sealed (Exhibit "5", Tab 5, p 63) and his own stated description of the roadway as being unsealed, with loose gravel, and with the road being wet, muddy, and potholed: Exhibit "5", Tab 6, p 66 lines 28 - 30.
Without explanation, Mr Griffiths appears to have selected the latter assumptions in preference to the contrary statement in the police report, but without also undertaking an analysis that dealt with or reconciled the contradictory description contained in the police report.
Whilst it was open to Mr Griffiths to express his opinion based upon the specific assumptions he has selected for his consideration, I consider that in doing so, his analysis has been left materially incomplete because he did not also express an opinion on the basis of the alternative assumptions that the road surface was dry, as stated in the police report.
In favouring the selected assumptions that he has identified in his report, Mr Griffiths has not explained why he has not addressed those to the contrary as contained in the police report which had formed part of the materials with which he was instructed. I consider that omission has served to detract from the completeness and the reliability of Mr Griffiths' analysis. This has led me to doubt the reliability of his analytical methodology on account of the selectiveness of his assumptions.
This is a matter that has some impact on the reliability of Mr Griffiths' analysis of the damage to the plaintiff's bicycle due to contact with the road surface.

[54]

Discrepant observations concerning damage to the bicycle

In addition to the matters outlined above, I consider that there are other difficulties inherent in Mr Griffiths' approach to analysing the extent, the significance and the cause, of the damage to the plaintiff's bicycle. In my view, those difficulties operate to preclude an acceptance of his opinions on those matters.
There was a discrepancy between the unchallenged observations of Dr Carnavas that on his inspection, the rear wheel of the plaintiff's bicycle was buckled, and was found to have been jammed against the right rear brake pad, and that there was an evident and measureable downward displacement in the right rear axle, which he considered to be due to impact with a motor vehicle from behind. Dr Carnavas' conclusion, based on those observations, was that the bicycle was unrideable.
In contrast, the observation by Mr Griffiths was to the effect that the rear wheel of the bicycle could be spun freely at the time of his later inspection. Whilst Mr Griffiths noted that Dr Carnavas had on his inspection released and removed the rear wheel, and then replaced it into its correct position (Exhibit "5", Tab 6, p 124 line 30) he seems to have placed little analytical significance on those unchallenged factual observations of Dr Carnavas, apparently dismissing the right axle displacement as being consistent with an alternative mechanism involving contact with a pothole (Exhibit "5", Tab 6, p 124 line 51; p 124 line 26), or due to possible post-accident handling of the bicycle, for which there was no evidence other than speculation.
For the reasons already outlined at paragraphs [540] to [542] of these reasons, I do not accept that argument, particularly because, for acceptance, the pothole contact theory wrongly assumed the plaintiff was seated on his bicycle just before he fell, which I have found was not the case.
The unchallenged observations and descriptions of the damage to the bicycle as related by Dr Carnavas, and the very different observations described by Mr Griffiths have led me to conclude that when these two experts carried out their respective inspections, they did not observe the same phenomenon or condition of the bicycle.
The opinion of Mr Griffiths to the effect that the wheel damage could have been due to impact with a pothole was based upon an unproven speculative assumption that could not be supported by reasoned inference to the effect that the plaintiff had been sitting on his bicycle seat at the time of the accident. That incorrect assumption therefore cast doubt upon the reliability of the opinion of Mr Griffiths concerning the mechanism and the dynamics of the accident.
When describing the damage to the rear wheel of the bicycle, Mr Griffiths referred to the distortion or buckling of the wheel, as being a "minor misalignment", or not a "gross deformation".
In my view, these terms were subjective non-empirical adjectival descriptions that were of little assistance to the analysis. I prefer the products of Dr Carnavas' careful examination, which involved descriptive measurements and functional descriptions, as being a more precise and reliable basis for arriving at findings of fact.
Mr Griffiths appears to have approached the consideration of the buckling of the rear wheel of the bicycle as something that could be rectified by "truing" the wheel spokes: Exhibit "5", Tab 6, p 76 line 21. In my view, whilst that statement may well be correct, it did not adequately grapple with the mechanism of damage postulated by the plaintiff's expert, and it tended to downplay and imply that the damage was minor, and could be readily fixed. In my view, that evidence from Mr Griffiths approached the problem incorrectly because the relevant inquiry was what had caused such buckling, not how it could be rectified. I find that Mr Griffiths' comment in that regard was misdirected.
Furthermore, the unchallenged factual description by Dr Carnavas of downward displacement of the rear right axle causing the wheel to jam against the rear right brake pad, did not seem consistent with Mr Griffiths' suggested mechanism of a possible "misalignment that had crept in through wear and tear": Exhibit "5", Tab 6, p 76 line 26.
The apparent inconsistency arises because, if such "wear and tear" was in fact present at the time of the collision, as was implicit in that aspect of the opinion of Mr Griffiths, this would have meant that it was unlikely that the plaintiff's bicycle would have been rideable at the time of the accident, which clearly was not the case, given the location of the accident from the plaintiff's home and the factual observations described by Dr Carnavas, which I accept.
I therefore consider the "wear and tear" comment by Mr Griffiths to be an unhelpful distraction from the issues, particularly since the bicycle had been serviced relatively recently before the accident (Exhibit "B") and the plaintiff was riding it without the difficulty described by Dr Carnavas.
I consider that Mr Griffiths' alternative postulation of "some kind of impact, such as hitting potholes", was not made out on the direct evidence. Instead, it remained an unsupportable speculative inference sought to be drawn based on a part of the ambulance records that was not adopted by Mr Hartley (T82.47) or reliably attributed to the plaintiff: Exhibit "5", Tab 6, p 76 line 27.

[55]

Lack of damage to frame and handlebars

Dr Carnavas had assumed that the lack of damage to the frame, brake levers and handlebars on the plaintiff's bicycle indicated the impact of the bicycle with the roadway was of relatively short duration. He argued that if the bicycle had been travelling at speed, he would have expected to see damage to those areas due to friction between those parts and the road surface over a greater distance: T134.45 - T135.11].
In contrast, Mr Griffiths argued that the "reportedly" wet muddy surface of the road would have "greatly reduced" the potential for dry abrasion and explained the absence of signs of such damage: Exhibit "5", Tab 6, p 124 line 38.
A difficulty with that explanation by Mr Griffiths is the imprecise evidence of the distance over which the bicycle travelled after the plaintiff's fall.
On the plaintiff's case, if a vehicle travelling at low speed had struck the bicycle, it would follow the bicycle would be likely to thereafter travel a relatively short distance, thus reducing the scope for abrasion damage, as was assumed by Dr Carnavas.
The various unattributed assumptions made by Mr Griffiths of the bicycle having travelled either a few metres, or about 3m after the plaintiff's fall, whilst perhaps broadly consistent with the already cited evidence of Mr Bessabava of the plaintiff about a metre or two from where the bicycle was seen on the ground, do not suggest a high speed impact causing the bicycle to drag or bounce on the ground for a significant distance.
Furthermore, if the road surface was wet and muddy with a lower coefficient of friction as postulated by Mr Griffiths, and if the plaintiff had fallen from the bicycle at a high speed, the bicycle would be unlikely to have come to rest so close to the plaintiff. It seems more likely that it would have slid along the muddy surface for a much greater distance than that described by Mr Bessabava or as assumed by Mr Griffiths.
The references by Mr Griffiths to damage he had seen in other bicycles involved in other accidents was a weak and unconvincing argument because it was anecdotal, and not co-related to the facts of the present case.
I also consider Mr Griffiths' opinion in that regard to be unreliable as it is not supported by the facts as found. As explained at paragraphs [354] to [374] above, there was no reliable support for the argued proposition the road was wet, muddy with a low coefficient friction as was assumed by Mr Griffiths.

[57]

Claim of inconsistency with laws of physics

Mr Griffiths claimed that the plaintiff's explanation of the events, and the analysis which was proffered by Dr Carnavas, to the effect that the plaintiff's bicycle had been struck from behind by a motor vehicle, was inconsistent with the fundamental laws of physics which would have resulted in the plaintiff falling backwards and not forwards: Exhibit "5", Tab 6, p 104 line 51; p 105 line 27; p 124 line 45. In my view, that statement was dependent upon a series of assumptions that were not made out in the evidence.
For an expert witness to persuasively assert that an explanation given by an opposing expert was wrong and "contrary to the laws of physics" as was stated by Mr Griffiths (at Exhibit "5", Tab 6, p 105, line 27) it is necessary for the expert to not only rationally identify those laws, but to also convincingly explain the inconsistency of the counter-argument being criticised.
Oracular statements by an expert simply asserting, repeatedly, that the opposing opinion is "contrary to the laws of physics" without explaining that conclusion by reference to the identifiable laws of physics is an insufficiently reasoned statement which should be given little if any weight: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87].
Whilst it is possible Mr Griffiths was referring to the law of gravity, this needed to be clearly explained by the expert in the context of an analysis in which the laws of gravity plural were invoked. A court is not entitled to assume such matters involving expertise where evidence is required to explain such matters: Strinic v Singh [2009] NSWCA 15.
In making his "contrary to the laws of physics" argument, Mr Griffiths has incorrectly assumed that the plaintiff was seated on the bicycle seat immediately before he fell, in circumstances where the seat bore the plaintiff's weight, as explained by him at Exhibit "5", Tab 6, p 76, lines 25 - 36, and as was explained by him in the photographic and diagrammatic examples reproduced in the photographs numbered 14 and 15 on p 77 of that exhibit.
For acceptance, those assumptions depended upon a downward transfer of the rider's mass vertically through the seat post and bicycle frame onto the rear wheel whilst "heavily" striking a pothole, as was assumed by Mr Griffiths at line 36 on p 76 of Exhibit "5", Tab 6.
Those assumptions also depended upon an assumed horizontal distribution of the rider's mass, which was said to represent the limited potential load path comprising a "coupling" of forces between the rider's centre of gravity and the bicycle frame as depicted in photograph 15 on p 77 of Exhibit "5", Tab 6.
In my view, none of those assumptions relating to the distribution of the load of the plaintiff's mass on the bicycle seat, or the assumed centre of gravity of the plaintiff, are adequately reflected in the evidence.
Furthermore, there was no evidence of the plaintiff's actual mass that would enable an accurate resolution of forces analysis. Instead, Mr Griffiths made an unsourced assumption in the form of an estimate of the plaintiff's mass.
In my view, where an expert invokes the "fundamental laws of physics" to reject an opposing opinion, it is incumbent on that expert to do much more than simply refer to the existence of those laws as if they, and their claimed effect, were self-evident without further explanation: Exhibit "5", Tab 6, p 104 line 51.
To the extent that Mr Griffiths sought to justify his opinion by reference to an analysis of the resolution of forces which answers the "magnitude of the inertia of the bike rider" (Exhibit "5", Tab 6, p 104 line 24) in which there was no accurate estimation of the plaintiff's mass, there was an incorrect assumption of "high speed" of the plaintiff's bicycle, and incorrect assumptions as to the plaintiff's centre of gravity and the loading of forces, and where his argument was based only on an approximation of uncertain accuracy of the plaintiff's mass: Exhibit "5", Tab 6, p 104, line 30.
Mr Griffiths based his argument on the fact that the plaintiff was thrown forward, as was evidenced by the injuries sustained to the plaintiff's face, hands, wrists, knees, the axial loading injury to the spine and head, and the absence of any injuries to the plaintiff's back, buttocks or the back of his head: Exhibit "5", Tab 6, p 104, lines 25 - 40.
That argument was said to contraindicate a scenario of the plaintiff's bicycle having been hit from behind (Exhibit "5", Tab 6, p 105 line 27) because, it was argued, an impact to the bicycle from the rear would have caused the plaintiff to fall backwards onto the bonnet of the vehicle if there was such a vehicle: Exhibit "5", Tab 6, p 104, lines 10 - 16.
In my view, the flaw in the analysis advanced by Mr Griffiths was exposed by Dr Carnavas when his evidence was explored. He identified a scenario whereby the plaintiff could feasibly have been thrown forward in the manner claimed when the bicycle was struck from behind if there had been an element of turning or lateral steering of the front wheel of the bicycle or if the impact had been at an oblique angle to the rear wheel of the bicycle: T130.16; T142.40.
Given my finding that the plaintiff's bicycle was travelling slowly, and that he was in the course of steering in a manner in which he was seeking to avoid potholes that were ahead of him, I consider it is highly likely, and more probable than not that, that he undertook a steering or turning movement of the front wheel, and that the striking force from behind was applied at an oblique angle, as was postulated by Dr Carnavas.
In my view, as explained by Dr Carnavas, this accounts for the plaintiff being thrown forward in the events of the accident. I accept the evidence of Dr Carnavas concerning the dynamics of that process as being a plausible explanation for the plaintiff's fall after being struck from behind, most probably at an angle. I consider that evidence to be a convincingly acceptable answer to the claim by Dr Griffiths that the plaintiff's account was contrary to the laws of physics.
I have accepted that immediately before the accident, the plaintiff was standing on the pegs of his bicycle for the purposes of shock absorption whilst he was applying his brakes. This means that the assumptions by Mr Griffiths as to the distribution of the plaintiff's mass in the events leading to him falling from his bicycle are incorrect. If the plaintiff was standing on the pegs of his bicycle, as I have found to be the case, then Mr Griffiths' assumptions as to the downward distribution of the load of the plaintiff's mass, and location of the plaintiff's centre of gravity, fall away, thus rendering the opinion of Dr Griffiths incapable of acceptance.
In his two reports that were tendered, Mr Griffiths had not considered Dr Carnavas' explanation of a turning of the front wheel of the bicycle in conjunction with either being struck by a force directly from behind, or at an oblique angle.
I do not consider the cited explanations of Dr Carnavas to be far-fetched, fanciful or remote. This is because the plaintiff was riding on a road that was acknowledged to be in poor condition, with a gravel and potholed surface. In those circumstances, I consider it very unlikely that he would have been riding in a perfect straight line as he approached the field of potholes that were described in the evidence as being ahead of him.
Rather, I consider it more probable than not, that in moving at a relatively slow speed akin to a walking speed so as to position his bicycle to steer around the potholes ahead, he would most likely have been steering the front wheel either to one side or the other, at least slightly, rather than in a continuous straight line. I infer from the evidence of the plaintiff that the former was the case.
Consequently, the opinions of Mr Griffiths based on "the fundamental laws of physics" must fall away once it is recognised that those opinions are based on incorrect facts, an incomplete analysis, and on inadequate explanations. I therefore find the opinions of Mr Griffiths in this case to be unreliable, such that they should not be accepted.

[60]

Involvement of an unknown motor vehicle

The foregoing analysis has led me to the following conclusions: 1. The plaintiff's evidence of his perception of having been struck from behind by a force which he presumed or believed to be a motor vehicle, as summarised and analysed above, was not inherently or glaringly improbable; 2. The plaintiff's evidence has not been relevantly contradicted by other credible or reliable factual evidence; 3. The defendant's expert evidence did not provide a reliable source of contradiction of the plaintiff's evidence when the assumptions underpinning the defendant's expert evidence are identified, properly understood and analysed; 4. The analysis and the opinions of Dr Carnavas have identified a credible and reasoned argument that supports the plaintiff's case that the plaintiff was struck from behind by a motor vehicle, as claimed.
Those conclusions require that I now turn to the question of whether an unidentified motor vehicle was involved in the accident that injured the plaintiff as claimed, and a consideration of the defendant's submissions to the contrary of that proposition.
The defendant submitted that the absence of skid marks on the roadway was a negative factor which weighed against the plaintiff's argument for inculpating the involvement of an unknown vehicle: T219.8. I do not consider this submission to be persuasive because it necessarily assumes the driver of the alleged vehicle made an attempt to stop, whereas the equally available inference is that there may have been a failure of the driver to brake or to stop, in which case skid marks from such a vehicle would have been unlikely. In my view, the absence of skid marks referable to a vehicle that allegedly hit the plaintiff should be seen to be a neutral matter as that scenario is also consistent with such a driver having failed to keep a proper lookout.
The defendant submitted that because the plaintiff did not hear any sounds of a vehicle approaching from behind, this was a telling matter that weighed against an acceptance of his case: T218.40; T219.39: T238.5. In my view the fact that the plaintiff did not hear the sound of a horn, an engine, or any other noise from an approaching vehicle, is not a matter that contradicts his case. This is because the sound of such a vehicle could have been of variable intensity or loudness. In combination, the plaintiff's helmet may also have to some degree affected or shrouded his perception of noise, as would ambient bush noise, road noise from the bicycle, and the noise of the bicycle brakes. In my view, there is no reasonable basis for concluding that a vehicle horn had necessarily been sounded, or that the sound of an approaching vehicle would necessarily have been heard by the plaintiff.
The defendant pointed to the delayed mention by the plaintiff of the involvement of a motor vehicle, in the period between 2 and 12 September 2012, as an indication that there was no such vehicle: T228.35; T231.4.
In my view that submission should not be accepted, given the plaintiff's medical status, which was for a time described as involving incoherency on his part, and because of his documented impaired mental functioning, as was recorded in the hospital notes. Furthermore, the plaintiff did not actually know there had been a motor vehicle involved in the incident. His conclusion or belief to that effect only came after a period of disorientation, haziness and confusion began to recede after he received pain relief in hospital in Brisbane.
Given the early concerns expressed by hospital staff as to the plaintiff's mental functioning following his injuries, and contrary to the defendant's submission, I do not accept as significant, the early non-mention by the plaintiff of his belief as to the involvement of a motor vehicle in the events that caused him injury.
The plaintiff had formed the belief a motor vehicle had been involved. He inferred this from the shunt that he had felt from behind. Given the plaintiff's lack of actual knowledge on the factual question of whether there was such a vehicle, this meant that the answer to that question was largely dependent upon an expert evaluation of the kind undertaken by Dr Carnavas and Mr Griffiths, and this required a consequential factual analysis aided by expert evidence. This is because the plaintiff's evidence alone could not reasonably support the conclusion he seeks in this case.
For the reasons that follow, I am satisfied that an unidentified motor vehicle struck the plaintiff's bicycle from behind as claimed, and that such motor vehicle has not been identified after due inquiry and search.
I accept the plaintiff's evidence that immediately before he fell from his bicycle, whilst he was standing on the pegs of his bicycle, he felt what was described as a shunt or an inertia from behind, which propelled him forward from his bicycle, as he has claimed: T16.36; T17.14; T20.37 - T20.45; T31.15; T32.15 - T32.29.
I have concluded that the evaluation undertaken by Dr Carnavas was cogent and reliable, and that it supported the plaintiff's belief in that regard.
The defendant submitted, on the basis of the photograph comprising Exhibit "C", that the plaintiff had encountered "quite a long streak of potholes coming down to the ultimate one": T229.25 - T229.31. This was said to base the conclusion that he had ridden into a pothole and then fallen from his bicycle. I have determined that the ambulance report is an unreliable source of such an assumption, notwithstanding that Mr Hartley gave oral evidence: Mason v Demasi [2009] NSWCA 227, at [2].
In my view, the interpretation of Exhibit "C" as sought by the defendant, is not open, given the constraints on interpreting such photographic images, particularly where that photograph had been enhanced during the printing stage: Blacktown City Council v Hocking [2008] NSWCA 144. An examination of Exhibit "C" shows some varied areas of either dappled light and shade on the roadway, or perhaps potholes. It is difficult to distinguish between those alternatives on the basis of what is shown in the photograph alone. I accept the evidence of the plaintiff that the potholes in question were ahead of him at the time he was propelled forward. I do not interpret Exhibit "C" to be contradictory of that evidence.
The defendant submitted that the plaintiff's bicycle was travelling too fast for the prevailing conditions, and had struck a pothole, causing him to go over his handlebars: T233.25. I do not accept that summation of the events in view of Dr Carnavas' explanation of the plausibility of the physics of the plaintiff's bicycle being struck from behind, thereby causing him to go over the handlebars rather than to fall backwards. The defendant's assertion of speed on the plaintiff's part was an unsupported speculative assumption made by Mr Griffiths without evidence: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.
I find that the plaintiff was approaching the "field of potholes" ahead of him at a relatively slow speed whilst applying the brakes, and whilst he was steering a course intending to avoid those potholes. In those circumstances, I find that the defendant's theory that a wheel on the plaintiff's bicycle had struck a pothole whilst travelling at high speed was an improbable and speculative explanation for the plaintiff's fall.
Furthermore, accepting as I do, the plaintiff's description of the events of the journey immediately before his recollection of events ceased, particularly his perception of having felt a force or a shunt applied from behind, I consider it was that force or shunt which caused him to be propelled from his bicycle, and to fall onto the roadway.
In reaching that conclusion I have not overlooked the alternative possibility that, whilst riding his bicycle, the plaintiff might have simply fallen from his bicycle and then landed onto the roadway in the position in which he was found.
I consider that latter explanation to be unlikely because, as Mr Griffiths has analysed, based on such of the plaintiff's medical records that he saw, the plaintiff's injuries comprised an axial loading to his head and spine, and injuries to his face and limbs in a manner that was consistent with being flung or propelled forward by a force.
On my reading of the analysis by Mr Griffiths of the plaintiff's injuries, it is unlikely such injuries would only be sustained to the front of the plaintiff's body if the plaintiff had simply fallen from his bicycle, whether as a result of a wheel of the bicycle hitting a pothole, or by simply falling off the bicycle. In view of the extent of the plaintiff's injuries, I consider that the scenario of an unassisted fall may be properly excluded because of the relatively slow speed of the plaintiff's bicycle in the moments before the accident. The defendant's theory that a wheel of the plaintiff's bicycle had struck a pothole which led to the plaintiff's fall remains unproven speculation. I accept the plaintiff's evidence that immediately before the accident the potholes were ahead of him.
The defendant has asserted that the reasoning adopted by Dr Carnavas to the effect that the plaintiff's bicycle was struck by a vehicle was specious: T232.8. I consider Dr Carnavas' finding and evaluation of the displaced right rear axle to be an effective answer to that criticism, as he has explained. I reject the proposition that Dr Carnavas had engaged in specious reasoning. There was nothing implausible or specious in his reasoning, as was claimed by the defendant.
I accept the opinion of Dr Carnavas to the effect that the damage he had observed on the plaintiff's bicycle at the time of his inspection, particularly the displacement of the right rear axle, was caused by an impact to the plaintiff's rear bicycle wheel from behind, causing not only a buckling of the rear wheel, but also causing a downward displacement of the right axle of that wheel into the abnormal position he had observed, described and measured. I accept that the combination of those observations rendered the plaintiff's bicycle unrideable until Dr Carnavas re-seated the rear wheel axle following his inspection.
In that regard, I also accept the opinion of Dr Carnavas that for such downward displacement to occur, the force of an impact must have been applied from behind the plaintiff, and at a height of about 34cm from the ground, and at a height about 6cm above the level of the rear axle of the plaintiff's bicycle: T125.8; T125.25.
I consider that the height at which such force was applied was consistent with an impact from a range of heights of motor vehicle front bumper bars, as was explained in the evidence of Dr Carnavas.
In my view, that evidence, and the finding made by Dr Carnavas of the downward displacement of the right side of the rear axle, and Dr Carnavas' analysis as to how that finding was likely to have arisen, take the theory of an impact from a motor vehicle outside of the realms of mere speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. In my assessment, the analysis put forward by Dr Carnavas was sufficiently and adequately reasoned, and I accept that analysis: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. In my view, his evidence was not of the kind that attracted critical comment in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [39] - [43].
In my view, the unchallenged finding by Dr Carnavas of the downward displacement of the right rear axle and his explanation for that finding takes his conclusions, which I accept, beyond a choice "between guesses". The fact of that axle displacement forms a basis for a definite conclusion on the balance of probabilities that inculpated the involvement of an unknown vehicle: McLennan v Nominal Defendant [2014] NSWCA 332, at [86]; Sgro v Australian Associated Motor Insurers Ltd [2015] NSWCA 262, at [44].
Consequently, I accept it was a motor vehicle that had applied the force from behind which the plaintiff described in his evidence.
In my view, because of the plaintiff's recognition of a need to steer a path around potholes on the roadway ahead as he approached them, on the balance of probabilities, this made it unlikely that he was travelling in a continuous straight line on the gravel surface of the dirt road. As was explained by Dr Carnavas, this made it more likely that the plaintiff's bicycle was struck from behind at an oblique angle rather than perpendicularly to the rear wheel of the bicycle. I accept that this explains why the plaintiff was thrown forward onto the roadway, as was explained by Dr Carnavas. As summarised at paragraph [280] above, that explanation is entirely consistent with the laws of physics, as was explained by Dr Carnavas: T130.16; T142.40.
For those reasons, except insofar as he noted and described the location and distribution of the plaintiff's injuries as being to the front of the body, I do not accept the contrary opinion of Mr Griffiths, whose opinions were not based on the found facts as outlined at paragraphs [530] - [599] above.
The defendant was critical of the fact that, contrary to the evidence of Mrs Cordin, no relevant entries mentioning the involvement of a motor vehicle appeared in the notes of then Probationary Constable Antequil.
In my view, the absence of such a note was consistent with Mrs Cordin's evidence that as no police events number had been assigned at the initial visit, as she claimed, at which time there was scant information, and which later prompted her to return to the police station on 12 September 2012 in order to pursue the matter. The fact that this occurred after legal advice was obtained is not surprising, and in my assessment, nothing turns on that fact.
I do not regard the defendant's submission as to the absence of a note by Probationary Constable Antequil to be a matter of significance to determining the central question of whether a motor vehicle had been involved in the incident. In my view, the defendant's submission is grounded on suspicion which is not borne out by a consideration of the evidence as a whole, particularly given that in the days immediately after the accident, the Cordin family would have very likely have been substantially occupied with concerns over the plaintiff's seriously injured condition of health, and not necessarily with the detail of what was required to be undertaken in order to pursue a claim against the Nominal Defendant. I consider the defendant's submission to the contrary to be based on the application of an unwarranted counsel of perfection which has been conveniently applied in hindsight.
On the above analysis, on the balance of probabilities, I consider it was more probable than not, that the circumstances of the plaintiff's injuries involved an unknown motor vehicle striking the rear wheel of the plaintiff's bicycle from behind, thereby causing the plaintiff to be thrown forward onto the roadway ahead, as explained by Dr Carnavas, and resulting in the plaintiff sustaining the injuries that have been documented.
I now turn to consider the question of whether that vehicle had been driven negligently.

[61]

Alleged negligence of the driver of the unidentified vehicle

The question of whether or not the driver of the unidentified motor vehicle was negligent must be considered according to the requirements and preconditions of s 5B and s 5C of the Civil Liability Act 2002.
The duty of a driver of a motor vehicle to exercise reasonable care may be conveniently summed up by the statement that the driver of a motor vehicle must maintain control over the speed and direction of the vehicle in such a way that the driver may know what is happening on and around the roadway in the vicinity of the vehicle, and to be able, in a timely manner, to take reasonable steps to react to those events with the objective of avoiding collisions and harm to others in the vicinity: Manley v Alexander [2005] HCA 79; 223 ALR 228, at [12].
The driver of the motor vehicle that struck the plaintiff ought to have been taking reasonable care by keeping a proper lookout to the roadway ahead in order to appropriately deal with foreseeable risks.
I find that if that course had been followed, the driver would have seen the presence of the plaintiff on his bicycle on the relatively narrow roadway ahead, and that driver then ought to have taken precautions aimed at avoiding a collision between that vehicle and the plaintiff's bicycle.
In the circumstances, those precautionary steps would have been to either stop or slow down in order to keep a safe distance behind the bicycle in front in order to avoid striking the bicycle. Such precautionary steps, if not bringing the vehicle to a halt, would also have involved slowing down and steering a course away from the bicycle in order to avoid a collision, and sounding the horn as a warning of the approach and proximity of the vehicle. This was in the context of a potholed rural road, with the possibility of ambient bush and road noise, and the fact that the plaintiff was wearing a helmet, these being factors that may have had the foreseeable effect that the approach of a vehicle from behind may not have been readily apparent to the plaintiff.
In such circumstances, the driver of a vehicle approaching the plaintiff from behind ought to have realised the foreseeability of the not insignificant risk of a collision where a reasonable person in the position of such a driver would have taken the precautions identified in the immediately preceding paragraph. This was in circumstances where there was a well known and significant probability of serious harm to the plaintiff if there was a collision with even a slow moving vehicle and the plaintiff's bicycle, where there was no particular or significant burden of taking the identified precautions, and where there was no social utility that justified not taking such precautions: s 5B(1)(a)-(c) and s 5B(2)(a)-(d) of the Civil Liability Act 2002.
The provisions of s 5C of that Act have no application to the circumstances under present consideration.
If the driver of the vehicle approaching the plaintiff from behind had sounded the horn as a warning to the plaintiff, I consider it likely that the plaintiff would have heard the sound of it, and he would have been able to recount that fact, as his memory of the events occurring immediately before feeling the shunting force he described from behind, was intact. I therefore accept and find that in the moments leading up to the collision, there was no warning horn sounded from the vehicle that struck the plaintiff's bicycle.
There is a question of the riding position the plaintiff had adopted on the roadway in the lead up to the collision. The centre foreground of the photograph comprising Exhibit "C" shows the potholes the plaintiff was approaching were generally in a distribution in the centre and across the general width of the roadway.
The plaintiff could only recall riding in a road position that enabled him to negotiate a course around the potholes that he had seen. He could not say whether or not the actual course he was taking occupied the centre or the side of the roadway he was riding upon.
Recognising the earlier identified limitations on drawing conclusions from what is shown in photographs, it is nevertheless reasonably apparent on the evidence that the roadway was relatively narrow. This is shown by the relative width of the roadway and the extent to which the white vehicle shown in the photograph comprising Exhibit "C", occupies a significant width of the roadway.
In those circumstances, the driver of a vehicle travelling in the same direction as the plaintiff, and keeping a proper lookout, on approaching the plaintiff from behind, would not have failed to see the plaintiff ahead riding his bicycle relatively slowly at a speed that was about the same as a walking pace. On a rural dirt road, where it was plain that potholes were present, it ought to have been similarly plain to such a driver that a bicycle rider ahead would need to negotiate those, or similarly located, potholes.
In my view, this would have required the driver of the vehicle following behind the plaintiff to refrain from bringing the vehicle into close proximity to the plaintiff for the purpose of overtaking him, and maintaining that road position, until it was safe to overtake.
This could have easily been achieved by either decelerating or braking. To do otherwise, invited the risk that even a slight change in steering direction of the slow moving bicycle in order to negotiate a path around a pothole risked a collision with a vehicle being driven in close proximity to and behind the bicycle, whether overtaking or not. In those circumstances, the duty of that driver was to keep the vehicle clear of the foreseeable path of the bicycle ahead.
In those circumstances, given my finding that there was a collision between the unknown vehicle and the plaintiff's bicycle, for the reasons outlined above, I find that the collision occurred due to the negligence of the driver of that vehicle because of failure to keep a proper lookout, failure to provide due warning to the plaintiff, and failure to either stop, slow down, and maintain a safe distance behind the plaintiff.

[65]

Reasons for expert evidence ruling during trial

At the close of the plaintiff's case, the defendant sought to call its crash reconstruction expert, Mr Griffiths, to give oral evidence: T142.45.
That course was initially objected to on behalf of the plaintiff on the basis that, as Mr Griffiths had not been required for cross-examination on the content of his two served reports, and unless otherwise ordered, the assumed position was that his evidence in chief should be taken to be as set out in those reports: UCPR r 31.21.
The plaintiff argued that as Mr Griffiths was not required for cross-examination, there would be no purpose in calling oral evidence from him other than to seek an "otherwise" order.
A question then arose as to whether Mr Griffiths should be called to give evidence in circumstances other than those primarily contemplated by that rule. That matter was the subject of submissions and discussion which remained part-heard and therefore un-concluded overnight on the 2nd day of the trial: T142.1 - T145.30. In the course of discussion, it was again suggested that the experts meet on the matter at issue to prepare a short report: T144.14. The objective of that suggestion was not achieved.
On the following morning, in the course of further argument on the issue (T146 - T161), it transpired that in addition to the two reports by Mr Griffiths which had been served, the legal representatives of the defendant had asked him to prepare a further document overnight, which was handwritten by him, and which was said to form the basis of the oral evidence that the defendant was seeking to adduce from him at that time.
That document was described as comprising "four pages of diagrams and tyres (sic) and mathematical calculations, and formulas", and as such, it was clearly an expansion of the earlier written opinions within the served reports of Mr Griffiths: T153.10: MFI "10".
In order to tender that document, the defendant must show exceptional circumstances for the granting of leave to do so as the report had not been served 28 days before the hearing: UCPR r 31.28(1)(c) and 31.28(4).
On behalf of the plaintiff, that document was described as requiring translation into the form of a written report in the commonly understood sense, so that at the request of the plaintiff, Dr Carnavas could then give it methodical consideration. This would in turn then also require some considerable adjournment time beyond the scope of the extended sittings at Lismore, so as to enable counsel for the plaintiff to properly deal with that further expert opinion material: T156.15 - T156.38.
Accordingly, the plaintiff maintained the objection, and submitted that the course proposed by the defendant would cause unreasonable delay and would offend the well understood requirements of justice, quickness and cheapness, embodied within s 56 of the Civil Procedure Act 2005.
In response to that submission, the defendant has not persuasively pointed to any matter that would justify the exercise of the discretion as sought for the making of an order for a course other than the one that is primarily contemplated by UCPR r 31.21, which provides that unless otherwise ordered, the evidence in chief of an expert should be taken to be as set out in the reports of the expert: T156.40 - T161.50.
In support of the defendant's position, it was argued that the need for Mr Griffiths to be called to give oral evidence arose from an aspect of the oral evidence given by Dr Carnavas in the form of an answer he gave to a question asked of him in cross-examination to the effect that it was "not possible" for the axle of the rear wheel of the plaintiff's bicycle to be displaced in the manner he had observed, on the assumption that the plaintiff's bicycle wheel had gone down into a pothole, and had then bounced back against the weight of the rider in the dynamics of the accident as argued by the defendant.
Dr Carnavas had stated that in those circumstances, the axle would not have become displaced within the frame of the bicycle due to reaction with [sic for to] the weight of the rider. He added "that's not possible" and repeated that answer several times in answer to questions asked of him in cross-examination: T136.4 - T136.22.
The defendant submitted that this was something Dr Carnavas had added to his report, and claimed that it was something which he had not previously said: T147.5.
I do not accept that submission because the subject matter at issue was clearly identified in the first report of Dr Carnavas, which was dated 2 April 2014, and which had been served on the defendant on 12 February 2015: Exhibit "A", Tab 1, section 4, par 4.
In that report Dr Carnavas stated: "… If the Bicycle was jumped or "bunny-hopped" over a pothole so that the front wheel cleared it but the back wheel made impact, then this could account for the buckle in the rear wheel. However, it would not account for the downward displacement of the rear axle on the right hand side because such an impact would force the wheel upwards;" [Emphasis added]
In my view, the statement by Dr Carnavas to the effect that the postulated mechanism was in substance "impossible" was no different to the emphasised aspect of Dr Carnavas' opinion cited in the preceding paragraph.
In my view, the cited oral evidence of Dr Carnavas given in answer to questions posed in cross-examination had not introduced any new matter not covered by his reports. He simply reiterated the same concept to which he had earlier referred, but using slightly different words. For those reasons, I do not accept the defendant's argument that a new matter had been introduced which the defendant needed its expert to address.
In his report dated 2 March 2015, Mr Griffiths took the opportunity of commenting upon selected portions of the report of Dr Carnavas dated 2 April 2014. In that report, Mr Griffiths stated, without reasons, that one of Dr Carnavas' arguments was "contrary to the laws of physics".
In particular, in commenting on section 4 of that report, Mr Griffiths specifically focussed upon the scenario raised by Dr Carnavas concerning the rear wheel of the bicycle passing over a pothole. In respect of that scenario, he commented: "This would make the rear wheel more prone to damage when passing over a pothole": Exhibit "5", Tab 5, p 124.
In providing that evidence, for whatever reason, Mr Griffiths' report did not deal with the axle displacement issue or argument raised by Dr Carnavas in his report at Exhibit "A", Tab 1, p 6, other than by identifying the fact that he had not made the same observation (Exhibit "5", Tab 6, pp 76 and 102) and by the fact that he dismissed the argument without evidence, in a speculative manner, by reference to assumed post-accident handling of the bicycle: Exhibit "5", Tab 6, p 124 line 25. In my view, the defendant appeared to be seeking to overcome the omission by calling Mr Griffiths to give oral evidence on a point that had not been covered in his report.
In my view, the true position is that no new matter was raised by the oral evidence of Dr Carnavas. The cross-examiner had sought to test that portion of Dr Carnavas' already flagged opinion without having evidence to contradict or rebut that opinion. It seems that what the defendant was seeking to do was to adduce oral evidence from Mr Griffiths on this point where his existing reports were silent on the topic.
In my view, the plaintiff's objection to that course was well founded as the defendant was seeking to change the parameters of its expert evidence at a point where the trial was almost concluded. If that course had been allowed, this would have been a source of real and not just presumptive prejudice to the plaintiff. I considered that this should not be permitted, for the reasons that follow.
The issue arose in the course of an already extended week of circuit sittings, with competing demands on available court time, where the objective was to try to deal with a number of waiting cases that would be otherwise not reached in the sittings. The parties were therefore advised, having regard to those time management constraints, that more expansive reasons for my decision for declining to grant the defendant leave for Mr Griffiths to be called, would be incorporated into these reasons for judgment: T217.3 -T217.4
At the time the issue arose, I concluded that the application for leave should be refused for a number of reasons. First, there was no justification for leave to be granted, primarily because the claimed contentious topic of evidence given by Dr Carnavas had already been flagged in the first report of Dr Carnavas as explained above. Secondly, it was apparent that the defendant was seeking to take a different tactical course to the one it had previously decided to follow, which if allowed, would create an unjust prejudice to the plaintiff, as explained below.
The broad context in which the matter at issue here arose, was that this case was not reached at the previous sittings of the court on circuit in Lismore, and the commencement of the case had been delayed in the current sittings because of the need to first deal with a number of childcare appeals which had taken priority in the running list. It was for those reasons that the sittings had been extended by one week to deal with cases that would otherwise be not reached, including some for a second time.
In the lead up to the listing of the present proceedings for hearing, both parties had approached this case by serving expert evidence, and by making forensic decisions about which, if any, of the opinions of the respective experts would be the subject of challenge by cross-examination.
The defendant chose to challenge the opinions of Dr Carnavas, first by introducing evidence in the form of opposing reports by Mr Griffiths, and secondly, by seeking to cross-examine Dr Carnavas on specific matters in his expressed opinions which the defendant wished to contest. That was a course which was unquestionably open to the defendant.
The plaintiff chose a tactical course whereby Mr Griffiths' opinions would only be attacked through arguments made in submissions rather than by cross-examination. That approach seemed to be based on attacking the relevance and applicability of the assumptions made by Mr Griffiths in his reports. That too was a course which was unquestionably open to the plaintiff.
In that scenario, in the ordinary course of events, at the conclusion of evidence and argument, the court would have been left to engage with the competing expert opinions and the factual basis of those opinions, and to analyse them for cogency, and for their persuasive appeal. That too was an unremarkable feature of litigation of this kind, except that in preparing and presenting the case, the overriding obligation of the parties was to assist the court to achieve the facilitation of the just, quick and cheap resolution of matters in dispute: s 56 of the Civil Procedure Act 2005.
In the spirit of those obligations, on the afternoon of Tuesday 27 October 2015, before the hearing commenced, the parties were invited to consider following a modified application of UCPR r 31.24(1)(c) and related provisions by arranging for the opposing experts to meet in conference in order to seek to narrow, if not resolve, the extent of the expert matters in dispute between the parties before their evidence was given. The aim of that suggestion was for a short joint report or memorandum to be prepared, and if required, the respective experts could then be sworn to give their evidence at the same time, as contemplated by UCPR r 31.35(c).
That suggested course was not followed. That was a decision which was open for the defendant to take because at that time, the defendant did not intend to call Mr Griffiths to give oral evidence, and the plaintiff did not require Mr Griffiths to be called for cross-examination on his reports: T1.45.
When the subsequent application to call Mr Griffiths was pursued on the 3rd day of the trial, on 5 November 2015, it was plain that if Mr Griffiths was to be called, a further report containing his proposed evidence was a necessary pre-condition. That much was recognised and accepted by the defendant: MFI "10".
It was also plain that if a further report along those lines was to be relied upon by the defendant, in those circumstances, it was only fair that there be no irremediable prejudice to the plaintiff, such as in the nature of an ambush of the kind that is discouraged in modern litigation: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, at [30] - [31], [45] - [46].
In that regard, it must be recognised that prejudice is not always remedied by an order for costs where an irreparable element of prejudice arises in the form of delaying the proceedings: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [4] - [5]. It seemed to me that kind of prejudice would have arisen if the defendant was permitted to call Mr Griffiths in the described circumstances.
In coming to that view, it is recognised that although case management principles are important, they do not necessarily or always require slavish adherence, but rather, the interests of justice between the parties should be the central focus.
In that regard, the stresses and uncertainties of litigation, including the potentially ruinous cost of litigation, including litigation that would be prolonged where an indulgence is sought, also needs to be balanced in the consideration: Richards v Cornford (No 3) [2010] NSWCA 134, at [42]. If granted, the application would have certainly prolonged the litigation and extenuated the factors described above.
Leave is required before a party may rely on a report not served in accordance with UCPR r 31.28(1)(c) and such leave is not to be given unless exceptional circumstances are shown that warrant the granting of leave: UCPR r 31.28(4)(a).
The discretion on whether or not to dispense with a procedural requirement of the rules involves a decision, order or direction for the management of the proceedings within the meaning of s 58(1) of the Civil Procedure Act 2005. That provision requires that any such decision must be exercised by the court seeking to act in accordance with the dictates of justice, which in turn requires that justice be afforded to both parties, and not only to the party seeking the benefit of the order sought.
The exercise of discretion is subject to mandatory considerations: s 56, s 57 and s 58(2) of the Civil Procedure Act 2005.
The granting of an order as sought by the defendant must also be balanced against the potential for prejudice to arise to the plaintiff's position. That balancing exercise requires that account be taken of the considerations identified in the provisions of s 58(2) of the Civil Procedure Act 2005.
I now turn to consider those factors as to relevance to this case.
The degree of difficulty and complexity of the issues for the experts to consider arises in the context where, in this case, the expert opinions are in a state of complete disagreement: Exhibit "A", Tab 2, p 15, par 4.1. If, as was sought by the defendant, further oral evidence was to be called from Mr Griffiths on the topic in question, a much wider and extended evidentiary terrain would need to be traversed, whereas beforehand, the defendant had elected not to elicit more detailed expert evidence on the point. In that context, a grant of leave sought would add substantially to the length of the time required to complete the hearing and the timing of the completion of the hearing, as well as the costs of the hearing: s 56(1); s 57(1); s 58(2)(b)(i) & (vii) of the Civil Procedure Act 2005.
That additional layer of anticipated extra costs and the associated delay involved if the defendant's application was granted seems disproportionate to the factual issues to be decided where the matter sought to be addressed by the defendant was not new matter introduced by the plaintiff's expert, as was claimed: s 58(2)(b)(vi) and (vii) of the Civil Procedure Act 2005.
The problem arises in a context where the parties have already been delayed by a not reached marking at earlier sittings of the court on circuit, and in circumstances where they were otherwise prepared to go to trial on the basis of existing reports, and the anticipated cross-examination of Dr Carnavas: s 58(2)(b)(ii) and (iii) of the Civil Procedure Act 2005.
The problem now confronting the defendant would most likely have arisen at a much earlier stage if the experts had conferred in order to seek to identify areas of agreement and disagreement. Neither party sought to either raise or seek to convene a meeting of experts, where such a meeting would have clearly been within the spirit of s 56 and s 57: s 58(2)(b)(iv) and (v) of the Civil Procedure Act 2005. The parties could have achieved this without an order of the court.
The consequence of allowing a further report from Mr Griffiths, which had not yet been finalised into a suitable form for service, at a point near the end of the trial, would have inevitably delayed the conclusion of the case by some months in order that the plaintiff's representatives be afforded a just opportunity to deal with a further report from Mr Griffiths.
Such delay would have arisen because the court's roster arrangements would have required a resumed hearing in Sydney. The court's existing timetable for listing arrangements could only accommodate a not so short part-heard case, until well into 2016. This is because other cases have already been listed for hearing in Sydney for that time range, and would need to be displaced for this case to continue in Sydney, thus inconveniencing and causing difficulty to other litigants: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [93]; [113]; Kelly v Jowett [2009] NSWCA, at [58]; Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64, at [39].
That outcome is to be avoided if reasonably possible, particularly as the matter had already not been reached on circuit. Furthermore, the cost to the plaintiff of the delay, in terms of the continued stress of unresolved litigation, is also a considerable factor to be taken into account. The extra costs to be borne by the plaintiff, would arise from the need for further advice to be obtained from solicitors, counsel, and the expert witnesses, and the cost of an additional hearing fixture of unknown duration, involving the fees of expert witnesses, solicitor's costs and the fees of junior and senior counsel. My impression is this would amount to more than just a few thousand dollars. In my view, in the circumstances this would appear to be unduly burdensome, and would serve to add to the injustice of the circumstances: s 58(2)(b)(vi) of the Civil Procedure Act 2005.
I consider that an order for costs in favour of the plaintiff on that issue would not outweigh that burden because whilst it might provide indemnity for the extra exposure, it would not overcome the prejudice of delay caused by prolongation of the litigation.
If the defendant's intended course was allowed, the plaintiff's claim of prejudice could not be ignored. The change of course suggested by the defendant would have necessitated an adjournment for the purpose of enabling the handwritten draft document prepared by Mr Griffiths (MFI "10") to be finalised and translated into a reasoned report, so that the plaintiff's legal representatives could fairly consider such a report, and then obtain expert advice upon it, and then most probably, obtain a further report from Dr Carnavas, who would then have to be recalled to give further evidence.
Such further evidence would then most likely, either by consent or by orders pursuant to UCPR r 31.20, require a meeting or conference of experts: UCPR r 31.20(2)(h) and UCPR r 31.24 - r 31.26. This would most probably be required in order to address expert questions yet to be fully identified, followed by the preparation of a joint report or memorandum setting out matters agreed or not agreed by the experts, then followed by the experts giving their evidence concurrently at a resumed hearing, as envisaged by UCPR r 31.35(c), and the related provisions.
All of those events, which would obviously be accompanied not only by significant extra expense, but also a considerable delay, additional uncertainty and litigation stress, if the court exercised a discretion in favour of one party to the disadvantage of the other, to permit reliance on a further report from Mr Griffiths that was not compliant with the requirement that such a report be served 28 days before the hearing: UCPR r 31.28(1)(c).
In my view, the plaintiff has not acted unreasonably in withholding consent to that course because of the obvious prejudice and burden that would result from the course proposed by the defendant where no exceptional circumstances exist for a different order to be made.
I therefore considered that in the described circumstances, the dictates of justice required that the defendant's application to rely on a yet to be finalised report of Mr Griffiths, and related oral evidence, should be refused.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (69 paragraphs)

Parties

Cases Cited (19)