Egan v Mangarelli & Ors

Judgment 1HIS HONOUR: Nature of proceedings On 1 July 2007 a collision took place between a bus owned by the second defendant, which was being driven by the first defendant, Mr Mangarelli, and the plaintiff. As a result of that collision, the plaintiff suffered brain damage and the loss of his right leg, which was amputated above the knee. The plaintiff said that he was commencing to cross Bunker Parade while straddling a bicycle when the collision occurred. The plaintiff said that Mr Mangarelli, and through him the second defendant, was negligent in failing to keep a proper lookout and in failing to apply the brakes on the bus in time. 2Liability and damages were both in issue. The matter occupied 13 hearing days - 22 November to 6 December 2011 and 10 - 13 April 2012. Factual background 3Unless otherwise indicated, I find the facts to be as follows. 4The plaintiff was born in December 1990 and was aged 16 at the time. He is now 21. Shortly before the accident, the plaintiff and his friend, William Aslett, who was then aged 14, decided to ride their bicycles to Bonnyrigg Plaza in order to get some lunch. To get there, they rode along an unnamed laneway which started at a park some hundreds of metres back from Bunker Parade, a suburban street in Bonnyrigg. The laneway continued on the other side of Bunker Parade. The plaintiff and Mr Aslett were travelling in a generally westerly direction. 5At the intersection of the laneway with Bunker Parade, there is a cement ramp which allows wheeled vehicles to access the roadway without having to negotiate the cement kerb. At that point Bunker Parade runs in a generally north-south direction. The surface of the laneway and of Bunker Parade is asphaltic concrete. A footpath exists along both sides of Bunker Parade, including a sealed area at the bus stop where the bus stopped before the accident. 6There is a wooden fence on the north side of the laneway which effectively limits the view of persons in the laneway towards any bus located at the bus stop. It also limits the view of a bus driver at the bus stop towards the laneway. The distance from the fence line to the eastern kerb of Bunker Parade at the ramp was 6.7 metres. The width of Bunker Parade at that point was 11 metres. The accident occurred at approximately 12.12pm on Sunday, 1 July 2007. 7The bicycle on which the plaintiff was travelling was described in the police COPS report (exhibit AO p3) as follows: "A racing bicycle, however it has a mountain bike tyre fitted to the front which is of smaller diameter than the bicycle was designed for. As such, the front brakes do not make contact with any part of the front wheel. The rear brakes were tested and found to be functioning correctly. However, the tyre was completely bald." 8The bicycle did not appear to have sustained any substantial damage in the incident such as the distortion of its frame or wheel rims as would be consistent with having been driven over by the tyres of the bus. It was accepted that the position of the bicycle shown in police photographs taken following the accident, might not have been precisely where the bike was positioned following the accident. This was because the bike had been moved so that access could be gained to the plaintiff. The experts agreed, however, that the position of the bike shown in the police photographs was generally in accord with where they would have expected it to be. 9The bus was yellow-green in colour with a wide windscreen. The wheel base was approximately 6.4 metres and the width approximately 2.5 metres. The overall length of the bus was 12.5 metres and the front overhang to the commencement of the front wheels was 2.6 metres. 10It was the defendants' case that the accident could not have occurred in the way described by the plaintiff. In order to understand the factual issues which arose, it is necessary to set out the allegations in the Amended Statement of Claim and the relevant liability evidence. Amended Statement of Claim "7. On 1 July 2007 the plaintiff rode a certain bicycle west upon an unnamed laneway that transected Bunker Parade, Bonnyrigg in the State of New South Wales. 8. The plaintiff brought the bicycle to a stop at the eastern kerb of the said Bunker Parade. 9. At the same time the second defendant's bus, registration No MO 8337, was stopped at the bus stop a few metres to the north of the plaintiff's position. 10. The plaintiff, then straddling his bike, commenced to walk the bike in a westerly direction with the intention of crossing Bunker Parade and continuing upon the unnamed laneway. 11. At or shortly before the time that the plaintiff walked his bike onto the carriageway of Bunker Parade the first defendant suddenly and without warning pulled out from the kerb and proceeded south upon Bunker Parade and thereby brought his bus into collision with the plaintiff and/or the plaintiff's bicycle, knocking the plaintiff to the road surface and subsequently running over the plaintiff. 11A Alternatively, the plaintiff moved his bicycle from the pathway and footpath area onto the road surface at Bunker Parade after the first defendant had commenced to drive the said bus south from the bus stop, whereupon the said bus collided with the plaintiff and/or the plaintiff's bicycle, knocking him to the road surface and subsequently running over the plaintiff. 11B At all relevant times pleaded in paragraphs 8, 9, 10, 11 and 11A the plaintiff was clearly visible to the first defendant." 11In his evidentiary statement, dated 12 August 2011 (exhibit A), the plaintiff described the occurrence of the accident as follows: "19 On 1 July 2007 at about 11.40am I was riding my bicycle with William Aslett. It was a hot day. We were going to get something to eat. I was wearing jeans and navy blue jumper. 20 William was riding his bicycle in front of me. We were riding down a lane towards Bunker Parade in Bonnyrigg. Bunker Parade is two lanes; one going north and one going south at this juncture. There is a bus stop on the north-eastern side of the laneway. 21 I rode down the alleyway, stopped and put both feet on the ground, straddling my bicycle. William was on the western side of Bunker Parade. He had already ridden across Bunker Parade. 22 When I was in that stationary position there was a yellow West Bus stationary at the bus stop just to the right of me. I don't know now whether the driver was letting people on or off the bus, but it was definitely stationary, so I decided to cross in front of it. 23 I was straddling the bike and had both feet on the road. I commenced to walk forward across Bunker Parade in front of the bus, with the bike still between my legs and the bus still stationary. Suddenly I head the roaring noise of an engine. I didn't have enough time to do anything to avoid the bus and it hit me. I went under the bus. I could feel myself rolling under the bus. I was going in and out of consciousness. 24 The bus continued on and finally stopped by which time I was under the bus beside the back wheels. 25 I do not recall hearing the sound of brakes. I do not recall hearing the sound of a horn prior to the bus hitting me." 12At trial the following evidence was given by the plaintiff. When assessing the evidence of the plaintiff, some allowance needs to be made for the brain damage which he suffered as a result of the accident. "Q. And as you left, who was in front? A. William Aslett. Q. What sort of bike was he riding? A. A mountain bike. Q. And what sort of bike were you riding? A. A mountain bike. Q. Were you in a hurry? A. No, not really. Q. Now as you got near the ramp was William Aslett in front of you? A. Yes. Q. What was the distance? A. Couple of metres. Q. Couple of metres. Now as you approach the intersection with Bunker Parade and are riding towards it, on your right hand side there is a fence? A. Yes. Q. When you came out from behind the fence or just level with it, what were you able to see of Bunker Parade? A. You could probably just see the road. I could see a bus approaching. Q. What did Mr Aslett do as far as you could see? A. He just kept going, kept going forward. I come to the gutter to a stop. Q. And as you came to a stop, in the gutter, can you describe the gutter, the feature that you stopped on? A. Not really. I just remember stopping, putting my feet down, coming to complete stop before I looked at the bus and thought I could go and I went." (T.25.41-26.23) "Q. At any stage did you go off either the pathway or the ramp before you got onto the road? A. I can't remember. I don't know. Q. Did you ride on the grass, for example? A. I'm pretty sure - I don't really know. I know I come to a stop. I can't remember like if it was on the grass. I remember I was on the footpath. Q. All right. And you came to a stop. Why did you stop? A. Because there was a bus stopped, stationed. Q. When you were stopped, was the bus stopped? A. Yes. Q. What's the next thing you remember? A. I remember having my feet down, straddling my feet, going across. Q. Sorry, just say that again? A. I had my feet down, straddling my feet down, starting to go across the road, I figured the bus would see me, he would give me way, because the bus is fairly wide and you couldn't see around it, so I was focusing, trying to poke my head to have a look around, but in a couple of seconds I heard a big roar. By the time I turned, I turned my head, I seen it. Q. You are turning your head to your right? A. Yes. Q. Was that the side the bus was on? A. The right. I heard a roar. Q. You heard a roar. What was the roar from? A. It was just a big loud engine. Q. Sorry? A. Big loud engine. I turned. When I turned to the right I seen it. My first reaction was to try to get out of its way. I swerved to the left on my bike, but I couldn't do much, because he was just there. As soon as I turned my head, he was there. Q. You said you tried to get out of its way. Were you still on the bike, straddling at that point? A. Yeah, yes. .... Q. What did you do to try to get out of its way, do you remember? A. I tried to turn the bike, but it wasn't going, like moving at all, because I was straddling my feet, I tried to move out of its way and turn and I kind of fell. Q. Which way were you trying to turn? A. To the left. When I seen I went, I lent that way. Q. Away from the bus or towards the bus? A. Away from it. HIS HONOUR: Perhaps I should describe that. The witness had his head turned to the right, but was leaning his body to the left and moving his arms as though he is holding the handle bars of the bike and turning to the left away from the bus. Q. When you heard the noise - it may be difficult to tell us, but could you try - what sort of time elapsed or passed between hearing the noise and the next thing that happened? A. It was like seconds. Q. Were you able to get out of the way? A. I tried to. Q. What happened? A. I was hit. I went under. Q. Do you remember what part of the bus hit you, or? A. I think it was more to the right. Like, I'm not really sure, but I remember going under and I could just see black. ..." (T.26.45 - 28.29) "Q. Now, at the time you started to straddle your bike or walk across the road on your bike, where was William Aslett, had you seen him? A. I don't remember, but he would probably have been across - I don't remember. " (T.29.25) "Q. You recall the accident very clearly, don't you? A. Yes. Q. You recall it as clearly as if it happened yesterday? A. Yes. " (T.55.50 - 56.3) "Q. I see. You are not sure whether you told Dr Harrison that the bus hadn't stopped when William darted across? A. I'm not sure, but I know the bus was stopped as I was going. ... A. As I told him I was going to the - when I was crossing the road I knew the bus was there, so I had to look, going across, I was getting ready to look around the bus to see if any traffic was coming, because I couldn't see around the bus when I was on the road. Before I could do that, the bus took off. Q. Right. How far across the front of the bus had you got when the bus took off? A. I'm not too sure of that. I was still on the right side. I can't really recall how far I was on the road, but I remember straddling my feet, just feet on the road, straddling my feet. I heard the noise and turned my head and it was just too quick, like, to know exactly where I was on the road. ... Q. And how far do you think you were, short of getting to that point where you could see to the right of the bus? A. Not far enough, I was still working my way to go across. Q. You were in about the middle of the bus by the time you were hit or the bus took off? A. I'm pretty sure I was more to the right. Q. When you say the right, what do you mean? A. When I'm looking more to the, to the bus door, where the bus door is, like when we're going across more, not over that way (witness indicated). Over where the bus door is, more to that side. Q. You think you were on the nearside of the bus rather than in the middle of the bus, is that what you're saying? A. I could have just been getting on the road. It's hard to - I'm pretty sure I was on the road. " (T.58.7, 26-59.8) "Q. ... Now, you just told us a minute ago that you were pretty sure that you were on the road, but then you went on to say you don't know whether you were on the road? A. I know, I don't know whether I was, the whole in the road, but I'm pretty sure most of my bike was on the road. I just got on the road as the bus had taken off. It was too late, by the time I've heard the bus, I've looked and I've turned and there was nothing I could do. I didn't get the chance, I knew I had to look around the bus before I crossed onto the next bit of the road, so I was ready to do that, but I didn't get the chance to even get to do that, because the bus took off too quickly and didn't look, didn't stop." (T.59.30) "A. I don't know. All I remember is coming to a stop, seeing the bus approaching, coming to a bus stop. The bus stopped. Thinking that the bus had given way, I went across. ... A. Yes, it was approaching. Q. I see. So your evidence is, is it, that when you came down the laneway past the paling fence on your right-hand side you could see the bus approaching? A. Approaching and as I got to the gutter he was stopping and I stopped. ... Q. He was coming to the bus stop, was he? A. When I was coming down, I was on the bike. I could see the bus was just pulling out, it is not far from where it is, was pulling in, I pulled there and stopped. It was a couple of metres away from me. I started to go and the bus started taking off virtually at the same time without looking and we collided." (T.60.37 - 61.15) "A. ... More like I heard the sounds of its doors opening, yeah. I started to put my feet across, both feet on the road. I was going to walk it. By the time I got one foot off the pedal, and that's it. Swerved to the left, I went under. Q. Do you say that you did see the doors of the bus open or not? A. I said I heard, I heard the sound, you know, the shhh. Q. Did you hear the doors close? A. I don't remember that, no. Q. But your recollection is that as you heard the doors opening you started off, is that right? A. Yep. I, when the bus stopped, the doors open, it stopped. That is my first reaction is it's stopped, it has given me way to cross the road. Q. So you went, is that right? A. Yes. Q. And you started walking across in front of the bus, is that right? A. Yes. Q. Now, can you tell us whether you were walking at a normal pace or quicker than normal or slower than normal? A. Probably normal, bit slower than normal. Like, you get the bike off, to get on, like, I wasn't a risk taker, I was always careful. I was coming towards, you know, where the bus was. I got to make sure there is no traffic coming the other way. Q. You weren't dawdling? A. No. Q. You were walking a bit slower than normal, is that right? A. Yes, I wasn't dawdling." (T.61.35 - 62.18) "Q. Your evidence is that you actually saw the bus stop? A. I didn't assume it stopped, I saw it stopped. That is what give me the right to go. It was stopped, he was stationed." (T.63.23) "Q. That it appeared to you that the bus had stopped? A. No, the bus was stopped. It was station, it was stopped. It wasn't moving when I looked at it, it was completely stopped. I'm not going to go while the bus is moving, I'm not a f-wit." (T.64.47) "Q. Do we understand that you told her that as you walked the bike across the road you recall seeing the bus in your face? A. Well, no. When I heard the sound I turned to the right, I turned to the right, it was in my face. When I turned it was in my face because it was, it was there. Q. How far away? A. When I turned I swerved, I tried to swerve. Q. You tried to swerve? A. I can't recall, I can't recall. Too hard. MARSHALL: May I just ask that that movement the plaintiff made be recorded? HIS HONOUR: The same movement he made yesterday. MARSHALL: Yes. HIS HONOUR: He looks to the right and then he turns away, makes a gesture consistent with turning the handlebars of the bike away and turning to the left." (T.65.42 - 66.12) "Q. And were you actually holding the handlebars of the bike as you fell over to the left, is that right? A. Yes. Q. And when you hit the ground were you still holding the handlebars of the bike? A. I don't remember hitting the ground. I went straight under, just started rolling, seeing the light and then the blackness." (T.67.6) "Q. Let me just ask you this question, Mr Egan: Were you in fact hit by the bus before you went under it or not? A. I was hit - I was hit, then went under. Q. And on what part of your body were you hit by the bus before you went under? A. I can't recall, because I was on the side, so that I probably would have got hit by - my leg probably would have got hit first. HIS HONOUR: Q. Don't speculate, Mr Egan. Do you remember or not? A. I don't really remember. " (T.73.14) "Q. Now, going back, you recall I put to you the proposition as contained in this document "the plaintiff brought the bicycle to the stop on the south-eastern kerb of Bunker Parade"? A. On the gutter, like, stopped, yes. Q. "And at the same time the bus stopped at a bus stop a few metres to the north-east of the plaintiff's position"? A. Yes. Q. Do you accept that? A. Yes. Q. In other words, you say that as you stopped so, too, did the bus? A. I stopped, the bus was coming to a stop so I was already stopped before the bus come to stop. It is just the way you are saying it, I'm not really understanding it because I speak it different. Q. That's all right, Mr Egan. You say that you came to a stop and within a very short time to your observation the bus also came to a stop is that right? A. Pretty much at the same time, probably, yeah. I'd say it is. Q. Can we just clarify what we understand by the expression a very short time? When you came to a halt will you agree that the bus came to a halt within one or two seconds after you came to a halt? A. Yes." T.104.28 - 105.2) "Q. So now I just want to understand. The front wheel of your bike, was that past the mid point of the bus, the front of the front wheel? A. I haven't got a clue, I wasn't looking at the wheel, where the wheel was. When I get, I turned to the bus, I wasn't looking to where the wheel was. Q. You are not able to tell us one way or the other whether the front of the front wheel was past the mid point of the bus or not? A. No, I'm not. Q. That was at the point the bus immediately started to move? A. I don't know where my wheel was, I wasn't focussing. I was crossing the road, I heard the noise, I turned to my left. I was looking at the bus, I wasn't looking at my wheel. Q. So the four things that happened, namely the first, you coming to a stop. Secondly, the bus coming to a stop. Thirdly, the bus starting to move and fourthly the bus hitting you all occurred within the space of a few seconds? A. Probably, could have. I don't know exactly the rough time it was but it happened pretty quick." (T.105.25) "Q. And you were walking slowly but not dawdling? A. No, not dawdling. Just, yeah, doing the normal thing, walking the bike, my feet on the ground. ... Q. Tell us this, how is it that you knew that the bus came to a halt? A. I seen the bus stop. Then once the bus come to a stop, I got ready to go, looked straight ahead once it was stopped. I heard, I heard the doors open but I didn't look to see if anyone got out and by the time I was on the road he was moving, the bus. Q. When you started to move, that is immediately after the bus had stopped, where was William Aslett? A. I can't remember, I wasn't, I wasn't like paying, I was paying attention to myself, worried about myself. Q. Isn't it your recollection that he had already got to the other side of the road? A. He was already on the other side but I wasn't watching him, I know he was already gone past. Q. He was already over the other side when you started to move? A. I didn't see him over the other side but he would have been because he was in front of me. I was stopped at that place and he wasn't stopped, he kept going." (T.106.3 - .30) "Q. And it would be quite wrong to say, would it, that when you first saw the bus as you emerged past the fence, it was moving and it kept moving as you attempted to go across the road in front of it? A. No. Q. You would reject that all together, would you? A. Yeah, it stopped, I know it stopped. I seen with my own eyes it stopped. I stopped. I put my legs down to walk, because he was stopped, thinking it's a big window, the bus would see a person on a bike in front of him. Q. And you say that it was within a couple of seconds of your starting to walk your bike out in front of the bus that you first heard the engine of the bus ignite? A. As I started to get on the road, the roar. Q. And you immediately turned your head in the direction of the bus? A. Yes." (T.113.6 - .22) "Q. Are you saying that Aslett was travelling faster than you, or at the same speed? A. No, I said he was travelling faster than me, that's why he was in front. Q. How much faster? A. I don't know. I don't know. He was in front a couple of metres. That's all I know. Q. Is it your evidence that as you went down the laneway from the very beginning to Bunker Parade, he was progressively getting further and further in front of you, because he was travelling faster than you? A. Yeah, he was travelling faster, yes. Q. And does that mean that he was progressively getting further and further in front of you-- A. Not like you're saying. He was a couple of metres in front-- ... A. He was a couple of metres in front the whole the time. I stayed at one stage, he stayed at one speed, but he was a couple of metres in front. He went across. I seen the bus coming. I come to a stop. I stopped. And that's what I assumed he was across the road, because I seen him go across. I didn't see him stop at the end of the other side, but I know he went across, because I come to stop and he was beside me. " (T.116.6 - .34) "A. That's what I'm trying to say, he didn't keep getting further and further away. He pulled ahead a couple of metres and that's it. It wasn't like he kept pulling and pulling and pulling. Do you know what I mean? ... Q. And do we take it from what you've said, that as you reached the position shown in the photograph marked 9 for identification, which you have before you, you've got another copy of it, he was only a couple of metres ahead of you? A. Yeah. Three or four metres, something like that." (T.118. -.13) 13Mr Aslett was not able to provide much evidence as to how the accident occurred since he did not see it. He said that when he emerged from behind the fence he observed the bus to be stopped and saw a passenger getting onto the bus. Mr Aslett then rode his bicycle across the road in front of the bus. 14Mr Aslett provided a statement on 19 August 2011 (exhibit F). In that statement he said: "6. ... We rode down the alleyway towards Bunker Parade. 7. Mitchell was somewhere behind me. As I got to the fence line of the house at the corner of the alleyway in Bunker Parade I slowed down. I could see the bus stationary at the bus stop just to the right of where the alleyway emerges from between the houses. I could see that there was a Chinese man getting onto the bus. 8. I'm absolutely sure that the bus was stationary. I glanced around and I could see that Mitchell was a few metres behind me so I decided to proceed. I cycled out in front of the bus and looked around and could see a red car that was coming out of Reeves Crescent. I crossed over the road riding my bicycle and as I got to the footpath on the other side, I first heard the engine of the bus as it took off and shortly after that I heard a loud thump. I looked back and saw the bus still moving. The driver was looking at the outside rear vision mirror." 15In evidence at trial, he said: "Q. And what did you see in relation to the bus? A. I saw there was a passenger getting on. Q. And did you see where Mitchell was at that time? A. No, I didn't. ... Q. Did you get across to the pathway on the other side? A. Yes, yeah. Q. Did you hear anything? A. I just heard the bus engine and then just a noise, noises. A couple, yeah. Q. What noises did you hear? A. I can't explain them. It was like a bang and then some other noise, yeah. Q. A bang and some other noises? A. Yeah. Q. What did you then do? A. Turned around, dropped the bike and turned around. Q. And what did you see of the bus? What did you see the bus doing, if anything? A. Just slowing down to a stop." (T.79.2 - .32) "Q. How far do you say Mitchell was behind you at that point, that is when you rode under tree 21? A. I'm not sure. I'm not sure. Q. Well, have you any idea at all? A. I only looked back once. Q. When was that? Where were you when you looked back? A. I'm not sure. Q. Have a look at the aerial photograph. You see you have got the oval, that's where you started and then you go down past tree 14 and then tree 15 or house 15 and tree 16. Where were you in relation to those markings when you looked back? A. I can't remember. ... Q. Your evidence, to the best of your recollection, is that it is some point on the way down the laneway you looked back and you saw Mitchell behind you? A. Yes. Q. And just tell us again, how far behind you was he at that point when you looked back? A. Two, 3 metres, I'm not sure. Q. Two or 3 metres. But you are not too sure about it? A. Yeah, I'm not sure. Q. Do you recall observing that he was travelling at the same speed as you, slower than you or faster than you or do you have no recollection? A. No, I couldn't tell you. I don't remember." (T.86.15 -.50) "Q. In paragraph 8 of your statement of 14 September 2010 you say "I glanced around and I could see that Mitchell was a few metres behind me so I decided to proceed." Now, was that statement, that part of your statement, was that accurate? A. Yes. Q. I see. You have not told us about that this morning though, have you? A. No. Q. And-- A. I told you at one stage that I looked back. Q. But you have told us this morning that you were not able to recall when it was that you looked back? A. Yeah, I don't know. Q. But according to your statement, the second sentence of paragraph 8 that I read to you, you seem to suggest that when you made the statement you had a recollection of looking back as you passed the western edge of the fence. Is that right? A. Possibly. Q. But you don't really know whether you did or you didn't, is that right? A. I know I looked once. Q. But you don't know where it was that you looked? A. No. Q. Do I take it from that, that you don't suggest that you are now happy with that sentence, "I glanced around and I could see that Mitchell was a few metres behind me so I decided to proceed". You are no longer confident that that is a statement of your accurate recollection, is that it? A. I'm confident I did look. I'm not sure exactly when it was." (T.90.33 - 91.15) 16Mr Aslett said that as he went past the bus he "slowed right down" to make sure there were no cars coming around the bus. He denied that the bus was moving when he rode in front of it. 17I have concluded that exhibit F is unreliable to the extent to which it asserts that before he commenced crossing Bunker Parade, Mr Aslett observed the plaintiff to be "a few metres behind me". I find that Mr Aslett's recollection is that at some point between them getting on the bicycles and him commencing to cross Bunker Parade, he did observe the plaintiff a few metres behind him, but that he has no recollection as to where on that journey this took place. 18An important witness in the plaintiff's case was Ms Luchˆt . She was interviewed by the police on 8 December 2007. The circumstances in which she came to be interviewed and a record of what she said is set out in the police COPS report (exhibit AO p10) as follows: "At 1pm Saturday 8 December 2007 ... police speak with his aunt Tracy Egan ... Whilst speaking with Ms Egan she nominated another witness, Diana Luchˆt , as having seen the collision. Egan escorted police to the address where police spoke with Luchˆt . Luchˆt stated "I'd been to the plaza. I was coming back through the alleyway towards the bus stop. One kid went across. The second kid was crossing but not riding. He was sort of straddling the bike. I looked at the driver. He was looking in his rear vision mirror the whole time. The bus started, moved off and went straight over the boy. I don't remember anything else." 19Ms Luchˆt provided a statement to the plaintiff's solicitors on 1 February 2008 (exhibit B). In that statement she said: "9. I was approximately 6 metres from the western kerb of Bunker Parade. 10. I was walking slowly and looking ahead. 11. I noticed a Westbus had stopped at the "bus stop" and the bus was stationary. 12. I witnessed two children riding down the laneway towards Bunker Parade. This section of laneway runs parallel to Stroud Way. 13. The children were riding towards me. 14. The first child rode his bike out of the laneway and in front of the Westbus and crossed Bunker Parade. 15. The second child was close behind the first child but he actually stopped on the eastern side of Bunker Parade at the kerb. 16. The second child was positioned a few metres in front of the Westbus. 17. The second child was Mitchell Egan, a local boy. 18. Mitchell is a tall boy. 19. The Westbus was still stationary and Mitchell began to walk across Bunker Parade with the bicycle between his legs. 20. The bike was one of those smaller BMX type bikes. 21. Mitchell had straddled the bike between his legs and he walked the bike with the feet on the ground. 22. Mitchell was definitely not peddling the bike. I recall the events clearly. 23. Mitchell had nearly reached the centre of the bus. 24. I estimate that there was 1.5 to 2 metres space between Mitchell and the front of the Westbus. 25. I saw the driver look into the driver's side mirror and pull out from the kerb. 26. At no stage did the driver look forward and to the front of the bus before pulling out from the kerb. 27. The front of the bus knocked Mitchell down to the road. 28. I remember screaming and then I must have gone into shock. 29. The next thing I remember is reaching my front stairs to my home and vomiting. I don't know who ended up with my groceries which were left at the scene." 20She also made a statement on 28 September 2011 (exhibit C). That statement was as follows: "7. I was walking in a generally easterly direction towards Bunker Parade and I was just a few metres from the western kerb - maybe six or eight metres, when I noted the Westbus stationary at the bus stop. At the same time I saw a boy on a bicycle come straight across from the laneway. He crossed Bunker Parade and went back into the pedestrian laneway on the other side riding towards me. 8. At the same time I noticed a boy on a second bike. He's almost stopped his bike and was straddling the bicycle with both feet on the ground and walking the bike to the eastern kerb alignment of Bunker Parade. As he got to the road the bus was still stationary and he started to walk the bike out into the road still straddling the bar. I remember the bike. It was red with curly handlebars. 9. The boy was quite tall. I did not recognise him at the time. I now know though I don't remember how I found out that the boy was Mitchell Egan. I had met Mitchell before but only briefly. He is a nephew of one of my neighbours, Tracy, and he was staying with her. He does not usually reside in the Bonnyrigg area. 10. I cannot remember with any precision how far the boy was away from the front of the bus when it started moving, though I estimate he was 1.5 - 2 metres away. 11. As the boy walked his bike onto the road the Westbus took off. I looked at the driver to see what he was doing and could see that he was peering into the mirror to his right on the outside of the bus. He just kept going forward quickly and peering into his mirror. 12. I am a 100 percent confident that Mitchell didn't ride his bike onto the road. He was definitely not peddling but walking the bike as he straddled it. 13. As the bus struck Mitchell I remember screaming and then I must have gone into shock. 14. My next recollection is sitting at home on the top step of the stairs leading to my house with a pool of vomit beside me. I never retrieved the week's groceries that I had with me when I witnessed the accident. 15. Some time after the accident, I think 3 - 4 months, although I can't remember exactly, a woman who I know as Mitchell's aunt named Tracy brought police to my home. I know Tracy because she lives across the paddock from my home in Bonnyrigg. I do not know Tracy socially and I'm not sure how she became aware that I witnessed the accident. 16. A female officer asked how well I remembered the accident because it had happened some time ago. I pointed to my head and conveyed that it felt like it happened 5 minutes ago. The accident is etched on my mind. The officer took a statement from me which I read and signed. I did not hear from the police again." 21The important parts of Ms Luchˆt 's evidence were: "Q. She was heading east. Had you reached Bunker Parade yet? A. No, I was approximately six to eight metres from Bunker Parade. Q. Did you see something on the opposite side of the road? A. A bus stationary at the bus stop. Q. Just stopping you there. Did you stop or did you continue walking? A. Oh, I continued walking. Q. What is the next thing you saw? A. A boy crossing the road on his pushbike, he was riding his pushbike across the road. Then I saw a second boy. Q. Just before we get to the second boy, the boy you saw riding his pushbike across the road, did you see where he had come from? A. He had come from the continuation of the laneway I was walking on. Q. And did he pass behind the bus, in front of the bus? A. In front. Q. How far in front of the bus did he pass, are you able to tell us? A. Oh, not exactly. I'd say a metre and a half, two metres. Q. Right. At the point where he passed in front of the bus was the bus stationary or moving? A. Stationary. Q. Where did that first boy, what did he do? A. He just rode across the road and I didn't pay any attention what he was doing after that. Q. The second boy you mentioned, where did you see him when you first saw him? A. He was behind the first boy. He came to Bunker Parade, stopped his bike, he straddled the bike. He started walking the bike across the road. He was maybe a metre and a half on to the road and I heard the bus motor. I looked at the bus, the driver was looking in the side mirror to the right-hand side and then I just heard the noise like a collision. I remember screaming and I don't know what. Q. When you saw the boy, you said a metre or a metre and a half on to the roadway? A. Yes. Q. Was he moving? A. He was straddling, he had straddled the bike. He was walking across in front of the bus. Q. And what did you do after you saw this? A. I wouldn't have the faintest idea. My next recollection of any sort of reality was sitting on my top step near the front door of my house and there was vomit all over the steps and I was just sitting there. Q. Some three months later you spoke to police? A. Yes. Q. Can you tell us the circumstances how it was that you came to speak with the police? A. A woman from the area that I found out since is the young boy's auntie, she was an acquaintance, she quite often went up my street going through to the Plaza for shopping and it was a hello, how are you. So that is how I knew her. I don't know how she knew that I had seen what happened but she came to me with the police and they asked me what happened. Q. Had you spoken to anybody about this accident -- A. No. Q. Please listen, between when you saw it and when the police came to speak to you? A. No." (T.167.10-168.29) "Q. May we take it from your evidence that you did not observe the bus driving or being driven in a southerly direction along Bunker Parade and coming to a halt at the bus stop? A. No. Q. Right. Now, you don't know how long it was that the bus had been at the bus stop, is that right? A. No, no." (T.172.1) "Q. At the point when the first boy passed you, where was the second boy? A. He was near the kerb on Bunker Parade." (T.173.9) "Q. Just concentrating for the moment if you would on the second boy, you have told us when you first saw him he was on the bike riding it in an easterly direction towards Bunker Parade, is that right? A. He was coming from the east going west. Q. Did you say that you saw him at some point come to a halt? A. Yes, and he straddled his bike, put his feet on the floor. Q. He got off the bike and put his feet on the ground, is that right? A. Yes. Q. How long was it from the time that you first saw him, that is to say when he was on the bike riding it, until he came to a halt and put his feet on the ground? A. Not very long at all. Q. A matter of 10 seconds? A. Seconds. Q. Well, would you say 10, 20? A. I don't know, just a few seconds. Q. From the moment that you first saw the second boy until he stopped his bike and put his feet on the ground was the bus stationary? A. Yes. Q. Did you observe any passenger or passengers get on or off the bus? A. No. Q. You could see the driver of the bus? A. Yeah, the driver's on this side, the passengers get on on the other side. Q. And you couldn't see, as it were, past the driver? A. I wasn't looking. Q. You say the second boy, having got off his bike and put his feet on the ground, did you observe him look at the bus? A. No. Q. As far as you could recall he was looking straight ahead, is that right? A. No, I don't know, I didn't see where he was looking." (T.174.30 - 175.19) "Q. My question is: Between that time and the time that the bus hit him, had he moved further across the front of the bus? A. I don't know. I saw him, I looked straight at the bus as soon as I saw him where he was. Q. Did you see the bus actually hit him? A. No. Q. You were looking straight at him when the bus started to move, weren't you? A. As soon as I heard the bus take off I looked at the bus. I didn't-- Q. Not at him? A. No, I wasn't looking at him, I was looking at the bus. Actually, the bus driver. His face was in that mirror (indicating). Q. So you didn't see the bus hit the boy? A. No. No, I heard. Q. You heard it? And did you hear the bus hit the bike as well as the boy? A. No, I heard the initial impact, I screamed and then hours later I am sitting on my front steps." (T.177.20 - .41) 22Evidence was given by Senior Constable Tiffany Duane who was one of the investigating officers following the accident. She had no recollection of seeing Ms Luchˆt at the accident site. She was one of the police officers who spoke with Ms Luchˆt in December 2007. She had initially attended the residence of the plaintiff's aunt Tracy in the belief that he was living with her at that time. Her evidence was: "Q. When you arrived at Tracy's residence, did you have a discussion with her concerning the accident? A. Yes, I did. Q. What was she able to tell you about it? A. She told me that there was somebody else who had witnessed the accident. Q. Did she identify where that person lived? A. Yes, she did. Q. Did you then proceed in Tracy's company and in the company of the other officer to that person's place? A. Yes, we did. ... Q. But what did it appear to you to be the relationship between Tracy and Ms Luchˆt? A. They knew each other. Q. How far was Tracy's house from Ms Luchˆt's house? A. About a hundred metres." (T.182.15 - 183.6) 23In relation to the COPS entry, exhibit AO, Constable Duane said: "Q. Towards the foot of the document there is a passage that starts "Luchˆt stated"; do you see that? A. Yes, I do. Q. Is that the sum total of everything she said to you? A. Yes, it is." (T.183.31) 24The driver of the bus, Mr Mangarelli, gave evidence. He said that the bus came to a halt just before the bus stop to the north of the laneway. It did so to allow a passenger to get onto the bus. The bus was already carrying two passengers. After the passenger had sat down, he said that he checked his offside mirror to make sure that there was no other traffic. He did observe a red car, but it had come to a halt behind the bus. He said he looked to the front and commenced to move the bus away from the kerb. 25Just as he started to move, he said that Mr Aslett came out of the laneway across the front of the bus to the other side of Bunker Parade. He said that he continued to drive the bus until one of the passengers screamed "Stop stop" at which time he felt a bump under the front wheels and shortly afterwards something hit the side of the bus. He said that at no time did he see the plaintiff or the plaintiff's bicycle. He said he brought the bus to a halt but did not apply the brakes in an emergency fashion. 26The day following the accident (2 July), Mr Mangarelli provided an electronically recorded interview for the police (exhibit D). The relevant parts of that interview are: "Q. Can you just tell me what happened? A. Okay what happened. I pulled up to the bus stop there in Bunker Parade. There was a passenger waiting for the bus, I pick him. After I pick up the passenger, I was ready to leave, I put the blinker and look on the back if there was any car coming, next moment this boy with a pushbike just went across in the front and he crossed the road. So and well then I just mentioned to the passenger, I said "silly that boy, you know, he could have got killed for what he just did" because the car behind, he stopped, usually they don't stop when you put a blinker to pull out. And the next moment, I started moving slowly to pull out from the kerb and as I move about a bus length, I hear a bang on the left side of the bus and the next moment, the passenger says "stop stop". So by the time he said "stop" and the time I stopped, actually stopped I hear something under the bus a noise and I stop. I opened the door, I went and had a look. I thought it could have been, I don't know, a bin, or something on the road and I noticed there was a boy under the bus, he was screaming for help. And straight away I realised the weight of the bus was on the top wheel so I run back inside the bus and I pushed the button to lift the bus up. ... Q. And then on the other side of that, there's about 2 metres before you get to that laneway. A. Yes and that's where the boy with the pushbike, he come through in front of me before I started moving out. It was just a moment before, wasn't really you know, because he wasn't going very very fast but he couldn't stop but he didn't have time to look left or right, the boy, he just went straight through. So I presume the boy went under the bus, he was to follow him because the other boy after he come and he started screaming "get my friend, out get my friend out, help my friend", he's saying, that's what he's saying. ... Q. So that car had stopped, the boy had gone across and you started to pull out? A. I started to pull out and I went about one bus length but before the bus length that's when I heard the bang and after it was just behind a bus length where I stop so he could have been a couple of metres before that I stop when the boy scream "stop stop", you know because I didn't know what was going on. If I knew it was a boy who hit the bus I would have went for the brakes straight away but because I didn't know what was going on it took me a fraction of a second to stop. ... Q. You said, you did hear something hit the front of the bus is that right? A. No hit at the front it's on the side, I felt bang first and the next moment I felt a roll underneath. That was in the time of the person that he screamed "stop stop stop". 27In his evidence at trial, Mr Mangarelli said: "A. Yes, I started moving. I move 4, 5 metre, not even that. The next moment the boy with pushbike come in the front, he just went zoom straight across and I jump. Q. How far away was that boy from the front of the bus to your observation? A. He wouldn't be more than - reckon less than a metre. Q. Did you apply the brake when you saw the boy ride his bike straight across the front of the bus? A. No, I didn't apply the brakes, but I believe I released the accelerator. And the boy went across, as he went across I look in the mirror on the right side and in that moment I thought, you know, if the car-- ... Q. Why was it that you looked in the right wing mirror at that point? A. Because the boy went across and he took my attention. Q. Immediately after looking in the right wing mirror, where did you then look? A. My eyes was still in the front to look at the road. Q. After the boy had driven past the offside front of the bus, did you continue to drive the bus in a southerly direction? A. Yes. Q. At what speed was the bus travelling when the boy first rode his bike out in front of the bus, can you tell us? A. I would believe about 15, maybe 20, not even that. Q. Are you able to tell us your estimate of the speed at which the boy was riding the bike? A. The boy would be at least 15 K. Q. After he passed the right hand or offside front edge of the bus did you continue to drive the bus in a southerly direction? A. Yes. Q. Did you at that point observe any other vehicle, be it a motor car, a van, a lorry or a pushbike, anywhere within your vision ahead in Bunker Parade? A. No. Q. Did you observe any other person, other than the boy who had ridden his bike across in front of you -- A. No. Q. --in the vicinity? Tell us then what next occurred to your observation? A. Yes, I was travel about two bus length, about good 20 metre, next moment the passenger, he screams, "Stop, stop." Q. Before the passenger screamed "stop stop", did you hear or feel anything unusual? A. About the same time I felt a bump in the front under the wheels and at the same time, after, I felt on the side, something hit on the side of the bus. And I just - I pull up gently because there was nothing on the road. I didn't just brake all at once, and it took me a couple of metres to stop and I just bring the bus to stand still-- HIS HONOUR: Q. Have I got the sequence correctly: There is the bump as the wheel goes over something and then there is a bump on the side? A. Yes." (T.212.14 - 213.38) "Q. When you moved forward, where were you looking then? A. When I was looking forward I looking straight on the road. And next moment this pushbike come crossing in front of me and I believe reaction, I jump, I think I just remove the, the pedal from accelerator but I'm not sure on that. I usually do. But I was going very slowly." (T.218.14) "Q. You saw the bike before you started to move in a southerly direction? A. As I say, I was not sure if I was already starting or it was stationary and I don't recall either for sure hundred per cent what I said to the police." (T.222.11) "Q. You did not see, forget the first bicycle then, you did not see Mr Egan's bicycle at any time before the bus hit it or Mr Egan? A. No, because I was looking straight forward and at the same time I was looking in the right side mirror because the boy crossed, it took my attention. Q. Did you see the first boy get to the western side of the road? A. Yes. Q. But you didn't stop your bus at that point? A. No. Q. Would you agree that you were travelling about 5 kilometres an hour? A. A bit more. Q. When Mr Aslett crossed? 5, 6, 7? A. The bus, as it started moving, I would say at least 10 K. Q. And at 10 K you could stop the bus within a couple of metres, couldn't you? A. Yes. " (T.226.39-227.7) "Q. When you say in your statement to the police "I heard a bang on the left-hand side of the bus"? A. Yes. Q. What did you think that was? A. I didn't know because there was nothing there. Q. Well, you didn't look, you have just agreed? A. Well, as I said before, when I took off it was clear the road completely, so I do not expect to be nothing there so I could not say what it was that hit the bus. I only pull up - sorry. Q. At the time you felt that bump, you didn't put your foot on the brake, did you? A. No, I stop. I heard the bump after the passenger screamed "stop stop", so I do not brake straight away because there was nothing in the front and the road was clear, so I slow down just slowly normal. "Q. My question to you is: When you heard a bang on the left-hand side of the bus, at that moment you didn't put your foot on the brake, did you? A. I am not sure that." (T.227.28) "Q. After the passenger said "stop stop", what did you do as far as braking is concerned? A. I just stop. I didn't stop - how do you want to put it? Q. Suddenly? A. No, I didn't. Q. What you mean to tell-- A. I slow down and I stop. It took me a couple of metres to stop. Q. You slowed down gradually? A. I slowed down gradually, I didn't stop rashly. HIS HONOUR Q. You didn't do an emergency stop? A. No. " (T.228.31) "Q. Did you look? A. I was looking the boy and the front of the bus, so my vision on the left side it was a blank, but I was looking forward at the same time I was looking in the mirror at the boy that he went across the road. It took part of my attention. Q. So you say your eyes were following the boy across to the western side of the roadway? A. Now, when you look in the mirror you can see in the front and plus you can see on the side because-- Q. When you look at the rear wing mirror on the right-hand side you can see behind you? A. You can see behind because I already pass the boy. The boy already cross-- Q. The boy has already passed, but you could see him to the western side of the roadway out of your peripheral vision? A. So at that moment he kept my attention. Q. At that point you didn't look to your left-hand side, did you? A. No, I didn't. "(T.235.6) "Q. Is there any particular reason as to why you stopped the bus gradually rather than suddenly? A. I stop gradually because the road was clear, there was nobody there and there was no reason me to brake suddenly. If I knew the boy was there, of course I would have brake, I would have tried to avoid to go so far under the bus, whatever happened, but there was nobody there." (T.244.28) 28It was common ground that the passenger who called out "stop stop" was not the passenger who got onto the bus immediately before the accident. Mr Duong was the passenger who got onto the bus. He was available to give evidence, but neither side called him. 29A statement from Mr Duong was tendered in the plaintiff's case and became exhibit M. That statement was recorded in a police notebook on 3 July 2007. Relevantly, the statement recorded the following: "5 The bus pulled up. I got on and paid the money. I got a ticket and I walked down to get a seat. I walked down to the first seat past where the fold up seats were on the side closest to the kerb. I noticed that there was another man sitting on the bus, he was further back on the same side of the bus. 6 I hadn't even sat down when I heard a thumping noise. Then the other man yelled out "stop the bus you hit someone". 7 I didn't know what he was talking about. I start looking around and I see the bicycle on the ground beside the bus." 30Mr Duong appears to be mistaken when he suggests that the other passenger was seated on the nearside of the bus. It is clear from the CCTV footage that the other passenger, who called out, was seated towards the rear of the bus on the offside of the bus, i.e. on the same side as the driver. 31The last source of evidence as to how the accident occurred came from the experts. Two experts were qualified - Mr Johnston, on behalf of the plaintiff, and Mr Bailey, on behalf of the defendants. Mr Johnston is a Civil and Mechanical Engineer with expertise in reconstructing motor vehicle accidents. Mr Bailey is a Mechanical Engineer, who also has expertise in the reconstruction of motor vehicle accidents. Mr Johnston provided reports dated 24 November 2008 (exhibit U), 24 October 2011 (exhibit V) and 15 December 2011 (exhibit AH). Mr Bailey provided reports dated 3 May 2011 (exhibit 3), and 13 March 2012 (exhibit 10). Both experts signed joint reports dated 24 November 2011 (exhibit 6) and 30 March 2012 (exhibit AJ). At the trial both experts gave evidence concurrently on 25 November 2011 and 10 and 12 April 2012. 32An important piece of evidence, which was not available to Mr Johnston when he prepared his first report, was CCTV footage recovered from the bus by the police. That footage showed the inside of the bus looking backwards from a location in front of and above the driver. From the point of view of the observer, the camera was positioned to the right of the driver. 33There were certain uncontroversial matters which the CCTV footage revealed. At 6.84 seconds after the bus moved off, the plaintiff's bike could be seen lying to the nearside of the bus with the offside handlebar of the bike on the roadway with both wheels on or next to the kerb. The bike could still be seen at 7.02 and 7.20 seconds after the bus commenced moving. It was clear from that footage that by that time the plaintiff had become separated from the bike. The camera operated so as to provide an image every .18 second. 34Mr Bailey prepared an analysis of the bus movements by reference to the street geography and set it out on a spreadsheet. Both experts accepted that Mr Bailey's analysis was accurate. Mr Bailey took 0 seconds as the start point for the movement of the bus. 35Useful information to emerge from that process was: 2.4 seconds - front of bus reached northern side of concrete ramp - 2 metres from start point. 4.32 seconds - northern edge of concrete ramp closely aligned with lower edge of door window - 6.2 metres from start. 5 seconds - front of bus passed southern side of concrete ramp - 8.4 metres from start. 5.22 seconds - southern edge of concrete ramp closely aligned with lower edge of door window - 9.1 metres from start point. 5.76 seconds - southern edge of concrete ramp closely aligned with rear edge of door window. Driver activates right blinker - 11.4 metres from start point. 6.20 seconds passenger turned head - 13.2 metres from start. 6.84 seconds - rear cycle wheel first visible in front door window - 16 metres from start. 7.2 - 7.38 seconds - driver depressed brake pedal which caused suspension seat to visibly rise, relative to the bulkhead behind him - 17.9 metres from start. 10.2 seconds - bus stopped - 23.9 metres from start. 36By reference to the location of human tissue on the road, and by reference to the CCTV footage, the experts agreed that the front nearside wheel of the bus probably passed over the plaintiff's leg at a distance of approximately 17.9 metres from the start point and after the bus had been moving for 7.2 seconds. 37A controversial part of the CCTV footage was the conclusion drawn by Mr Bailey that the movement of Mr Aslett across Bunker Parade could be seen. 38Mr Bailey explained his theory as follows. There was a signboard located behind the bus driver. At 2.34 seconds after the bus commenced moving, a white object (possibly a hat or shirt) was reflected on the signboard. This object remained visible in the next two frames at 2.52 and 2.70 seconds. Although the limitations of the technology prevented a person on a bike being clearly depicted, Mr Bailey concluded that this moving object was Mr Aslett. 39Mr Johnston agreed that the moving object could be Mr Aslett. He pointed out that the vague nature of the reflection meant that the distance to the object and its size were uncertain. He suggested that it might indicate another cyclist further down the road. He suggested that it might be a bird. 40I am satisfied that the moving object, which is reflected on the signboard, was Mr Aslett riding his bike across Bunker Parade. I have reached that conclusion, not only on the basis of my own observations of the CCTV footage and those of Mr Bailey, but also on the following evidence of Mr Bailey: "GRIEVE: Mr Bailey, what are your reasons for coming to the conclusion that the object that we've been talking about was probably a bicycle being ridden across the path of a bus? WITNESS BAILEY: I added to the information from the CCTV footage the statement of the driver that he saw a bicycle and that he looked at it and then if I go back, I'll just change the spec resolution, full screen, at least, that at the time, it appeared to me relevant that at the time we see the object at 2.34 to 2.7 seconds, that the driver appears to be with his head in a posture that's consistent with him maintaining a gaze towards where that object would be if it was William Aslett and if I had made the assumption that he was crossing from one side of the path to the other." (T.263.41 - 264.2) 41I took into account the following additional matters. When asked, none of the witnesses in the vicinity of the accident saw any other bikes except those being ridden by the plaintiff and Mr Aslett. On the assumption that the moving object was Mr Aslett, and that he was crossing Bunker Parade east to west to the continuation of the laneway on the other side of the road, the speed of the object was consistent with the speed of the bicycle rider observed by Mr Mangarelli. 42The bike ridden by the plaintiff was examined by Mr Bailey but not by Mr Johnston. Mr Bailey found no signs of damage on the bike, except some gouge marks on the offside handlebar. Specifically, there were no areas of yellow paint transfer, which could be associated with contact with the bus and there were no signs of an impact between the bus and the frame of the bicycle. Although there were various small marks and abrasions, consistent with the bike being used over an extended period of time, Mr Bailey noted that none of those marks appeared to be "freshly made". Mr Bailey inspected the wheel rims and did not find any localised areas of impact or heavy contact. The wheels appeared reasonably true in their movement. 43The following information was provided by the joint experts' report of 24 November 2011. On the assumption that the moving object was Mr Aslett, the estimate of his speed was in the range of 12 to 20 km/h. On the same assumption, the bus moved approximately 14.5 metres between the time when Mr Aslett cleared the path of the bus and when the rear wheel of the plaintiff's bike was first seen at 6.84 seconds. The bus would have been travelling at between 4 and 5 km/h at the time when Mr Aslett cleared its path and 17 km/h at 6.84 seconds, when the rear wheel of the plaintiff's bike was first seen in the CCTV footage. On the same assumption, the bus would have moved approximately 14 metres between the time when Mr Aslett was first seen on the CCTV footage and when the plaintiff's bike was first seen. 44In relation to where the plaintiff's leg was injured, the experts said: "The plaintiff's leg was run over by the nearside front tyre of the bus at location approximately 7m south of the southern edge of the concrete ramp, however, the bus began to travel over the plaintiff sometime before his leg was run over. The front of the bus is approximately 2.6m in front of the location at which the tyre would start to engage with the plaintiff's leg therefore at the 7m location, the front of the bus would be located approximately 9.6m south of the southern edge of the concrete ramp. At which point the bus had travelled approximately 18m at an approximate time of 7.2 seconds after commencement." 45In relation to the plaintiff's direction of travel when he commenced to go under the bus, the experts said: "To have entered the roadway via the eastern kerb, the plaintiff must have travelled with a westerly component of velocity. To have reached the location where his leg was run over, the plaintiff must have travelled with a southerly component of velocity. The experts have different opinions regarding potential scenarios that could have resulted in the physical evidence seen as outlined in their respective reports. The physical evidence does not indicate the plaintiff's speed." 46In relation to the movement of the bus, the experts agreed as follows. Between the time when Mr Aslett was first visible on the CCTV footage until it stopped, the bus travelled approximately 22 metres. Between the start point and when Mr Aslett was first visible on the CCTV footage, the bus travelled approximately 2m. Between the start point and when the driver was seen to rise from his seat, the bus travelled approximately 18m. The distance between the start point and the prolongation of the eastern lane across Bunker Road was approximately 6.7m. At 2.34 seconds, when Mr Aslett was first visible on the CCTV footage, the bus would have been approximately 4.7m from the prolongation of the eastern lane. Approximately 4.14 seconds elapsed from when Mr Aslett was last visible on the CCTV footage and when the plaintiff's bike first became visible. During that time, the bus would have travelled 13.5m. When the plaintiff's bike was first visible on CCTV footage, it was approximately 9.3m south of the centre of the concrete ramp. Consideration of factual evidence 47The plaintiff submitted that his evidence should be accepted because it was corroborated in part by that of Mr Aslett and was fully corroborated by the evidence of Ms Luchˆt. The defendants submitted that the plaintiff's version of what happened was a deliberate fabrication on his part because he knew that if he told the truth, he would have no claim. The defendants submitted that the plaintiff may well have had his version of events accepted if it had not been for the CCTV evidence which he did not learn about until the receipt of Mr Bailey's first report. 48I am not prepared to find that the plaintiff deliberately set out to deceive the Court. I do find, however, that the plaintiff's evidence as to how the accident occurred is unreliable and should be rejected. It is not necessary for me to find a reason for that unreliability, although the plaintiff's brain damage and an understandable tendency, which most people have, to reconstruct events would provide a partial explanation. 49There is a conflict between the evidence of Mr Aslett and that of the plaintiff. Mr Aslett said that when he rode across Bunker Parade ahead of the plaintiff, the bus was already at the bus stop. He saw an Asian person getting on the bus. The plaintiff's evidence was that as he emerged from behind the fence line, he saw the bus arriving and that he heard the door of the bus opening. That evidence of the plaintiff cannot stand with the evidence of Mr Aslett, or the CCTV footage. Accordingly, I reject that evidence of the plaintiff. 50The plaintiff's evidence of having stopped at Bunker Parade, straddled the bike, walked onto the road and then being confronted with the bus suddenly starting up and colliding with him, is inconsistent with where the bike was first observed next to the bus and where the bus drove over his leg. The plaintiff's version of events is also inconsistent with the reflected movement on the signboard, which I have found to have been Mr Aslett. Both experts agreed that the objective evidence from the CCTV footage required not only some westerly movement by the plaintiff onto the road but some southerly movement. Such southerly movement was essential to explain how the plaintiff's leg was run over by the nearside front tyre of the bus at a location approximately 7 metres south of the southern edge of the concrete ramp. 51Mr Johnston accepted that proposition. "GRIEVE: Mr Bailey has set out three matters on page 2 of the joint report, exhibit 6, which he says are simply inconsistent with the story as told in the statement of claim. You would agree with that, Mr Johnston, would you not, that those three factors are simply inconsistent with the story as set out in paragraphs 4 to 11 of the statement of claim. WITNESS JOHNSTON: No, particularly point A. There is some evidence of potential contact between the bike and the bus, as identified by the police officer with some possible paint transfer. I can't say for certain it is but there is certainly a suggestion there is. And further, that the impact speed is so low, talking about walking speeds, that I don't necessarily anticipate damage to either the bike or the bus, depending on exactly what impact configuration occurred, particularly if the body took a substantial brunt of what is a very low speed impact between the two. Point B I probably agree with, it's factually correct, and we have both concluded that pure throw distance from the path is not sufficient to take the bike as far south of the bike and the boy, in particular as far south as we know he is subsequently run over, and that was his Honour's previous question. We both agree there was some movement, probably voluntary movement, in either scenario by the boy. HIS HONOUR: To the south. WITNESS JOHNSTON: To the south, and C really follows on from that in any event. I guess I agree with B and C but not A necessarily." (T.505.25 - .48) 52The three factors to which Mr Johnston was referring in his evidence were: "(a) Examination of the site, bus and bike by police and clear photos of same fail to identify any evidence of contact between the bike and bus. Physical evidence would be anticipated if an impact had occurred before the plaintiff was on the roadway. (b) The plaintiff's bike is first seen lying with its nearside (left side) facing upwards, and located on the eastern kerb to the side of the bus. This is not a compatible position or orientation following an impact that occurred per the description in the statement of claim. (c) The location where the plaintiff's leg was run over is too far south to be consistent with an impact per the statement of claim." 53Mr Johnston made the same concession later in his evidence: "GRIEVE: It goes on to say "there's a Westbus standing stationary at the bus stop in Bunker Parade. With the bus still stationary, our client proceeded to walk the bicycle out in front of the bus and across the road". JOHNSTON: Yes. GRIEVE: We know that in the light of the video, if the reflection shown in it as the bus was moving forward was that of Aslett, we know that the bus could not have been stationary when Mr Egan proceeded to walk the bicycle in front of it. Is that right? JOHNSTON: I think that's probably correct. GRIEVE: In that first report, shortly stated, you reached the conclusion that it was feasible that the accident did indeed occur in a manner described in the letter of instructions. Is that right? JOHNSTON: Kind of, yes. GRIEVE: And knowing as you now do that the letter was inaccurate in at least one respect, namely that the bus was stationary when the plaintiff proceeded to walk his bicycle onto the road, am I right in understanding that you no longer hold that opinion? JOHNSTON: Yes." (T.642.16 - .40) 54Both in chief and under cross-examination, the plaintiff was definite that he did not turn away from the bus and move in a southerly direction. On the contrary, his evidence was that the bus came upon him so suddenly that he barely had time to move. He gave a demonstration on two occasions of what he tried to do. The demonstration consisted of turning the handlebars to the left, but not being able to move the bike in time to avoid the collision. That version of events simply cannot be reconciled with the limited objective evidence available, in particular the location of the bike when first seen in the CCTV footage and the place where the plaintiff's leg was run over. It is also inconsistent with the lack of damage to the bike. On the plaintiff's version of events, there would have to have been some deformation of the bike frame or wheels as the bus ran over it. The plaintiff's evidence on those issues is to be found at T.27.12 - 28.15 and T.65.41 - 66.12 and T.67.6. That evidence is extracted at [12] hereof. 55I have concluded that the plaintiff's evidence as to how the accident occurred cannot be accepted as reliable or accurate. Not only do I reject his evidence as to how the accident occurred, but I also reject his evidence as to the surrounding circumstances, i.e. that he was only 3 - 4 metres behind Mr Aslett when Mr Aslett commenced to cross Bunker Parade, that he stopped when he reached Bunker Parade and that as he moved onto Bunker Parade, he straddled the bike so that he was "walking" it across the road. I have rejected that evidence because it is not possible to know what evidence of the plaintiff as to how the accident occurred can be accepted as reliable. 56If, as I have concluded, the evidence of the plaintiff as to how the accident occurred has to be rejected as inconsistent with the only objective evidence available, the evidence of Ms Luchˆt as to how the accident occurred also has to be rejected. Her evidence fully supports the version of events given by the plaintiff and is for the same reasons, inconsistent with the only objective evidence which we have concerning the accident. 57Apart from that fundamental difficulty, there are other features of the evidence of Ms Luchˆt which have led me to reject her evidence as unreliable. In that regard, her demeanour when giving evidence was not impressive. She was quite uneasy and was needlessly defensive in some of her responses. Transcript 194.5 - .30 provides a good example of this. 58In her statement to the police on 8 December 2007 and in the statement of 1 February 2008 (exhibit B) Ms Luchˆt said that she saw the impact between the bus and the plaintiff. In the police statement she said "The bus started moved off and went straight over the boy". In exhibit B she said "The front of the bus knocked Mitchell down to the road". In the statement of 28 September 2011 she said: "As the bus struck Mitchell I remember screaming and then I must have gone into shock". 59In her oral evidence, however, she denied actually seeing any impact between the bus and the plaintiff. Her evidence at trial on that issue was: "I looked at the bus, the driver was looking in the side mirror to the right hand side and then I just heard the noise like a collision." (T.167.45) "Q. Did you see the bus actually hit him? A. No. Q. You were looking straight at him when the bus started to move weren't you? A. As soon as I heard the bus take off I looked at the bus. I didn't - Q. Not at him? A. No I wasn't looking at him I was looking at the bus, actually the bus driver. His face was in that mirror (indicating). Q. So you didn't see the bus hit the boy? A. No, no I heard. Q. You heard it? And did you hear the bus hit the bike as well as the boy? A. No. I heard the initial impact I screamed and then hours later I am sitting on my front step." (T.177.25 - .41) 60For the reasons already indicated in relation to the plaintiff's evidence, the description of how the accident occurred given by Ms Luchˆt cannot stand with the objective evidence, including the lack of damage to the bike. It is also not without significance that by saying that she did not see the accident in her oral evidence, Ms Luchˆt avoided cross-examination as to exactly how the bus impacted with the plaintiff and the bike. 61There was another internal inconsistency in her evidence. Ms Luchˆt said that she did not speak to anyone at the scene of the accident. She was definite that she did not tell anyone that she had witnessed the accident. Despite that denial, when the police interviewed the plaintiff's aunt, Tracy Egan, she told them that Ms Luchˆt had witnessed the accident and took the police officers to the home of Ms Luchˆt where they obtained the statement set out at [18] hereof. It was not explained how Tracy Egan learned that Ms Luchˆt had witnessed the accident. Tracy Egan did not give evidence and her failure to do so was not explained. 62The only way Tracy Egan could have known that Ms Luchˆt witnessed the accident would be if she was told by Ms Luchˆt or if Ms Luchˆt had told someone else who then passed that information onto Ms Egan. Clearly Ms Luchˆt's evidence that she had not told anyone that she witnessed the accident is incorrect and cannot be accepted. 63I infer that because Tracy Egan was prepared to take the police directly to the home of Ms Luchˆt that not only did Ms Egan know that Ms Luchˆt was saying that she had witnessed the accident, but she was aware that what Ms Luchˆt would say was likely to help the plaintiff. Such knowledge would explain why Ms Tracy Egan accompanied the police to the home of Ms Luchˆt, rather than simply referring them to that address. If that inference is correct, it indicates a further inconsistency in the evidence of Ms Luchˆt. 64Ms Luchˆt had a motive for assisting the plaintiff in his claim against the defendants. Ms Luchˆt has brought a claim for nervous shock against the defendants based on her observation of the accident. It is true, however, that at the time when she made her statement to the police, those proceedings had not been commenced. 65The plaintiff submitted that the evidence of Ms Luchˆt should be accepted because it referred to the driver looking into his side mirror at the time when the bus struck the plaintiff. The plaintiff submitted that this was consistent with the CCTV footage. I regard that fact as simply fortuitous. It was an essential part of the plaintiff's case as pleaded in the statement of claim, that the driver was not keeping a proper lookout. It was therefore necessary to explain how it was that the driver did not see the plaintiff, who on his version of events, was standing directly in front of the bus. That fact does not overcome the problems with the evidence of Ms Luchˆt. 66I do not accept the evidence of Ms Luchˆt as to how the accident occurred, nor as to the surrounding circumstances. 67The rejection of the plaintiff's evidence and that of Ms Luchˆt severely limits the factual findings which can be made. The experts were agreed that the front of the bus passed over the plaintiff in such a way that serious injury did not occur until the nearside front tyre went over his right leg. The bus clearly did not drive over the bike, or any part thereof. The experts were divided as to whether the front of the bus actually came in contact with the bike. Mr Johnston was of the opinion that it could have been a low speed impact between the front of the bus and the bike causing the plaintiff to fall in front of the bus and causing the bike to end up against the kerb with its wheels next to the kerb and with the offside handlebar resting on the road. Mr Bailey rejected such contact. His preferred theory was that as the plaintiff emerged from the lane, the bus was in front of him and he turned to the south in order to avoid it. In doing so, he fell off the bike in front of the bus, which would account for the position of the bike and the fact that it was undamaged. Mr Bailey was prepared to accept some contact between the bike and the nearside of the bus. (T.510.11) 68It is not possible to resolve the question of whether or not the bike came in contact with the front of the bus. Cogent reasons were put forward by both Mr Bailey and Mr Johnston in support of their positions. I am, however, firmly of the opinion that the red paint smudge on the front nearside corner of the bus is unlikely to have been the product of contact between the bus and the bike. Mr Bailey closely examined the bike, precisely for the purpose of determining whether any such contact had taken place and could not find evidence of it. He could not find any evidence of any yellow paint from the bus on any part of the bike. It is of significance that this part of the bus had suffered damage from other causes, clearly unrelated to the accident, which might well account for a smudge of red paint. 69The experts did agree on the following proposition: "HIS HONOUR: Can I ask this? I'm mindful of the time and I want to see the last animation. You don't agree on the mechanism but both of you agree, do you not, that the plaintiff's bicycle and the plaintiff therefore, definitely have a southward movement, otherwise there is no explaining the actual point where the leg was clearly injured on the plan. WITNESS JOHNSTON: Yes. I cannot speak for both but I understand that to be the case. WITNESS BAILEY: Yes, it is. HIS HONOUR: And it is a reasonably significant southward movement. WITNESS BAILEY: Yes, it is. WITNESS JOHNSTON: Time, distance or speed? HIS HONOUR: Distance. WITNESS JOHNSTON: We are only talking about eight metres altogether but yeah, it has to be a deliberate turn away from the bus in terms of avoiding it, yes." (T.500.46 - 501.17) 70The state of the evidence was such that Mr Johnston was not able to formulate a theory as to exactly how the plaintiff's accident occurred. He accepted that Mr Bailey's theory was consistent with the known evidence, but said that there were other scenarios which were also consistent with that evidence. On a number of occasions, Mr Johnston stressed the paucity of the available evidence. "WITNESS JOHNSTON: I - there is no physical evidence of exactly what occurred. We only know where things ended up. My belief is he, after being redirected, couldn't stay on the bike and fell off, fell into the roadway and the bike fell to the kerb." (T.512.32) "HIS HONOUR: ... Is it one of your scenarios, Mr Johnston, that that initial impact was sufficient to cause the separation between the plaintiff and the bike? WITNESS JOHNSTON: It depends how far south that impact occurs. If he was impacted as he effectively emerged from the centre of the pathway, no. He - there has to be a component of southerly movement so the further south he voluntarily gets, I guess the less further south he needs to involuntarily get before the separation occurs, that we know occurred." (T.517.39) "MARSHALL: So it is an unknown factor for how long he would have been visible to the driver of the bus? WITNESS BAILEY: That is correct. MARSHALL: And likewise with respect to Mr Egan, the speed at which he traversed that space between the fence line and the ramp is equally unknown isn't it? WITNESS BAILEY: That is correct." (T.620.31) "WITNESS JOHNSTON: Correct. We have a gap from the pathway to the point of impact which cannot be filled. We have both hypothesised how to fill that gap. Neither of us can say how we fill that gap. Mr Bailey prefers the fact there is no evidence the boy took himself there, I say the absence of evidence is consistent with a low speed impact and that is how he got there. But neither of us can point to a piece of evidence that can convince the other clearly, to fill that gap, and that gap is going to be there and that is where you are going to have to decide how to fill that gap." ... "WITNESS BAILEY: I agree largely with that but point to two bits of evidence which is, which are the bike being seen at 6.84 seconds, 8 ½ metres down the road and the location where Egan is run over. The, the nature of that and the movement of the bike and the position of the bike, in other words lying on its right side and travelling south are strongly associated with the loss of control occurring down that end, rather than up the other end." (T.622.6) "WITNESS JOHNSTON: Yes. I mean when the bike was seen and the leg's run over. We know those points and the path, that is the gap. From those points on we know. But there is that gap between the vision of the leg and the ramp." (T.622.44) "WITNESS JOHNSTON: I agree that would be the case but it would also be accelerated along the roadway. Did it happen in this case? I have no idea. We can't fill the gap. We are hypothesising possibilities to fill the gap. Is it a possibility? Is it a probability? I can't even tell you that, probably not. We just don't know. We are trying to fill the gap and neither of us can fill the gap." (T.640.42) 71I have said nothing so far about Mr Mangarelli. There were two inconsistencies in the evidence which he gave at trial and what he told the police on the day following the accident. In his police statement he said that the bus had not started to move when he saw Mr Aslett ride across Bunker Parade in front of the bus. In his evidence he said that the bus was moving at that time. He explained that discrepancy by saying that having watched the CCTV footage, he now believed the bus had started to move at the time when Mr Aslett passed in front of it. For the reasons I have already set out, I accept that the bus was in motion at the time, although as the spreadsheet prepared by Mr Bailey made clear, the bus had not moved very far nor was it moving quickly. 72The other discrepancy is that in his police statement, Mr Mangarelli said that as he moved about a bus length: "I hear a bang on the left side of the bus and the next moment the passenger says: "Stop stop". So by the time he said "stop" and the time I stopped, I actually stopped I hear something under the bus a noise and I stop". 73In his evidence at trial the sequence of events was different. Mr Mangarelli said that the passenger screamed, "stop stop" and at about the same time he felt a bump in front under the wheels and at the same time he felt something hit the side of the bus. 74I have concluded that the statement made on the day following the accident is more likely to be accurate in setting out the sequence of events, i.e. a bang on the left side of the bus followed by a passenger shouting "stop stop" and then feeling something under the bus. That sequence of events also fits more easily with the possible scenario of the plaintiff or the bike coming in contact with the side of the bus and then the bus passing over the plaintiff's leg. 75That sequence of events is also more consistent with the evidence of Mr Duong in exhibit M where he referred to hearing a thumping noise then one of the passengers shouting "stop the bus you hit someone". 76In relation to the movement of Mr Aslett in front of the bus, I have concluded that Mr Mangarelli's observation was reasonably accurate. If Mr Aslett did slow down, as he says he did, as he approached Bunker Parade, it was only a small reduction in speed. There is a ring of truth to Mr Mangarelli's statement to the police about the sudden appearance of Mr Aslett from the laneway, which is not consistent with Mr Aslett slowing down significantly as he approached Bunker Parade. Mr Mangarelli's estimate of 15 km/h as the speed at which Mr Aslett was travelling is consistent with the estimate of the experts made from the CCTV footage of between 12 and 20 km/h, i.e. an average of 16 km/h. 77It seems to me that the following facts can be said to have been established.