Facts
3There are only two substantial aspects of controversy in the primary facts. Those controversies relate to the speed at which the plaintiff was travelling at or just prior to the accident and the manner that the accident occurred, being the precise mechanism by which the plaintiff was injured and how the motorbike first collided with the median strip or fence.
4The plaintiff had no memory of the accident. The lack of memory is neither surprising nor controversial. The significant extent of the injuries has resulted in the events being blocked from the plaintiff's memory.
5As is common knowledge, Sydney has a public display of fireworks to celebrate the New Year. The evidence discloses that the plaintiff, together with his friend, Mr Faulkner, travelled to the Epping Road overpass in order to watch the fireworks. At the conclusion of the fireworks, namely just after midnight, Mr Faulkner and the plaintiff walked back to their motorbikes, which were facing the city with the ignition off. They had a very brief conversation in which they decided to go to a bar in the city and travelled, each on a separate motorbike, towards the city.
6It is appropriate to set out some uncontroversial facts. The plaintiff was at or immediately before impact riding a Yamaha R6 motorcycle, which has a four-cylinder engine with a capacity of 600 cc.
7The weather was fine. The road was dry. The road also is a major thoroughfare. It was night, but no issue in the proceedings relates to the level of lighting, which is in evidence. Epping Road runs in an east-west direction approaching the point of impact. The thoroughfare continues in a general east-west direction through the intersection whereupon it becomes Longueville Road. The remainder of Longueville Road runs in a generally southerly direction at the relevant intersection. Parklands Avenue is the road at that intersection that runs in a northerly direction.
8Epping Road, at the intersection, is four lanes wide on the northern side of the road (the side being utilised by the plaintiff), one of which is a right-hand turn lane. On the eastern side of the intersection (again on the northern side of the road), Longueville Road has one bus lane (with access to a bus lay-by) and two lanes for ordinary traffic. A plan of the intersection is marked as both Exhibit E and Exhibit 7, each marked in the proceedings by different witnesses. I include Exhibit 7 (or a copy thereof) hereunder.
9Care must be taken in dealing with the above plan, other than for a general impression. Exhibits E and 7 were marked by different witnesses and were themselves a copy of an original plan that is not in evidence. The scales are, therefore, not accurate for measurement purposes, or at all.
10The east-west dimensions of the relevant intersection are approximately 31.5 m across, measured from the northern lane marking of the right-hand turn lane adjacent to the end of the western median strip to the western tip of the median strip on Longueville Road.
11Further comment needs to be made about the intersection. Traffic travelling west on Longueville Road have a right-hand turn lane in order to turn north into Parklands Avenue. There are bus lanes on both sides of the road on each side of the intersection (not only as described in [8] above). That part of Longueville Road that runs north-south at or near the intersection has one lane for travelling north across the intersection, two lanes for turning right (towards the east) and one for travelling left.
12Another matter of significance is the incline in Epping Road approaching the Longueville Road intersection. The plaintiff travelled up a steep incline towards the intersection on his journey towards the city. Because of the grade of the incline, a person crouched on a motorcycle (as was the plaintiff) would not have seen the eastern median strip until at, or immediately before, the intersection. Given the time of night, the lighting and colour of the fence above the median strip, together with the aforementioned incline, such a rider would also not have seen the fence until at or just before the intersection.
13Given the distance travelled across the intersection, the time taken to travel from the east end of Epping Road to the median strip would be approximately 1.92 seconds, if the rider were travelling at 60 km/h; 1.28 seconds, if the rider were travelling at 90 km/h; and 0.96 seconds, if the rider were travelling at 120 km/h.
14On the journey to the city, Mr Faulkner rode some distance ahead of the plaintiff. Mr Faulkner testifies that he was travelling no more than 60 km/h (or perhaps speeding up a little to 70 km/h, where legally permissible) during the journey. Mr Faulkner was travelling at a speed that was equal to or greater than the plaintiff. If, as was stated in evidence, Mr Faulkner were travelling at no greater speed than 60 or 70 km/h, then, necessarily, the plaintiff would also have been travelling at no greater speed than 60 or 70 km/h.
15Tendered in evidence is a video recording, taken from a camera mounted on a public bus. The video shows Mr Faulkner and the plaintiff overtaking the bus and travelling into the distance ahead of the bus. The speed of the bus is not disclosed on the video and there is no evidence accurately testifying to its speed. As a consequence, an accurate estimate of the speed of the motorbikes at the time they overtake the bus would be, at least, difficult, if the only basis were the observation in the video. The defendant proposes other bases.
16One of the other bases is an opinion expressed, in evidence, by an expert called on behalf of the defendant, as to the speed of the motorbikes, calculated by reference to an observation of a change in traffic lights, said to have occurred some distance away and observed on the said video. The arithmetic calculation of the speed is within the expertise of the witness. The observation on the video is not obviously a matter within that expertise. The observation is a finding that must be independently derived by the Court from the video itself.
17I will deal with the conclusions and analysis of the foregoing later in these reasons. As earlier stated, the accident occurred at or in the vicinity of the intersection of Epping Road and Longueville Road on or just after 12:17 am. The plaintiff (and his friend Mr Faulkner) watched the fireworks at the overpass at Lane Cove Road and Longueville Road. The fireworks concluded at 12:12 am on 1 January 2009.
18It is approximately 5.3 km (or slightly more) between the lookout and the location at which the accident occurred. On one case, possibly the best case for the plaintiff arising from the foregoing, the distance of 5.3 km was travelled in 5 min, meaning that the plaintiff's speed averaged 63.6 km/h.
19The difficulty with the foregoing simple arithmetic analysis is that it pays no regard to two significant events. First, after the fireworks, there was a short conversation between Mr Faulkner and the plaintiff, during which they agreed to travel to the city. Second, during the trip between the overpass and the scene of the accident, Mr Faulkner and the plaintiff stopped at one set of traffic lights for an undisclosed period.
20The defendant submits a calculation based upon each of the conversation and the delay at the aforementioned traffic lights taking 30 seconds. In those circumstances, the distance of 5.3 km took 4 min, resulting in an average speed of 79.5 km/h.
21As earlier stated, the defendant also submits a calculation based upon an observation of lights made by one of its experts from the video recording obtained from the bus. The difficulties with the observation by the witness of the change in the colour of the traffic lights (from green to red) in the distance, as recorded on the bus camera, is: first, the difficulty with the observation of such a small light at distance; secondly, the bus itself is moving toward the light; thirdly, as a consequence of the immediately preceding factor, one cannot be satisfied that the red light observed by the witness had not been shining all of the time and became noticeable as the bus travelled closer to the intersection; and, fourthly, as will be clear later in this judgment, the relevant intersection has a right-hand turn lane governed by an arrow light. If the light were green for traffic moving east through the intersection, there may still be a red arrow (for most of that period) for traffic turning right in order to travel in a southerly direction.
22A further observation was made by the same witness which, it was said, was an observation of car lights moving in a northerly direction (or from the road at the left of the intersection either across the intersection or turning right to travel, after the turn, in an easterly direction). There are equally difficult problems with accepting this observation.
23I reiterate that the observation on the recording is not a matter within the expertise of the witness (or any other witness called). It is a matter for the Court.
24There is what seems to be a front car headlight (white) moving across the intersection as pointed out by the witness. Given the findings I make as to the mechanism of the accident, it is more probable that the white light observed was the motorbike the plaintiff was riding. Ultimately, it makes little difference to the estimate of speed.
25Estimates were made of the minimum speed travelled between the Centennial Road and Longueville Road intersections. Those calculations are a minimum average of 72 km/h.
26The experts have each calculated a speed for the motorbike. Each based the estimate on the slide of the motorbike along the road after the accident. Their calculations differ markedly.
27The average speed of the bus from which the video recording was taken can be calculated with some precision between the Centennial Road intersection and the Longueville Road intersection. This calculation is based on the distance between the two intersections, measured independently, and the time taken to travel the distance, taken from the video recording itself. The result is an average, with all the difficulties associated with averages, for only part of the journey. It cannot be assumed from the foregoing calculation that the speed of the bus at any particular point was the average. The average speed of the bus was 57km/h.
28Next, the RTA urged the Court to consider estimates of speed by some witnesses (and not others). While submitting that all estimates of speed by onlookers are unreliable, the plaintiff urged consideration of different witness estimates.
29As earlier stated, Mr Faulkner had a clear recollection of travelling at or below the speed limit. As a consequence, if that recollection were accepted, the plaintiff was travelling at or below the speed limit. The "expert" calculations have been discussed.
30The parties adduced eyewitness evidence that attempts to estimate the speed being travelled by the plaintiff across the intersection. Janelle and Craig Boyle were in a motor vehicle stopped at the southern traffic lights at the intersection. Each saw the motorbikes travel across the intersection. The motor vehicle in which they were placed was behind another car in the middle traffic lane that allows continuation north into Parklands Avenue.
31When the first motorbike, being Mr Faulkner's motorbike, travelled through the intersection, Craig Boyle remarked to his wife: "Geez, he's going fast". He estimated the speed of the motorbike at 100 km/h. He estimated that the plaintiff was travelling "at a similar speed". The effect of the incline, to which reference has been made, is that the motorbikes could not have been observed from that position until the motorbikes were very close to or at the intersection. For some part of the intersection, the observations made by each of Craig and Janelle Boyle was through the car in front of them. As earlier stated, the observation would have been for less than two seconds. If their estimate of 100 km/h were correct, the first motorbike would have travelled across the intersection in less than 1.2 seconds. In other words, the estimate of speed is only as reliable as the witnesses' ability to differentiate between the lapse of 1 second, 1.3 seconds, or 1.9 seconds.
32The other aspect of this that qualifies the estimate is that Mrs Boyle testified that she saw the second motorbike go through the intersection, while the light was red for the Boyles' car. The light turned green "after [the motorbike] passed through the intersection". The Boyles moved forward behind the car in front of them and very quickly thereafter there was "a loud metallic noise", being the motorbike hitting the fence.
33The motorbike first hit the fence 29 m from the western nose of the eastern median strip (i.e. 29 m from the eastern end of the intersection). At 100 km/h, 29 m would be travelled in 1.044 seconds; insufficient time for the lights to change and the drivers of the only two cars to commence moving. Even the car in front of the Boyles' car could not have commenced moving in that timeframe. Yet it was after their car moved forward from the stationary position that Mrs Boyle says the impact with the fence occurred.
34Evidence of the observations of other witnesses was adduced. Ms Price was at a bus stop in Longueville Road on its southern side, across the road from the point of impact on the fence (although not directly). She turned her head from right to left and first saw the plaintiff on the motorbike at the point marked by her on Exhibit D (Transcript, 102).
35Ms Price's recollection was that the motorcycle was lifting into the air when she first saw it (Transcript, 104). She did not see or hear the motorbike hit anything. Her impression was that the plaintiff was not speeding, but conceded that she did not really know (Transcript, 105).
36There is little other direct evidence. To state the obvious, these are civil proceedings, in which the burden of proving negligence of the defendant rests on the plaintiff. The burden of proving contributory negligence rests on the defendant. The onus is the balance of probability, not the criminal onus.
37I give little weight to estimates of speed by lay witnesses who were stationary at the time the speed of the motorbikes was observed. First, lay witnesses would have no or little capacity to assess the speed of a moving vehicle, unless they were able to assess the time taken to traverse a known distance.
38Secondly, lay witnesses usually assess speed by factors, often sub-consciously, with which they have no experience: the sound of the motorbike; the riding position of the rider; and similar extraneous factors. This was a sports bike. It sounded loud; it was intended to sound that way.
39The shape of the motorbike (see Exhibit 12) also required the rider to sit high on the bike, with knees significantly bent. The heels of the feet were higher than the toes. The handlebars were almost at the same level as the seat. The shape of the motorbike required a rider, even a relatively tall one like the plaintiff, to sit leaning forward, as if crouched. Each of the foregoing factors (including noise) would give an impression to an inexpert observer that the rider was travelling faster than might otherwise be thought.
40Apart from the foregoing, I found the lay witnesses unconvincing and unreliable on the issue of speed. The experts are in a slightly different category.
41Mr Schnerring, the relevant expert qualified by the plaintiff, considered the speed to be between 55 km/h and 88 km/h. Mr McDonald, the relevant expert qualified by the defendant, estimated the speed at between 89 km/h and 115 km/h. Mr Beck, an expert in biomechanics, discounts the possibility of the higher speeds estimated by Mr McDonald, because of the limited damage to the plaintiff's right leg, which, in turn, depends upon the ultimately-decided mechanics of the accident and may not withstand scrutiny.
42As earlier stated, Mr McDonald's estimate of speed is calculated from the distance of the first blood from the median strip fence and the distance the ultimate resting location of the motorbike was from that blood (see paragraphs 5.24 to 5.32 of the Report of 25 October 2012). The same exercise by Mr Schnerring result in an estimate of a range of 55 km/h to 88 km/h, as previously stated (see page 23 of the Report of 18 December 2009).
43Mr Beck's discount to the likelihood of the range estimated by Mr McDonald rests upon the absence of sufficiently significant injuries to the plaintiff's right leg. It seems that Mr Beck assumes that the motorbike crashed into the fence first (a view consistent with that suggested by Mr McDonald) and, if so, injury would have been sustained to the right leg that was more severe than that suffered. On the other hand, if the motorbike were to have crashed into the fence at a height (and an angle) the motorbike would have swung out at the back (which movement is consistent with the opinion of each other expert) thereby avoiding significant contact between the right leg and the fence.
44I turn then to the estimate of speed. I assess that the bus was travelling at approximately 60 km/h and assess that the motorbikes passed the bus travelling at or about 80 km/h. Further I conclude that such speed was the probable speed of the motorbikes at the intersection. Such a speed would have the plaintiff across the intersection in approximately 1.5 seconds, and travel the subsequent 29 m to the point of impact with the fence (assuming constant speed) in about 1.3 seconds. The latter period is probably sufficient (although only just) for the traffic lights to have changed and the Boyles' car to have moved off. Realistically, for the latter to have occurred, the period should be no less than 1.5 seconds (assuming, contrary to the evidence, that the plaintiff's motorbike travelled through the intersection when the traffic lights were amber, but not red). The foregoing calculation based upon the motorbike crossing the intersection in no less than 1.5 seconds would result in a speed of 70 km/h.
45Mr and Mrs Boyles' evidence is reliable as to the impact occurring after they commenced moving (and the lights had changed). Their evidence or opinion as to the speed of the motorbike is, for reasons that have been given and are otherwise obvious, not reliable. The estimate of speed of 80 km/h is also generally consistent with the other evidence.
46The alternative is that there is no reliable estimate of speed, except that of Mr Faulkner. I do not accept Mr Faulkner's evidence of speed. And I do not accept any other, even on the balance of probability. The result of that alternative would be that to the extent that speed was a matter to be proved by the plaintiff, it would not have been. On the other hand, to the extent that excessive speed is to be proved by the defendant, the defendant has failed to do so.
47Rather, I stand by my estimate of approximately 80 km/h as the most likely scenario, and that estimate (plus or minus 5 km/h) is more probable than not. It is an estimate that, generally, reconciles the other evidence available.
48I turned then to the mechanism of the accident, which in some respects (see, for example, the analysis of Mr Beck's evidence above), I have also taken into account in the calculation of speed.
49There are some aspects of the accident that are agreed between the experts (and parties) and another that is controversial. The controversial matter is whether the motorbike hit the median strip, at or near the nose, before the impact with the fence.
50The motorbike, it is agreed, impacted the fence 29 m from the nose of the median strip. The impact with the fence was not, at that point, at the level of the median strip, but 150 mm vertically above the concrete or 250 mm above the road level. There is a mark or "gouge", which, according to Mr McDonald, is "leading away from where the motorcycle has struck the fence" (Transcript, 223, line 18). Mr Schnerring describes that mark as having been made "after impact" (Transcript, 223, line 22). Mr Schnerring's comment is consistent with Mr McDonald's evidence that the mark is "leading away" from the point of impact with the fence.
51Mr McDonald and Mr Schnerring agree that the front wheel of the plaintiff's motorbike wedged in the fence, forcing the motorcycle rear to rotate clockwise. Each of the aforementioned experts also agree that the damage to the motorbike evidences two distinct forces operating on the motorbike: one vertical and one lateral. Each force is at 90° to the other.
52Mr Schnerring expresses the opinion that the fact that there are two forces in that angular relationship indicates two separate impacts to the front wheel. Further, if, as is the opinion of Mr McDonald, the front wheel were to have impacted the base of the stanchion supporting the fence, there would have been substantial damage to the front fork and disc rotor of the motorbike. There was no such damage. As a consequence, Mr Schnerring opines two separate impacts: one at the nose of the median strip; the other at the fence.
53Mr McDonald gives no adequate or acceptable answer to this theory. The damage (other than that agreed to be caused by the fence) was caused by an impact upwards on the tyre and had a consequence of two gouge marks. This occurrence remains unexplained by Mr McDonald's theory, other than the highly improbable proposition that the motorbike hit the median strip almost at a right angle thereby punching out a section of the rim and simultaneously (or so quickly thereafter as to be imperceptible) wedging in the fence while the motorbike was leaning sufficiently to avoid damage to the right side of the motorbike (the disc rotor and the rider's right leg).
54For this to have occurred, the motorbike would have to have been almost at right angles to the fence, travelling towards the fence at speed. The evidence of the movement of the motorbike is not consistent with such a theory.
55On the other hand, the theory proposed by Mr Schnerring is consistent with the observations of the motorbike in motion, and explains the two distinct kinds of damage in a rational and logical way. Against the theory, the RTA submits that the theory is inconsistent with the evidence of Mr Boyle (and to a lesser degree Mrs Boyle) and the absence of physical damage to the median nose or skid marks on the road (and complementary damage to the tyres).
56From their vantage point, neither Mr nor Mrs Boyle could have seen the northern edge of the nose of the median strip. It is unlikely that, without some effort, from the second car in which they were seated either could see the median strip at all. Neither Mr nor Mrs Boyle saw the motorbike hit the fence. Mr Boyle's knowledge of the accident occurred because he heard the impact of the motorbike with the fence (Transcript, 176).
57Mr Boyle's "knowledge" that there was no impact with the median strip relies on the delay between the motorbike crossing the intersection and the noise of the impact with the fence (Transcript, 176, lines 5-21).
58Notwithstanding that these two motorbikes were sports bikes, intended to sound noisy, and, in the case of the motorbike the plaintiff was riding, with a muffler modification to make it even noisier, neither Mr nor Mrs Boyle heard the motorbikes before they entered the intersection. The Boyles' car windows were closed. The impact with the fence would have been extremely noisy. An impact with the nose of the median strip would have been, by way of contrast, relatively quiet.
59Each of the experts took account of witness statements, not all of which were otherwise adduced in evidence before the Court. Ms Price was before the Court. Her evidence (Exhibit D) was that, prior to the impact with the fence, the motorbike was "leaving the roadway and lifting into the air". She confirmed that observation in cross-examination (Transcript, 104). In her statement to Police, Ms Price also referred to the motorbike wobbling prior to impact with the fence.
60The observation that the front of the motorbike was in the air prior to its impact with the fence, if accepted, has consequences: it would explain the impact with the fence at 250 mm above the road; it explains the "wobbling"; and it is consistent with an impact with the northern edge of the nose of the median strip (see Exhibit 10 as marked in red).
61The investigating and/or attending police officers did not notice damage to the nose of the median strip. They did not look for, or notice, markings by tyres (Transcript, 152, line 29 [answer of the witness wrongly attributed to counsel] and at 153, lines 42-44). There are tyre marks on the nose of the median strip and its northern edge, which marks, although fading out, run along the median strip. There is no evidence that any of those marks were caused by the plaintiff's motorbike tyres.
62I conclude, from all of the evidence that I accept, that the mechanism of the accident was: the plaintiff's motorbike travelled west, up the hill towards the intersection at Longueville Road; the plaintiff was travelling on the correct side of the road in the lane closest to the middle of the road, but did not divert into the right-hand turn lane; as the plaintiff came towards the crest of the hill (that is, at or just before the traffic lights), he noticed the median strip and fence, and adjusted, or attempted to adjust, the direction of the motorbike to take account of the "sharper" curvature of the road, in a northerly direction, to the east of the intersection; the plaintiff's motorbike clipped the northern edge of the median nose (see Exhibit 10) sufficiently hard to cause the front of the motorbike to lift off the road; the motorbike wobbled down the road (but not greatly); the motorbike impacted the fence, wedging between uprights, at a level 250 mm off the road; the rear of the motorbike rotated clockwise in a circular motion; the motorbike, as its rear moved clockwise, dislodged from the fence, fell onto the plaintiff's left leg, and severed it. Part of the foregoing also arises from an analysis of the road itself, which is better described when dealing with the design of the intersection/median strip.
63There are other possibilities. However, the foregoing is most probably what occurred and best fits all of the evidence, without being inconsistent with evidence that I accept. I also have regard to my view, from the expert evidence given and the attitude of the two witnesses, that Mr McDonald was less independent than Mr Schnerring and more obviously an advocate for a particular position. Further, Mr Schnerring is an extremely experienced motorcycle rider of a motorbike the same as, or similar to, the motorbike the plaintiff was riding.
64As elsewhere stated, there were other potential lay witnesses not called. Each had given a statement to the police and each statement had been provided to the relevant experts.
65Each party submits that I should draw a Jones v Dunkel inference against the other party in relation to such witnesses: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The witnesses in this category were not associated with either side. There is no "property" in a witness.
66I do not draw any adverse inference against either side on the basis of the failure to call additional lay witnesses. If I were to draw a Jones v Dunkel inference, it would be that these witnesses do not assist either case, bearing in mind that it is the plaintiff that must prove negligence and the defendant that must show contributory negligence.
67Further, the opinions expressed by the experts are not significantly affected by the absence of some of the statements on which they relied. Generally, although not in every particular, the evidence that was adduced encompasses the range of observations upon which the experts relied.