Maric v Nominal Defendant

Issues in the appeal 4Although Mr Morrissey was joined by the appellant as a party to the appeal, the Nominal Defendant did not cross-appeal from the dismissal of its cross-claim against him. Mr Morrissey was not represented or present at the hearing of the appeal. 5The appellant appeals from the primary judge's failure to hold that the accident occurred on a "road" and against his finding of contributory negligence. The first respondent, by its notice of contention, says that the primary judge should have dismissed the appellant's claim because he had not established negligence on the part of Mr Morrissey. The resolution of each of these issues depended upon the evidence led as to where and how the accident happened. 6The only witnesses who gave evidence as to these matters were the appellant and Mr Morrissey. The primary judge made adverse findings as to the reliability of the evidence of each of them. Neither of those findings is challenged, and each remains relevant to the resolution of the issues in the appeal. That is because, as will be seen, there was no evidence as to the circumstances of the accident which did not have as its source one or other of those witnesses. The primary judge found their evidence to be unreliable principally because the versions they gave as to what happened had changed significantly over time and, as finally given, were not wholly consistent.

The issues before the primary judge 7By his statement of claim filed on 30 November 2009 the appellant pleaded the following facts as entitling him to bring the action for recovery of damages under s 33: "2. On 6 April 2007 the Claimant was riding his motor cycle registered number UCD.29 upon Old Western Road, Rydel [sic] in the State of New South Wales. 3. As the Plaintiff was negotiating a sweeping left curve, Geoffrey Morrissey riding an unregistered and uninsured motor cycle, overtook the Plaintiff passing the Plaintiff's right side and thereupon swerving left and braked in the direct path of travel of the Plaintiff causing the Plaintiff to apply his brakes heavily to avoid collision in consequence whereof the Plaintiff lost control of his motor cycle, fell and suffered serious loss and damage. 4. At all material times the said Old Western Road, Rydel [sic] in the State of New South Wales as [sic] a public street. 5. At all material times and on 6 April 2007 the motor cycle ridden by Geoffrey Morrissey was unregistered and uninsured and the Plaintiff brings these proceedings against the Nominal Defendant pursuant to Section 33 of the Motor Accidents Compensation Act." 8The Nominal Defendant denied the allegations in each of those paragraphs. During the course of the hearing, it made the two concessions recorded by the primary judge at [3]: "The defendant conceded that the plaintiff was injured in an accident involving a motorcycle but denied virtually every other aspect of the plaintiff's claim. The denial extended to the location of the accident. This was said to be the Old Western Road at Rydal, near Lithgow. Ultimately the defendant accepted this road was a public road but continued to deny that the accident had occurred on this road." The concession that Old Western Road was a "public road" was treated as an admission that it was a "road" within the meaning of s 4 of the Vehicle Registration Act.

The evidence of the appellant and Mr Morrissey 9The version of events which identifies Mr Morrissey as the driver of the motorcycle which caused the accident did not emerge as part of the appellant's claim until late August 2009. Before that time, and from at least September 2007, the appellant had made a claim against the Nominal Defendant on the knowingly false basis that he could not identify the driver of the other motorcycle. 10The accident happened on the Friday evening of an Easter weekend. The appellant, Mr Morrissey and a Mr Bridge had travelled from Sydney to the Lithgow area in the appellant's van. That van also carried three trail bikes. Their destination was a campsite near Lake Lyell. Mr Morrissey and Mr Bridge had consumed significant quantities of alcohol on that journey. 11The earliest records containing reports of the appellant as to the circumstances of the accident are an Ambulance Report and a Lithgow District Hospital Emergency Department clinical record. Both are dated 6 April 2007. Each describes the appellant as having "braked suddenly" but makes no reference to the involvement of a second motorcycle. The first reference to the involvement of another motorcycle is in a letter of Dr Viglione, an orthopaedic surgeon, to the appellant's treating doctor dated 18 April 2007. That letter recorded that "[s]omeone stopped in front of him". 12The accident was not reported to the police at the time it happened. However, the results of the analysis of a blood sample taken at the hospital were forwarded to the police and in June or July 2007 a Constable McPherson attended the appellant's home to advise him of those results. Constable McPherson also took a very short description of the accident. That description was recorded in his notebook and signed by the appellant. It says: "Riding bike on private property near a dam near Lithgow. It's about 15 minutes from there. I was on track and I fell off. I broke my shoulder and left wrist. I was taken by ambulance to Lithgow Hospital. I was riding with two other people." 13The first Motor Accident Personal Injury Claim Form completed by the appellant is dated 20 September 2007. It refers to the involvement of an unidentified rider who "stopped" in front of the appellant. A diagram which was part of the completed form showed the accident happening on the approach to a left-hand bend. 14In April 2008 the appellant was interviewed by an investigator retained by the NRMA. He confirmed in that interview that he could not identify the other rider. Mr Morrissey was also interviewed at this time. In a signed statement dated 25 June 2008 he said that he did not go riding with the appellant on the evening that they arrived at the campsite. 15Following a conference with counsel in August 2009 in which, as the appellant accepted, he "accidentally" disclosed that he was aware of the other rider's identity, a revised claim form was completed together with a statutory declaration sworn on 18 September 2009. Mr Morrissey was now identified as the rider of the other motorcycle. The appellant explained that he had not previously instructed his solicitors of that fact because he thought his injuries were minor and that he could get Mr Morrissey into trouble because, at the time, Mr Morrissey was on bail and the subject of an unresolved criminal charge. The appellant's change of course reflected, so he said, the advice of counsel that he should tell the truth. 16After Mr Morrissey's involvement in the accident was disclosed, further written statements were made by each of them. The appellant's statement dated 7 October 2009 referred to Mr Morrissey overtaking, applying the brakes and skidding out "in front of me so that the length of his bike blocked my path for a moment before he continued on his way. Mr Morrissey, in a statement dated 15 June 2010, gave a different version of what happened: "17. I came up behind them and I realised I was travelling too quickly. I had trouble with the brakes on the bike and before I could slow the bike down I had overtaken them on the left hand side this being on the outside of the corner. I could not say how fast I was travelling but it was not excessive. I travelled up the road a bit further and I realised the other two were not with me. 18. I turned around and road [sic] back and when I came to the corner that I had passed them on I saw Stefan was lying on the roadway and his bike was in the middle of the road. I pulled up and got off the bike and I said to Shane, "What happened" He said, "You cut him off." When he said this I realised it must have been when I overtook him on that corner. I was lucky myself that I stayed on the road and did not hit a tree. I believe that I did not come into collision with Stefan's bike and he must have lost it in the dirt. I do not believe that I would have got within one metre of him at the time." 17The appellant's oral evidence was summarised by the primary judge as follows: "[22] Just before the plaintiff took the corner another motorcyclist came "flying past" and "he's locked it up in front of me, slid the back wheel out, and left me nowhere nothing to do but try and stop before I hit him" (T 24.5). The plaintiff "applied the brakes deliberately and I just instinct made me slam the brakes on and yeah I come off the bike, got thrown over the handlebars." (T24.10)." 18The appellant gave evidence that the accident happened on a roadway shown in two photographs which he said were taken about 12 months after the accident. The first of those photographs (Exhibit A) showed a dirt road with a slight incline and bend to the left. The appellant said that the accident happened as he approached that left-hand bend and that the other rider had overtaken on his right. That was inconsistent with Mr Morrissey's most recent statement which said that he had passed the appellant on the left side (see [16] above). In cross-examination Mr Morrissey said that when he overtook the appellant, he did so on the "right side". After further questioning he said he could not remember whether the bend was to the left or the right. He maintained, however, that he overtook the appellant on a corner, that he braked because he thought he was going to hit a tree and that this resulted in his back wheel locking up. By that time the appellant was behind him and he had "no idea" whether he was ten, two or one metre behind him.

The primary judge's findings as to the reliability of the evidence of the appellant and Mr Morrissey 19The primary judge recorded, at [115], the submissions of the parties as to the reliability of the evidence given by the appellant and Mr Morrissey: "[115] The plaintiff's submission is that both he and Mr Morrissey have confessed their dishonesty and both now should be believed in their honest oral evidence. The Nominal Defendant's submission is that the evidence of both the plaintiff and Mr Morrissey is so riddled with lies, contradictions and inconsistencies that I could not be satisfied about any matter other than the plaintiff had come off a motorcycle and suffered some injury." 20After referring to inconsistencies between the appellant's evidence that he was healthy and working regularly before the accident, and that of his partner Ms Hogg that in the two years prior to the accident he had worked very little, the primary judge continued: "[117] ... I am of the view that the plaintiff tried to mislead the court in painting a significantly rosier picture of his life and work before the accident than reality reflected. [118] Taking into account the just made observations, together with all the inconsistencies that are rife in his statement and adding in his preparedness to lie in pursuing his claim, and to the police, I have come to the view that the plaintiff's credit needs to be treated with extreme scepticism. In my view, his evidence, where controversial, should not be accepted unless corroborated by other reliable evidence." (emphasis added.) 21The primary judge said, in relation to Mr Morrissey's evidence: "[120] I have reached essentially the same conclusion about Mr Morrissey, although my conclusion is more concentrated on his reliability than his credit. [121] As with the plaintiff, Mr Morrissey's oral evidence is to be compared not only against the background of the lie about his identity but also must be compared with the inconsistencies that arise between his oral evidence and his statement given after the original lie was exposed." (emphasis added.) 22The inconsistencies referred to are Mr Morrissey's evidence as to whether he had overtaken on the left or right and his evidence as to whose idea it was to conceal his involvement in the accident. In his oral evidence, which the primary judge accepted (at [122]), Mr Morrissey maintained that it was he who first suggested that his involvement in the accident not be disclosed. In his earlier statement he had said that he had been prepared to "go along" with the appellant's decision that he not be named. 23The appellant accepts the correctness of the primary judge's conclusion that "where controversial" his evidence, and that of Mr Morrissey, should not be accepted unless corroborated by other reliable evidence. The principal matters of controversy were as to where and how the accident occurred. That was reflected in the pleadings and in the way the trial was conducted. The only thing relevant to those matters which was not controversial was that the appellant had been injured in an accident involving his motorcycle. 24The arguments made on appeal must be considered in the light of these unchallenged findings.

Did the primary judge err in not concluding that the accident happened on a "road"? 25The appellant's pleaded case was that the place or area where the accident happened was the Old Western Road, Rydal. No evidence was led as to the location of Old Western Road in relation to Rydal or Lake Lyell, or as to where on that road the accident had happened. Nor was any evidence led to show the location of the campsite in relation to Old Western Road or Rydal or Lake Lyell. 26The appellant gave evidence that the area where the accident happened was shown in the two photographs. In his evidence in chief, the appellant, when asked the name of the road on which the accident had occurred, said: "I think it was Old something Road, Old Western Road, I didn't know that at the time, I know that now." 27The appellant says that the primary judge erred in not accepting this evidence. He submits that his evidence identified four credible sources of his knowledge of the identity of that road - the Local Council, Ms Hogg, the police and his solicitor. He also refers to the printout from the New South Wales Police "COPS" report which states that the accident happened on Old Western Road. He relies on statements in that printout as corroborating his evidence. 28The primary judge concluded that the evidence did not establish who had told the appellant that the road on which the accident had happened was Old Western Road. More significantly, his Honour found that the evidence did not reveal what information was available to the appellant's informant to enable him or her to say that the accident had occurred somewhere on that road: at [130]-[137]. The primary judge also concluded that the entries in the police records did not corroborate evidence of the appellant either as to the location of the accident or as to the correct description of that location: at [138]-[141], [142], [146]. In my view, each of these conclusions involved no error on the part of the primary judge. 29In cross-examination the appellant said that when Constable McPherson visited him in June or July 2007, he told the appellant that the "unknown" road on which the accident had occurred was a "public road". The evidence did not indicate what information, if any, had been given to Constable McPherson as to the whereabouts of the "unknown" road, or as to where the accident had happened, to enable him to conclude that it had occurred on a "public road". In the absence of such evidence, there was no basis for making any finding as to where the "unknown" road was or that it was the road on which the accident had happened. 30The appellant gave evidence that his partner, Ms Hogg, had made some inquiries to identify that "public road". In particular he relied on the following exchange in cross-examination: "Q: How have you been able to identify the place where the accident occurred? --- A: Because I've been there before and I know where it is. Q: But how have you been able to identify the road that it's on? A: Because there's only one road, and I know where we camped and I know exactly where it was. Q: Where did you acquire the - did you acquire information that it was a public road? A: No, I didn't, no. Q: Do you know anyone that did? A: I'm pretty sure Debbie did, yeah, the police told me so that was where I got it from. Q: Well, what is the name of the road? A: It's Old Western Road as far as I know." (Tcpt 1/05/12, p 146) 31The appellant was then referred to a paragraph in one of his written statements in which he said that he had been advised by the local Council of the name of the relevant road. He was pressed further as to the source of that information: "Q: Well, when you say you've been advised by the Local Council, was that over the phone or - A: I don't know who it might be - Q: Got no idea - A: It might have been the solicitor, it might have been Debbie, it might - I can't remember who advised me or the police told me it was a public road, and I don't know who advised me of the name of it." (Tcpt 1/05/12, p 146) This evidence justified the primary judge's conclusion (at [137]) that the appellant's "final position" was that he did not know the source of his knowledge as to Old Western Road. 32Ms Hogg gave evidence in the appellant's case but her statement did not address any question of liability, and she was not examined in chief as to whether she had made any inquiries to identify the location where the accident was said to have occurred. Specifically, she gave no evidence as to any description of that location communicated to her by the appellant or anyone else. Nor did she give evidence of her description of that location to another person by whom she was advised that it was on Old Western Road. The appellant's submission that no adverse inference could be drawn from the fact that none of these questions was asked of Ms Hogg should be rejected. In the absence of those questions the primary judge was entitled to infer as he did (at [146]) that such evidence would not have assisted the plaintiff's case: see Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63] (per Heydon, Crennan and Bell JJ). 33The computer entry in the New South Wales Police "COPS" database, for the event reported by the appellant in March 2008, recorded that the "unknown road" on which the accident was said to have happened was Old Western Road. The evidence, however, did not indicate who was the source of the entry in the police records, or the basis on which it was made. No police officer had attended the accident scene or could have identified it without a description from the appellant or one of the other eye witnesses. Those witnesses were Mr Morrissey and Mr Bridge. The only person having personal knowledge of where the accident happened who had contact with the police appears to have been the appellant. There was no evidence from the appellant as to what he may have told the police other than as recorded in Constable McPherson's notebook. That note refers to a "track" on private property. The computer entry refers to the appellant riding "his motorbike along an unknown rd, but adjacent to Rydal Rd" and to further inquiries revealing that the road "was not a private rd". It does not, however, identify the source of that information or explain why the "Incident Location" is described as Old Western Road. That being the position, none of these entries could constitute independent evidence of the location of the accident or its identification as having been a point on Old Western Road. 34The primary judge correctly observed and concluded: "[142] ... Establishing the location and name of the road should have been a simple exercise. It would have required no more than a map, perhaps even a Google satellite view, or a letter from the local council. None of these are present. As I have said, Ms Hogg did not give any evidence about her alleged inquiries. The police officers were not called. All that is left is the plaintiff's assertion that he had found out the name from somewhere, which might have been Ms Hogg, or the council, or the police or his solicitor." "[146] The reliable, independent sources that may have corroborated the plaintiff's evidence are all absent (the map, the police officers, a council employee or document, evidence from Ms Hogg or a solicitor). I can do no more than infer that any such evidence would not have assisted the plaintiff's case. However, I can find, in the absence of such evidence, that there is no corroboration of the unreliable plaintiff. Accordingly, I do not accept that the plaintiff has proved, on a balance of probabilities, that the accident occurred on the Old Western Road or in fact anywhere else." In this context, his Honour's reference to "anywhere else" must be understood as being to any other particular location. 35The appellant has demonstrated no error on the part of the primary judge in arriving at that conclusion. Once it is accepted that the findings as to the reliability of the evidence of the appellant and Mr Morrissey were correct, his Honour's conclusion followed because the only evidence as to where the accident had happened was that of the appellant and Mr Morrissey. The appellant's evidence described the area in which the accident happened by reference to two photographs and, whilst accepting that he had no personal knowledge of it being so, asserting that the area shown was on the road known as Old Western Road. There was no independent and reliable evidence which connected the location of the accident with Old Western Road. 36The appellant's alternative argument was that he had nevertheless established that the area where the accident had occurred answered the description of "road" in s 4 of the Vehicle Registration Act. That depended upon whether that area was "open to or used by the public" and "developed for" the driving or riding of motor vehicles. 37In Schubert v Lee [1946] HCA 28; 71 CLR 589 at 593, Latham CJ, Rich and Dixon JJ said of the meaning of the words "open to or used by the public": "In our opinion [those words] ... should, as the Full Court has held, be construed in the same way, so that a lane falls within the definition if in fact it is "open to or used by the public," whether or not there is a public highway over it. There was evidence that the lane in question in this case was in fact regularly used by the public." 38Where it is not established that the relevant area is a road designated for public use, or that there is otherwise an entitlement or invitation to the public to use it as such, it must be shown that, at the relevant time, it was being used by the public "as the public". That requires that those who are using the road are doing so because any member of the public, without discrimination, may do so: Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd (1982) 1 NSWLR 728 at 735; Ryan v Nominal Defendant [2005] NSWCA 59; 62 NSWLR 192 at [5], [6], [82], [87]-[91]. 39The appellant relied on his evidence, the photographs and the evidence of Mr Morrissey as establishing that the accident happened on an area formed for use as a road and which was the only road providing access to and from the campsite, without discrimination, to any member of the public. The members of the public using that road included, on the day of the accident, the ambulance service. 40The primary judge rejected this argument for two reasons. First, he did not consider that the appellant was able to make it without an amendment to his pleadings: at [149]-[151]. It is not necessary to consider whether this conclusion was correct because the Nominal Defendant does not seek to support it as a reason for rejecting the argument. Secondly, the primary judge concluded that the evidence did not enable him to reach "any conclusions about the land on which the road [where the accident is said to have occurred] is situated": at [151]. He considered that the "location of the accident is incapable of identification" so that no conclusions could be drawn as to its usage by members of the public: at [154]. Implicit in that conclusion is the rejection of the appellant's contention that he had established that the accident occurred on the road providing access to the campsite. 41The appellant challenges that conclusion. He submits that his evidence and that of Mr Morrissey was that the access to the campsite was "via the road on which the accident occurred". The road was open to the public, as was demonstrated by the presence of 20 or more people at the campsite on the evening of the accident. The ambulance also had gained access to that campsite, which was described in the Ambulance Report as "Rydal Campsite". 42The evidence relied upon as establishing that the accident happened on the access road to the campsite is the evidence of the appellant (extracted in [30] above) and evidence given by Mr Morrissey. As to the former, that evidence does not unambiguously state that the place where the accident happened was the road which was the only means of access to and from the campsite. As to the latter, Mr Morrissey, in his evidence in chief, described the road on which the accident happened as a winding dirt road. He did not identify that area by reference to the photographs, its position on any map or by reference to any road. In cross-examination he agreed with the following description of the route which the appellant's van had taken to the campsite. That description was taken from his statement dated 15 June 2010: "14. We drove to the Lithgow area and when we got to a service station on the Great Western Highway before you get into Lithgow we turned left. We drove down the road there and it was bitumen. We went down over the wall of Lake Lyell and up the other side. We travelled for some distance and it was country that I had never visited before. 15. The road we travelled on was bitumen and I believe that we turned off that road onto a dirt road to our right. I did not know the name of the road or where we were. I do not know how far we travelled down that road before we reached the camp. The camp was off to the left of this road and there were a number of tents set up and people about." Mr Morrissey also agreed that when he, the appellant and Mr Bridge had left the campsite, they rode "up a small track that leads onto the road and ... turned right to ride up the road we had come along". 43The appellant submits that in the face of this evidence the primary judge's observation at [153] was in error. He says that the primary judge also erred in addressing whether, when using the road on which the accident was alleged to have occurred, the appellant and his companions did so as trespassers: at [153], [154], [156]. The appellant says that s 33(3A) of the MAC Act was not relevant to his claim because he does not allege that the accident happened on a "road related area" as defined in the Vehicle Registration Act. 44Even if each of these submissions is accepted, it does not follow that the primary judge erred in rejecting the appellant's alternative argument. Ultimately that argument depends upon the acceptance of the appellant's evidence that the photographs showed the location of the accident and the evidence of Mr Morrissey that the accident happened on the only road providing access to the campsite. The primary judge did not accept the appellant's evidence as to what Exhibits A and B showed. He found that all they showed was "a short stretch of a rough road in the country", without establishing any connection between that road and the accident: at [155]. That conclusion was consistent with his Honour not having accepted that evidence because it was not corroborated by any reliable, independent source. As Mr Russell SC for the appellant candidly and properly conceded, the photographs could not assist the Court in answering the question whether the road they showed was "open to or used by the public". 45For the same reason, the primary judge was justified in not accepting Mr Morrissey's evidence as to the accident occurring on the only road which provided access to the campsite. That evidence also was not corroborated by any reliable, independent source. As his Honour observed (at [152]) when addressing this alternative argument, "the known facts all emanate from the plaintiff or Mr Morrissey, both of whom I have found to be unreliable witnesses". 46The primary judge is not shown to have erred in not being satisfied that the accident had occurred on a "road". He therefore did not err in dismissing the appellant's claim. It also follows that the appeal should be dismissed. Although that conclusion makes it unnecessary to address the other issues in the appeal, I will do so briefly.

Did the primary judge err in finding that Mr Morrissey was negligent? 47On the basis of the appellant's early report of the involvement of another rider to Dr Viglione (see [11] above), the primary judge was satisfied that another rider was involved in the accident. He was also satisfied that Mr Morrissey was that rider. He considered that once the original lie had been exposed "there was no reason for Mr Morrissey to become involved if he had not been the offending rider": at [124]. 48That finding of involvement was not a finding of negligence. The primary judge's reasons for the finding of negligence were: "[160] Having accepted that the plaintiff was injured in an incident involving Mr Morrissey I think I can go a step further and say that Mr Morrissey was the cause of the plaintiff taking the sudden action leading to his downfall. Mr Morrissey was an inexperienced rider on an unfamiliar motorcycle on very uncertain terrain. In addition he had consumed enough alcohol to make him fearful of prosecution (T 200.6). I am satisfied that he found difficulties in negotiating a bend and in his efforts to get around the corner he cut off the plaintiff. I am satisfied he was negligent and that his negligence caused the plaintiff to take the action that led to his injury. [161] I think Mr Morrissey's negligence is obvious in particular when based on his version of the accident set out in paragraph 18 of his statement." 49The relevant paragraphs of Mr Morrissey's statement are set out in [16] above. 50The Nominal Defendant challenges the findings at [124], [160] and [161], and in particular the finding of negligence. It says that those findings are based on the evidence of the appellant and Mr Morrissey and that, consistently with his earlier conclusions as to the reliability of their evidence, that evidence should not have been accepted because it was not corroborated by other reliable evidence. The Nominal Defendant also refers to the earlier and different versions given by those witnesses and the differences in their final versions of the relevant events. In response the appellant points to the primary judge's observation at [159] that the fact that the accident occurred as a result of some manoeuvre performed by Mr Morrissey was consistent in all of the versions which followed the disclosure of Mr Morrissey's identity. The appellant also argues that the primary judge was justified in proceeding on the basis that, once that lie had been exposed, there was no reason for Mr Morrissey to continue to say that he was involved if he had not been the offending rider. 51Although some reliance may be placed on the early report to Dr Viglione of the involvement of another rider, the terms of that report did not establish that involvement to have been negligent. The primary judge's conclusion as to negligence depends upon his acceptance of the evidence of the appellant and Mr Morrissey which is not corroborated by other reliable evidence. In the absence of such evidence, the primary judge erred in not giving effect to his earlier conclusions. The position remains that the primary judge's acceptance of their evidence to resolve this issue was inconsistent with his earlier findings, which are not challenged on appeal. For that reason alone those findings cannot stand. 52There are other difficulties with the primary judge's reliance upon Mr Morrissey's evidence. Although the primary judge, at [161], refers to Mr Morrissey's version of the accident as set out in paragraph 18 of his statement dated 15 June 2010, the evidence of his conduct is set out in paragraph 17 of that statement. That conduct involved overtaking the appellant on the left side, which was the outside of the corner, and not travelling at an excessive speed. That version makes no reference to, or concession about, having applied the brakes and skidded in front of the appellant. Considered alone, it does not necessarily bespeak negligence. In his oral evidence Mr Morrissey agreed that he had "hit the back brakes" and that his back wheel locked up. He did not say that he skidded or did so in front of the appellant. The primary judge (at [161]) refers to paragraph 18 of that statement and to Mr Bridge's observation that Mr Morrissey "cut [the appellant] off". It does not follow from that paragraph that Mr Morrissey agreed with Mr Bridge's observation. 53Even accepting Mr Morrissey's oral evidence, it was not consistent with the appellant's version of events in two significant respects. The appellant maintained that Mr Morrissey overtook him on the right-hand side and that the bend in the road was to the left. Mr Morrissey could not recall whether the bend in the road was to the right or left and in his most recent statement had said that he overtook on the left. The second was that the appellant's version included that when Mr Morrissey applied his brakes he skidded out so that the length of his bike blocked the appellant's path. Mr Morrissey's version made no such concession. 54The presence of these difficulties removes any suggestion that the issue of negligence was not controversial, even on a consideration only of the evidence of the appellant and Mr Morrissey. 55For these reasons, the Nominal Defendant's contention should be upheld. The absence of proof of fault on the part of Mr Morrissey provided an independent basis on which the primary judge should have dismissed the appellant's claim.

Did the primary judge err in finding contributory negligence or in apportioning 50 per cent of the responsibility for the accident to the appellant? 56It is neither necessary nor appropriate to deal with this question. It only arises if there is a finding of negligence on the part of Mr Morrissey. For the reasons I have given the primary judge erred in being satisfied, on the basis of the evidence of the appellant and Mr Morrissey, that negligence was established. That finding could not be made in the face of his Honour's conclusions as to the reliability of their evidence. Those conclusions are not challenged and also lead to the result that the Court could not be satisfied that there was contributory negligence on the part of the appellant. 57On the hypothesis that this question arises for determination, the Court would have to assume in addressing it that the primary judge's conclusions as to the reliability of the evidence of Mr Morrissey and the appellant are to be disregarded. It would be necessary to address the underlying issues, the resolution of which depends upon an evaluation of the credit and reliability of the two relevant witnesses. This Court is not in a position to undertake that task. For that reason it is not appropriate to address this question.

Conclusion 58The appeal should be dismissed and the appellant ordered to pay the costs of the first respondent. There should be no order as to the costs of the second respondent. 59LEEMING JA: I agree with the reasons of Meagher JA and the orders he proposes. 60SACKVILLE AJA: I agree with the orders proposed by Meagher JA and with his Honour's reasons.

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