Hatziandoniou v Ruddy

Court of Appeal (NSW)|2015-06-17|Before: Basten JA, Leeming JA, Simpson JA

Solicitors: Shine Lawyers Pty Ltd (Appellant) Moray and Agnew Lawyers (Respondent) File Number(s): 2014/196799 Decision under appeal Court or tribunal: District Court Date of Decision: 11 December 2013 Before: Delaney DCJ File Number(s): 2013/12786

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

The relevant facts

The collision occurred at about 8.00am on The Putty Road, at Putty in NSW. The Putty Road consists of two lanes only, one northbound and one south bound, each 3.5 metres wide. The road follows a generally north-south direction, although with significant bends and curves. At the part of the road relevant to these proceedings, the eastern and western lanes are divided by unbroken double white lines.
The appellant left Singleton, where he had stayed overnight, at about 7.30am. He was part of a convoy of about 10 riders travelling south towards Richmond and Windsor, intending then to go on to arrive in Canberra at the end of the day.
The respondent was driving a large horse transport vehicle (9.9 metres long and 2.5 metres wide), with three horses on board. He had picked up some horses at Randwick in Sydney and others later in the Hawkesbury. He left the Hawkesbury at about 6.00am and was travelling in the northbound lane of The Putty Road to Denman in the Hunter Valley.
The collision occurred at a point in the road where the southbound lane (in which the appellant was travelling) bends to the left. On the left (that is, the eastern) side there is a sheer vertical rock wall.
It was common ground - and is obvious - that the collision of the two vehicles meant that one or the other was travelling on the wrong side of the road. The issue at trial was whether the appellant could establish that it was the respondent. If he could do so, it could be concluded that the respondent was at fault and the appellant should recover damages (although, at the trial, counsel for the respondent put a contrary proposition, which was, somewhat surprisingly, accepted).
Both parties, not surprisingly, took the position that it was the other who was on the wrong side of the road.
The appellant's evidence was that the sheer rock wall and the physics of the motorcycle's motion made it necessary, when he took the bend to the left, to move further to the right, and towards the centrelines. He said that he had successfully navigated the left hand bend when he saw the respondent's truck approaching from the opposite direction. He realised that he would be unable to avoid collision. He braked and attempted to move closer to the rock wall on the left. At the moment of collision he was in about the middle of his lane. The truck's right hand front wheel struck the engine of the bike on the right side. The appellant also said that he was then close to the double white lines but on his side of the lane. He attempted to regain control of his bike and veered off to a point where he could park the bike.
Also called in the appellant's case was another of the riders in the appellant's convoy, Mr Riddle. Mr Riddle's evidence in chief was to the following effect. He was riding immediately behind the appellant, at a distance of about 10 motorcycle lengths. He saw the appellant rounding the left hand bend by steering his motorcycle towards the centrelines and moving towards the inside (or left) edge of the surface of the road. The appellant then disappeared from Mr Riddle's view.
Before Mr Riddle entered the bend, the respondent's truck appeared from the opposite direction. Mr Riddle said that the respondent's right front wheel was 30cm over the centreline, intruding into the southbound lane. The rear section of the truck protruded by another 30cm into the southbound lane. Mr Riddle rounded the bend and came across debris from the appellant's motorcycle. The appellant was still on the motorcycle but his motorcycle was "wobbling". Mr Riddle saw radiator fluid being pumped horizontally out of the engine. It landed on the southbound lane, about 60cm from the centreline. The radiator fluid was coming from the top end of the motor. Mr Riddle could also see oil coming from the bottom end of the motor.
Mr Riddle saw the appellant come to a halt and alight from his motorcycle. The right hand side of the motorcycle had been torn off. He said that the engine had been "ripped apart".
In cross-examination Mr Riddle accepted that he had not initially observed that the body of the truck encroached by 30cm onto the southbound lane, but that he had come to that conclusion from a photograph he saw that night.
The respondent's evidence was that, as he approached the bend, which to him was a right hand bend, he saw the appellant's motorbike coming around the bend towards him. He had driven the road before and was familiar with the sharpness of the bend, and reduced his speed. He said that he saw the appellant leaning into the bend but "he seemed to be drifting over to my side of the road". He said that the motorcycle collided initially with the front side of the truck and then went under the mirror and ran along the side of the truck for a short distance, scraping the storage area where the horses were kept.
The respondent had made a number of statements prior to trial, including a handwritten statement made on 13 October 2010, the day of the accident, and one to police investigating the accident, and one to his insurance company. These were substantially in accord with the evidence he gave at the trial.
Police were called to the scene but did not arrive until about 2 hours later. By that time the roadway had been cleared of debris. One of the police officers took photographs of the scene. Some of the photographs show a substance on the road surface, on the southbound lane, well away from the centreline. This was accepted as representing the radiator fluid and/or the oil observed by Mr Riddle coming from both the top and the bottom of the motorcycle.
On its face, the location of the liquid from the motorcycle on the southbound lane suggested that the motorcycle had been in that lane at the time the liquid was discharged. A factual issue therefore arose as to whether the discharge occurred instantaneously, or almost instantaneously, with the collision (suggesting that the motorcycle was in its correct lane), or whether there had been some delay after the impact before the fluid began to discharge, during which time the motorcycle had veered back to its correct side of the road.

The findings of the primary judge

The primary judge rejected the evidence of the appellant and of Mr Riddle. He considered that the appellant gave his evidence "in a confused and confusing fashion", and that, on some issues, he attempted to reconstruct rather than giving his evidence from recollection (Red, 25S-T). Importantly (having regard to the issues in the appeal) he concluded that the appellant did not know where he was on the roadway at the time of the collision, or if the respondent's truck was on the wrong side of the road. Accordingly, the appellant's evidence did not establish on the balance of probabilities that it was the truck that had encroached onto the wrong side of the road.
He was no more favourably inclined to the evidence of Mr Riddle, who he described as "not an impressive witness", who was rigid and uncompromising "until presented with irrefutable facts" that forced him to make concessions.
By contrast, he accepted the evidence of the respondent which he considered was given "in a frank and forthright manner and was unshaken by cross-examination". He accepted the evidence of the respondent where it conflicted with that of either the appellant or Mr Riddle.
With respect to the liquid on the road, he held: "58. I am satisfied on the balance of probabilities that the liquid came out of the motorcycle after the collision and after the motorcycle had gone back onto the correct side of the roadway after colliding with the front wheel of the truck. The damage to the truck shown on the front wheel hub is indicative of the collision in the manner in which Mr Ruddy said it occurred, namely that he turned the wheel away to attempt to avoid a head-on collision. If the defendant's front wheel had been angled towards the oncoming motorcycle it is unlikely the collision would have been with the right front hubcap of the truck."
With respect to the question of causation, the primary judge found (seemingly accepting the submissions to the same effect on behalf of the respondent): "61. In the event that I am in error on the question of breach of duty of care and it is found that the defendant's truck was partly on its incorrect side of the road I find that the breach of duty of care did not cause the accident and the plaintiff fails on the question of causation." (Senior counsel for the respondent did not seek to support this conclusion on the appeal.)
He found that the appellant contributed to his own injuries by driving too fast, failing to keep a proper lookout, failing to control his motorcycle, and failing to take appropriate evasive action.
He therefore found that the appellant's case failed on liability. Nevertheless, he proceeded to consider questions of contributory negligence (which he assessed to be 75 per cent) and damages (which he assessed at $232,769.10). I will return to the quantification of damages in due course.

Expert evidence not admitted

Given that the central question in the trial was the location of the point of impact, and that that could be explicated by reference to the fluid discharge, solicitors acting for the appellant retained an expert, Mr William Bailey, to provide a report. Mr Bailey is a mechanical and biomedical engineer. He appended to his report a detailed curriculum vitae. At the commencement of his report he set out those aspects of his specialist knowledge and experience specifically relevant to his investigation of this accident. Included in that list was: "conduct and interpretation of crash tests and other physical testing of vehicles and components which is applicable to the assessment of vehicles/component damage, especially regarding pre-impact vehicle manoeuvres, crash causation and injury mechanisms".
He then provided a summary of his conclusions. Those relevant are: "7. The most compelling physical evidence of the crash was a trail of fluid from the motorcycle that commenced after the impact and ran along the roadway in the southbound lane (ie the plaintiff's correct lane of travel) and approximately 0.5 m from the centreline and essentially parallel with it. 8. Because: � The bike was not deflected at an acute angle from the side of the truck after initial contact but continued along a path parallel with the side for several metres � When fluid from a downward directed pipe located on the offside of the radiator began to be deposited on the roadway, the bike was travelling approximately parallel with the centreline and approx 0.5 metre within the southbound lane. � Coolant under pressure would commence flowing almost immediately after the hose was disconnected. � Engagement of the rotating wheel nuts on the truck had forcefully contacted metal parts on the offside of the bike including the radiator and the engine at a location consistent with the hose being disconnected on impact. it is concluded that the motorcycle was probably on its correct side of the roadway when the impact with the offside front wheel occurred."
The remainder of Mr Bailey's report was an explanation of his reasons for reaching these conclusions. Under a heading "Nature and distribution of debris post impact, including fluid discharge from the bike" appears the following: "a) The debris recorded on the roadway is the fluid discharge from the dislodged hose and radiator pipe on the offside [of] the motorcycle. Using permanent features of the site that were visible in police photographs it was earlier determined that the fluid trail commenced approx 8 metres south of the line where the seal changed on the roadway. The fluid trail was located in the southbound lane approximately 0.5 metres from the centreline. The fluid trail is obscured by absorbent material added by road authorities and the lateral location may be a little closer or further than 0.5 metres. b) Because: � Coolant is maintained under pressure of approx 10psi and the pressure will cause it egress [sic] at any break in the system (eg disconnected hose) � The outlet pipe is located below mid height within the header tank, so coolant will flow by gravity � The engine was running and the water pump will continue to pump coolant from the engine to the radiator even after coolant can no longer be drawn into the engine from the radiator. � The coolant was hot and would have minimal viscosity (ie resistance to flow) discharge from at least the downturned pipe end and probably the hose end, would begin immediately upon disconnection. The pipe is located approx 0.6 metres above the roadway when the bike is upright and it was probable the deposit on the roadway began shortly after the hose was disconnected. c) The fluid trail on the roadway appears to continue along a path approximately parallel with the roadway, indicating that the bike was travelling approximately parallel with the roadway when fluid began to be deposited. d) Scape [sic] visible approximately half way along the truck indicates the bike was travelling approximately parallel with the truck for at least several metres." (Blue 423-4) Mr Bailey restated his conclusion that the motorcycle was probably on its correct side of the roadway when the impact with the truck occurred.
At the trial, objection was taken to the admissibility of Mr Bailey's report. The basis of the objection lay in Mr Bailey's qualifications. A voir dire was conducted. In his evidence in chief Mr Bailey was asked if he had studied "anything in relation to fluid dynamics". He replied: "Yes, it was a requirement that all engineers taking a BE in mechanical or industrial completed courses in fluid mechanics and also in thermodynamics which were relevant to this particular report."
When asked how central to his study the science of physics was, he replied: "In a sense mechanical engineering is the application of physics to the real world. It's at the core of mechanical engineering. Taking physics in its broadest context."
In cross-examination, the following questions were asked and answers given: "Q. … Have you any training or expertise or experience in dealing with the flow of liquids from a motorcycle engine? A. Only in so far as it's analogous to flows from other types of engines but not - I haven't done any studies of flow from motorcycle engines but I note a close correlation with cooling systems that are used in motor vehicles generally. Q. The difference of course between motor vehicles and motorbikes is that on a motor bike the engine is much more exposed to the outside air or the wind passing past a bike. Would you agree with that? A. Yet, it is, to a degree. Q. Have you inspected or tested the flow of liquids from a motorcycle at all? A. Not from a motorcycle, no. Q. Have you carried out any testing on a motorcycle to confirm the way in which liquids would escape from a motorcycle? A. Not from a motorcycle. Q. That's fairly central to your opinion here, is the escaping of the liquids from a motorcycle and where they would end up on the ground, isn't it? A. That's correct. But I made those opinions based on the close correlation between that type of a pressure vessel and pressure vessels with which I am very familiar in motor vehicles generally." He rejected a proposition that there was a difference between pressure vessels in a motorcycle and pressure vessels in a motor car. He was again asked if he had done any testing to see how liquids are affected by the movement of a motorcycle through air. He acknowledged that he had not.
Immediately following the voir dire, the trial judge delivered a judgment in which he excluded part of Mr Bailey's report. He made reference to the decision of the High Court in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 and said: "In this case Mr Bailey has training, study and experience as an engineer. Part of that training and study obviously has something to do with hydraulics but he has never ever in his evidence tested the flow of liquid from a motorcycle engine, interpreted or tested the flow of liquids or done any testing which would enable him to express the opinions which he stated in para 8 of his report. There is, therefore, in my opinion, no basis upon which I could conclude that the opinion which he has given in relation to pt 8 [sic] is based on his specialised knowledge, training, study or experience. Accordingly, part of Mr Bailey's report is not admissible. Paragraph 8 is rejected, on p 4."
Counsel for the respondent then successfully objected also to paragraph 7 of the report, and objected to some other pages, which included that part of the report which discussed the nature and distribution of debris post impact, including fluid discharge from the motorbike.
His Honour said: "Any evidence that relates to a determination made on the basis of the spillage or expulsion of coolant is rejected." That was the extent to which the excluded aspects of the report were specified.
The trial then proceeded with witnesses as to damages, and evidence given by the respondent.

The grounds of appeal

The grounds of appeal as pleaded:

challenge the essential findings of fact;
challenge the rejection of parts of Mr Bailey's report;
assert failure to have regard to those parts of Mr Bailey's report that were not excluded;
assert, in a number of respects, failure to take into account relevant evidence;
challenge the finding concerning causation;
challenge the assessment of contributory negligence; and,
in limited respects, challenge the assessment of damages.

Having regard to the view to which I have come, it is necessary, with respect to liability, only to decide those grounds of appeal that complain of the rejection of parts of Mr Bailey's report, and the failure to take into account those parts that remained.

The rejection of the expert's report

The starting point in considering the admissibility of Mr Bailey's report is the identification of the fact in issue in the proceedings to which his evidence was said to be relevant: Evidence Act 1995 (NSW), s 55. In this case, that fact is easily identifiable: it is the location on The Putty Road of the point where the two vehicles collided. The evidence derived from eyewitnesses was unsatisfactory; at the very least, a greater degree of confidence as to that location could be obtained from supplementary evidence. The appellant sought to obtain that supplementary evidence through the opinion of Mr Bailey. Mr Bailey approached that fact by examining the location and source of the liquid on the road. He reached the conclusions set out above.
Section 76 of the Evidence Act renders inadmissible evidence of an opinion to prove the existence of a fact in issue. That prohibition is subject to the exception contained in s 79(1), which provides: "(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."
For evidence to be admissible under s 79 it must satisfy two criteria: (i) the proposed witness must be shown to have "specialised knowledge based on the person's training, study or experience"; and (ii) the opinion expressed must be wholly or substantially based on that training, study or experience: Dasreef at [32].
The primary judge appears to have rejected the evidence of Mr Bailey as failing to satisfy both criteria: he acknowledged that Mr Bailey had training, study and experience as an engineer, but discounted his evidence of having completed courses in fluid mechanics and thermodynamics, and of the close correlation between pressure vessels on motorcycles and those in motor vehicles generally, with which Mr Bailey was very familiar. Indeed, his reference to Mr Bailey's training having "had something to do with hydraulics" could be seen as inappropriately dismissive and certainly as failing to consider Mr Bailey's unchallenged evidence as to that part of his training and experience.
The finding that there was no basis upon which to conclude that Mr Bailey's report was based on his specialised knowledge, training or experience is unsustainable on both counts. His qualifications included the conduct and interpretation of crash tests, and other physical testing of vehicles and components applicable to the assessment of damage.
The primary judge adopted the submission of counsel for the respondent that, since Mr Bailey had not "tested the flow of liquid from a motorcycle engine", he was not qualified to express the opinions that he had.
This was an unduly narrow approach to the question of the qualifications of Mr Bailey to express his opinion as to the mechanism by which the fluid came to be where it was on the road. Mr Bailey had training in fluid dynamics, and expertise in cooling systems in motor vehicles; that expertise was sufficient to support an opinion about the operations of a breached cooling system in a motorcycle. One of the benefits of expertise is that it enables the person who has the relevant "training, study or experience" to extrapolate from the general to the particular. Mr Bailey had the requisite specialised training to enable him to draw conclusions about the particular circumstances of this collision. (Those conclusions would, of course, be subject to cross-examination, and to any contrary evidence adduced on behalf of the respondent.)
It follows from the above that Mr Bailey's evidence was wrongly excluded. The only possible consequence of that conclusion is that the verdict and judgment must be set aside and a new trial ordered. There must be a new trial because, on the exclusion of Mr Bailey's evidence, he was not cross-examined, and counsel for the respondent forbore to tender the report obtained on behalf of the respondent. It will be necessary for the competing expert evidence to be properly evaluated in a new trial.
Although, associated with this ground of appeal was a complaint that, having excluded parts only of the report, the primary judge failed to consider that which remained, the Court was not directed to any other relevant conclusion or opinion.
The conclusion that Mr Bailey's opinion evidence was wrongly excluded makes it unnecessary to resolve the other issues raised in the appeal concerning liability.

Damages

The primary judge proceeded, notwithstanding his findings on liability, to assess the damages that he would have awarded had the appellant been successful in his claim. Four challenges were initially made; these were to the assessments as to the amounts that would have been allowed in respect of:

non-economic loss,
future medical expenses,
paid commercial domestic assistance for the future, and
future economic loss. At the hearing, the challenge to the assessment of damages for non-economic loss was abandoned; no submissions were put in respect of the award of the allowance made for future medical expenses; the challenge to the amount allowed for paid domestic assistance in the future was conceded on behalf of the respondent, and quantification agreed (at $15,000). That leaves for determination only the amount allowed in respect of the impairment of the appellant's future earning capacity. That quantification is governed by s 126 of the Motor Accidents Compensation Act 1999 (NSW), which provides as follows: "126 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

The primary judge made findings, uncontested, as to the appellant's injuries, as follows: "70. The plaintiff suffered serious multiple fractures to his right arm, wrist and hand for which he was operated on. He has been left with permanent scarring and pain, discomfort and restriction of movement of his right arm, wrist and hand. These disabilities impact upon his enjoyment of everyday life. Although he has made a good recovery, he nevertheless has permanent disabilities for which an appropriate award of damages is required. I generally accept the evidence of the plaintiff and his wife about the effects of the accident on his social and working life. I am satisfied that his emotional state has been disrupted as outlined in the unchallenged evidence of [the appellant's wife]."
The evidence relevant to the appellant's claim for loss of earning capacity was given by himself and by his wife, and was as follows.
The appellant was born in 1968. He was 42 years of age at the date of the accident, 45 at trial, and 47 at present. He holds an Honours degree in materials engineering. While studying for this degree at Wollongong University he worked fulltime for BHP. In 1992 he married. His wife is a general medical practitioner. They moved to Queensland in 1993. The appellant worked for a short time as a research assistant at the University of Queensland. Following that he held engineering positions involving repair of ships, oil tankers and freighters.
In 2001 the appellant's wife purchased a medical practice on Bribie Island. At the same time, the appellant felt that engineering work positions in Brisbane were not sufficiently financially rewarding, and that, if he were to remain employed in engineering, it would be necessary to travel to the west or the north to work in mines. Instead, he opted to take up a position as his wife's practice manager, a position he continued (at least to the date of trial) to occupy.
The appellant's wife was born in 1956, and was, at the date of trial, 57 years of age. She anticipated working fulltime at least to the age of 60, and then reducing her hours, perhaps employing another doctor, and to work on that basis until the age of 65 (in 2021). She was unable to project further than that.
On that basis, the appellant claimed that his employment in the medical practice would be likely to terminate somewhere between 2016 (when he would be 48) and 2021 (when he would be 53). Uninjured, he claimed, he could then have returned to an engineering career, allowing for a period of retraining. However, while he is capable of working in his present role, his injuries would preclude a return to engineering. The appellant accordingly claimed an award of damages that would reflect his impaired earning capacity on the assumption that, absent the injury, he would, between 2016 and 2021, have returned to engineering employment. He accepted that his engineering skills would, by then, be (as, indeed, they already are) significantly out of date, and he would, at the very least, require retraining.
The primary judge (correctly, in my opinion) rejected the appellant's proposition. While accepting some impairment of earning capacity, he considered that the extent to which that impairment would in fact have been productive of actual financial loss could not be accurately quantified. He therefore allowed a "cushion" or "buffer" of $30,000.
On appeal, the appellant accepted that the allowance for a cushion as distinct from quantification by reference to likely future earnings was appropriate. However, it was submitted on his behalf that the allowance of $30,000 was insufficient to take account of the "narrowing of avenues of employment" and that a realistic figure is in the order of $150,000.

Determination

In my opinion, no error has been shown in the approach of the primary judge. The reality is that, by 2016 (the earliest date by reference to which the appellant contends an award of damages ought to be calculated) he will have been out of the engineering workforce for 15 years, and will be 48 years of age. By 2021, the latest of those dates, he will have been out of the engineering workforce for 20 years, and will be 53 years of age. It is unlikely that, even uninjured, he would, after 15 to 20 years' absence, have returned to the kind of engineering that involves strenuous physical activity or agility and from which he is precluded by his injury. Moreover, it is likely that the retraining that would be necessary would be significant.
It is not clear, however, why other engineering related employment would not be available to him if he were retrained, and living in a geographically suitable location. In other words, his injury does not preclude all forms of engineering employment. In my opinion, the allowance of $30,000 was within the available range to compensate the appellant for the impairment of his earning capacity.
Given the verdict and judgment for the respondent, there is no appeal against the quantification of damages. To the extent that it is open to do so, I would reject the challenge to the notional amount specified in relation to future economic loss.
The orders I propose are: (1) Appeal allowed; (2) Verdict and judgment set aside; (3) There be a new trial limited to the questions of the liability of the respondent and contributory negligence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2015

At a glance

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Judgment (11 paragraphs)

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Legislation Cited (2)

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