The Plaintiff's Case
14 The plaintiff's evidence at the trial was that on 29 July 2000 he was a member of a group of 20 or so people, some of whom were members of the Bandidos and some of whom were not, who rode from the Bandidos clubhouse at Richard Close, North Rocks to Manly, to attend a bike show. One member of that group was a man, known to the plaintiff only as Bluey, who was riding a red Harley Davidson motorbike, of a type known as a Heritage Softail. On the way to Manly, the plaintiff noticed that that bike was making a rattling noise that he could hear above the noise of the bike, but the cause of which he could not then identify. After spending a few hours at the bike show, they all returned to the clubhouse at North Rocks. The plaintiff spent some hours there, then telephoned his girlfriend to ask her to pick him up and take him home. While waiting for her, in Loyalty Road, the red Softail ridden by Bluey arrived. It was still making the rattling noise that the plaintiff had heard earlier. The plaintiff, with the rider's consent, went to investigate the source of the noise. He saw that there was a nitrous oxide bottle attached to a structural member of the bike called the swing arm, at the rear of the right-hand side of the bike. That nitrous oxide bottle was cylindrical, about 20 cm high, and 14 cm in diameter. At a time when the motor of the bike was not activated, the plaintiff crouched down, with one knee on the ground, on the right-hand side of the bike just forward of the rear wheel. At the plaintiff's request, Bluey started the motor, and gave it a rev. The plaintiff noticed that the bottle moved up and down along the swing arm, and that it touched the rear exhaust. He "heard a funny hissing noise, and then I don't remember too much after that." He felt pain in both his hands, and saw that "most of my left hand was ripped to shreds". He said he had not seen Bluey since the accident.
15 Another witness called by the plaintiff was Mr Glen O'Sullivan. Mr O'Sullivan had attended the bike show at Manly on 29 July 2000. He gave evidence of having seen there a red Harley Davidson bike that was "very customised", with a lot of extras. He noticed that the components of the bike were "very distinctive".
"Q. In what way?
A. Just the pattern on the handlebars, the motor, just the way the bike was set up in general.
Q. What was it about the motor?
A. Just it had - it had like a nitrous kit on it."
16 He was told by Mr Troy Kenda, at the bike show, that that was Bluey's bike. He arrived at Loyalty Road after midnight, and found the plaintiff sitting in the gutter with his hand wrapped in a towel or a T-shirt, already injured. Mr O'Sullivan drove the plaintiff to Westmead Hospital. Later, at the request of the plaintiff's girlfriend, Ms Nicole Millen, he wrote down the registration number of Bluey's bike, after seeing that bike outside the Pendle Hill Hotel, and recognising it as the same bike he had previously seen at Manly. He gave that registration number to Ms Millen.
17 The plaintiff also called Mr Troy Kenda. He gave evidence that he had known a man he referred to as Bluey for about six months, having met him "approximately half a dozen; perhaps a bit more" times at the Pendle Hill Hotel. Bluey was also referred to by other people by the nickname of Doozy, and responded to that name. He had a distinctive sort of motorcycle.
"Q. What was distinctive about it?
A. It was red in colour, or - depends which way you look at it - various different coloured red, but it had excessive chrome on it and it had a nitrous oxide bottle on the right hand side of it, with a distinctive red --
…
Q. And it had a nitrous oxide bottle?
A. A nitrous oxide bottle on it with a distinctive NOS sticker on it.
Q. A distinctive NOS?
A. NOS sticker on it - nitrous oxide system.
Q. NOS sticker?
A. Yes.
Q. On which side of the bike was the bottle mounted?
A. On - looking at it from behind, on the right."
18 At the Manly bike show on 29 July 2000, he pointed out Bluey's bike to Mr O'Sullivan, and told him that it was Bluey's bike. Mr Kenda also attended the club premises at Loyalty Road that night, and saw Bluey near his motorcycle. He saw Bluey start the engine, and saw Bluey looking down to the right of his bike, "and there appeared to be something wrong to his bike - with his bike". Mr Kenda heard a rattling noise. He offered to get one of his friends to have a look at the bike, and summoned the plaintiff. Mr Kenda saw the plaintiff bend over the bike, looking at the motor,
"… and he was engaged with conversation with Bluey, and then once I seen they were working -- working out -- working out on the motorbike … and I saw that was okay and proceeded just to walk off and I was talking to other people".
19 Next, Mr Kenda
"heard a large bang like a tinny sort of bang behind me, and I've turned around and Noel was crouched down and there were people rushing about him; a bit of commotion".
20 Mr Kenda got the plaintiff "a towel to put around his arm. I think he already might've had something around his hand".
21 A difficulty for the plaintiff at the trial arose from the fact that, before he had commenced proceedings against the defendant, he had commenced proceedings against the registered owner of a different motorcycle, registered number WQK - 08. Those proceedings were abandoned when it was realised that WQK - 08 had been in a police holding yard on the night the plaintiff sustained his injury. The plaintiff's counsel called oral evidence seeking to explain how that mistake had been made. Ms Millen, and the plaintiff's solicitor, Mr Lincoln Kennedy, each gave evidence on that topic. It was to the effect that the erroneous identification had been made during a period when the plaintiff was in prison. Mr Kennedy had asked Ms Millen to find out the registration number of the motorcycle involved; she had passed that request on to Mr O'Sullivan and Mr Kenda; one of them had given her information about the registration number, which Ms Millen had passed on to Mr Kennedy.
22 As well, the plaintiff's counsel tendered the particulars of registration relating to WQK - 08. Those particulars describe the vehicle make as "home-made" and the year model as 1999. The Harley Davidson Softail motorcycle had at one time prior to the trial (the evidence does not make clear exactly when) been "reintroduced after a 15-year hiatus". In those circumstances, motorcycle registered number WQK - 08 seems to be different to the motorcycle described by the plaintiff and his witnesses.
23 The plaintiff also called expert evidence from Mr Colin Simpson, who has qualifications both in engineering and as a mechanic. He gave evidence - which was not challenged - about how nitrous oxide systems work. When nitrous oxide is injected into the combustion chambers of internal combustion engines, it is heated to a temperature sufficient to cause it to break down into its component elements of nitrogen and oxygen, producing a mixture of gases containing significantly more oxygen than air contains, enabling a significant increase in power to be obtained from the engine. He explains:
"As the nitrous oxide system is supplementing the volume of air that is being drawn into the engine, it can be seen that large quantities of nitrous oxide (and air) can be expected to be utilised. For this reason, and because of the limited volume storage available on vehicles generally, the system is only utilised as a "power shot" system ie., one that is utilised over a short, sharp period of time. Typically it would be used in a racing situation and, more often than not, where increased acceleration is the desired result, ie., when "drag racing".
The system is controlled by a handle bar mounted switch, in the case of a motor cycle mounted system, and can only be operated for a short period of time (measured in seconds).
In summary, a nitrous oxide injection system on a motor cycle is a system that is intended to provide a large increase in power (torque) for a short burst period of time with the prime benefit being a sharp decrease in acceleration times, such as is desirable when drag racing."
24 Mr Simpson's evidence was that, while nitrous oxide is non-flammable, the NOS brand of system that was available at the time he prepared his evidence, and that was suitable for installation on Harley Davidson motorcycles, stores the nitrous oxide in a bottle that contains the gas under a pressure of approximately 950 psi. That bottle is manufactured from an aluminium alloy material. It is attached to the frame of the bike by a bracket that has a circular loop protruding from it, designed to hold the bottle in place. That loop appears to be adjustable in size. I infer that if the loop is loosened, that enables the bottle to be removed for the purpose of being refilled with nitrous oxide, while if it is tightened when the bottle is inside the loop it should hold the bottle firmly.
25 When preparing his reported dated 2 August 2005, Mr Simpson obtained from the Internet a copy of the then current version of the NOS manufacturer's brochure. That brochure explicitly categorised some of its statements as "warnings", and said, concerning a warning "failure to comply with instructions may result in injury or death." One such warning was "Never drop or violently strike the bottle. Doing so may result in an explosive bottle failure." He expressed the opinion:
"The looseness, or rattling, of the bottle strongly suggest to the writer that the aluminium alloy bottle was loose in its mounting and was thus able to rub on its mounting, or some other component.
Aluminium alloy materials, being relatively soft, have a known propensity for rapid wear during vibration induced rubbing events and it is the view of the writer that the wall thickness of the gas bottle was probably significantly compromised such that the ability of the bottle to withstand the internal pressure within was also severely compromised."
26 According to Mr Simpson, both in being small (of 10 ounce capacity), and in being manufactured from aluminium alloy, the nitrous oxide bottles that are suitable for fitting to a motorcycle differ significantly from the steel bottles commonly used to hold high pressure gases for medical users, or for ordinary use such as barbecues or compressed air for scuba-diving. The aluminium alloy has about one-third of the strength of steel.
27 Mr Simpson also expressed the opinion:
"it is simple engineering (and physical) fact that if a cylinder of any type is loose within its mounting, then it will vibrate and is thus subject to fretting and wear. If the cylinder is made of an aluminium alloy, as is probably the case in this matter, then the wear rate can be expected to be rapid."
28 Mr Simpson noted that his instructions were that the plaintiff had suffered the following injuries:
"1. Loss of ring, middle and index fingers on left hand.
2. Injury to left hand and wrist.
3. Fracture to right hand.
4. Left knee punctured and torn.
5. Cuts and abrasions.
6. Sight blurred."
29 He expressed the view:
"The movement of the bottle in the hands of the Plaintiff may well have punctured the already compromised bottle wall and with internal pressures, such as that which is expected, ie., of the order of 950 psi, the failure of the wall of the gas bottle must occur in an explosive manner. If that were to occur whilst the Plaintiff (or any other person) was crouched next to it then very clearly everything in the explosive path of that bottle is likely to be struck by the fractured components of the bottle and, indeed, the blast of the gas itself.
In the opinion of the writer, the injuries quoted above, including that injury described involving the left knee, fits the description of the accident event whereby it is alleged that the nitrous oxide bottle suddenly exploded with the Plaintiff crouched beside it and (probably) holding the bottle with his left hand."
30 Mr Simpson also gave evidence that it was possible for an exploding canister of compressed gas to cause a "cold burn" when it comes in contact with skin:
"As the gas is explosively released, there is a very rapid drop in temperature and it's that very rapid drop in temperature with the gas when it comes into contact with any part of the body that causes the cold burn."