The plaintiff's statements, his credit and findings about the accident
82The plaintiff was extensively cross-examined on a number of statements, including claim forms, made or adopted by him.
83The first in time arises from Exhibit 9, the ambulance report. Under the section headed "Patient Incident History" is the following statement in quotation marks: "Pt states "that he was riding his bike at 50kph when he braked suddenly and went over the bars landing on his R shoulder/head"."
84The point made by the defendant was that the plaintiff's assertion makes no mention of another rider. The plaintiff responded that he was concerned with his injuries rather than the detail of the accident and in addition he had been administered morphine, which affected his capacity to accurately recall events. The history in the ambulance report does not state precisely when the plaintiff made his statement. It may have been made some time after the arrival of the ambulance. I also note that the plaintiff was first administered morphine at 6.45pm and then further doses were given at 6.52, 7.05 and 7.15pm.
85I think the circumstances of the taking of the plaintiff's statement squarely fall within the cautions stated by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2) and that I should exercise great caution in placing any weight upon their detail or accuracy.
86Where I do think the ambulance report is more relevant concerns the times of various events. The plaintiff consistently said that the accident occurred in daylight at about 4.30 to 5pm. He also said that the ambulance was called about 10 minutes following the accident. It is evident from Exhibit 9 that the ambulance was booked at 5.59pm. Consistent with the plaintiff's estimate of the time between the accident and the booking, the ambulance report estimates the time of the incident at 5.52pm.
87Exhibit 10 states that on 6 April 2007 the sun set in the Lithgow area at 5.51pm. It would seem, therefore, that the plaintiff's suggestion of the accident occurring in daylight is probably incorrect although I could not say that the plaintiff was deprived of visibility. There is some difference, in terms of light, between sunset and nightfall.
88The next record of something apparently said by the plaintiff is contained in Exhibit 12, the clinical record of the Emergency Department of Lithgow District Hospital. This document contains the following entry: "Braked suddenly at 50kph → over handlebars." Once again, I am reluctant to place any weight on this notation. By this time the plaintiff was well under the influence of the morphine and it is even possible that the history was simply obtained from the ambulance officer.
89I also do not form any adverse conclusion against the plaintiff from the entry: "Smells of ETOH". The plaintiff said that he had a can of bourbon and coke following the accident that may explain the entry. There is no other evidence on which I could conclude the plaintiff had been drinking, other than the small amount of beer referred to in Exhibit 13, prior to the accident. In addition there is the evidence that a police officer later told him that his blood alcohol test had produced a negative result.
90The next statement seems to be that given to the police officer (Exhibit 6). The plaintiff's recollection was that this occurred about six months after the accident but it seems clear from the first page of Exhibit 6 that the statement was given some time between 4 June 2007 and 18 July 2007.
91The relevant portion of the police statement is a little difficult to discern. Doing the best I can it seems to read:
"Riding bike on private property near a dam near Lithgow. It's about 15 minutes from (word unknown). 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."
92It was put to the plaintiff that the reference to him riding "with two other people" indicated that he was riding with them when the accident occurred. He rejected this interpretation and said that he meant that he had gone to the campsite with two friends who were also motorcycle riders. I find the plaintiff's interpretation hard to accept.
93The first claim form completed by the plaintiff is Exhibit 5. It is dated 20 September 2007. The second is Exhibit 13. When questioned about the claim forms the plaintiff conceded the presence of his signature but said he had never otherwise seen the documents before. He had simply signed what he was asked to sign. This evidence is somewhat surprising but possible having regard to the plaintiff's apparent lack of sophistication.
94Another possibility is that the plaintiff has simply forgotten the documents. In either event I am satisfied that their contents are a fair reflection of the plaintiff's instructions to the solicitor who was preparing the document.
95Paragraph 15 of the first claim form contains this description of the accident:
"I was riding my motorbike up a hill and I was overtaken by another rider and that rider stopped in front of me and left me with no room. I braked my bike slid out and hurt my right shoulder and my left wrist. I bounced along the ground 3 times and ended up on the end of the cliff."
96It is to be recalled that at this stage the identity of Mr Morrissey was said to be unknown. Putting aside this point the description is generally consistent with the plaintiff's description of the accident in his oral evidence except that he described Mr Morrissey's motorcycle as cutting across him but not stopping. When challenged about the use of the word "stopped", the plaintiff said it was the wrong word to use.
97Question 3 of the claim form asks for the "Place of the accident (streets and town or suburb)". The response is "Lithgow NSW". There is no mention of the Old Western Road.
98Question 12 asks whether any drugs or alcohol had been taken in the 12 hours before the accident. The answer given is "No". This is in contrast to the answer given to the same question in Exhibit 13 where it is stated "a mouthful of beer". Although there was some confusion about how the latter answer came to be given it seems to have been at the suggestion of the solicitor assisting the plaintiff with the statement.
99Exhibit 4 is said to be a statement taken on 2 April 2008. It is not, however, signed. The plaintiff generally agreed with its contents but identified various matters that he did not agree with. He made the point that the statement was made prior to him deciding to disclose Mr Morrissey's identification. He did agree with the manner in which the accident occurred as related in paragraph 41 of Exhibit 4, at least in respect of this portion:
"I went past the campsite by mistake and was negotiated the next bend when someone came up behind me and overtook me on a motor cycle and did not take the bend. He skidded straight in front of me and I hit my brakes and the bike was like I was on ice and the next thing I knew I was laying on the edge of the cliff looking back at my bike."
100In paragraph 49 of the statement the following is said:
"I would have first seen the other bike when it was around two metres in front of me. I heard it and then saw a flash. He came form behind me and the tried to over take on my right hand side and then he saw that there was an embankment in front of him and then he cut back in front of me as it was a left hand corner. It was when he cut in front of me I hit the brakes."
101The description just quoted in my view is similar to, and certainly consistent with, the description of the accident given by the plaintiff in his oral evidence. The contents of paragraph 50, however, are plainly dishonest.
102Exhibit 15 is another statement of the plaintiff but in this case is signed and although bearing the date on the first page of 2 April 2008 (like Exhibit 4) the signature seems to have been made on 30 April 2008. Significant changes from Exhibit 4 to Exhibit 15 seem to occur from paragraph 30 when Mr Morrissey (in the later document) is introduced as having accompanied the plaintiff to the campsite. In the earlier document Mr Morrissey is mentioned in paragraph 36 but only as one of the people who was at the campsite. The description of the accident is generally similar in each statement.
103The plaintiff was closely questioned about paragraph 61 of Exhibit 15. It was essentially suggested to him that his visit to the house was a fabrication. The plaintiff accepted that he did know how he could identify the other vehicle because he knew it had been ridden by Mr Morrissey. There was therefore no need for him to 'door knock' at any residence. Notwithstanding this the plaintiff was adamant that he had, in fact, visited a house to see if there were any witnesses.
104I find that evidence difficult to accept. In addition the plaintiff said he had visited the site to take photographs. He had said in his evidence in chief that the photographs, which are Exhibits A and B, were taken about a year after the accident. This is perhaps roughly consistent with his evidence in cross-examination. However, he also said that the photographs had been taken after 2008 when he was dealing with questions about surrounding houses (T 170.25). He then said he had taken photographs on a number of occasions. The clear impression I had was that the plaintiff was caught out in relation to the photographs and was making up evidence as he went.
105The plaintiff attended Macquarie Fields Police Station on 11 March 2008 in order to obtain an event number for the incident. This was presumably at the suggestion of his solicitor. The history recorded is as follows:
"About 5pm Friday 6/4/07 Maric was riding his motor cycle on an unknown rd, adjacent to Rydal Rd Lithgow. At the time there were another two cyclists riding with him. The Speed of all the cycles is unknown.
For unknown reasons one of the other cycles has allpied their brakes harshley, this cycle was travelling in front of Rider2. As a result Rider2 has been forced to also apply his brakes harshley. This action has caused rider2 to be thrown over the handle bars of his cycle, colliding heavily with the ground." (Exhibit 8)
106The above history is obviously a summary and I am reluctant to place much weight on the detail. However, I do think it significant that the history includes the statement that "there were another two cyclists riding with him". There are other important aspects of this document that I will return to below.
107The second claim form (Exhibit 8) was initially signed on 16 September 2009 and then resworn two days later, I assume because the Statutory Declaration added to the claim form was made on the latter date. This document introduces the identity of Mr Morrissey. There are other differences as well. For example, in relation to alcohol the plaintiff now says he had "a mouthful of beer" compared to no alcohol in the first claim form. He also says that the other driver had "a couple of beers". This is inconsistent with Mr Morrissey's evidence who said he had had at least six cans of beer on the trip from Sydney to Lithgow.
108The description of the accident is roughly the same as in the first claim form repeating the allegation that Mr Morrissey stopped in front of the plaintiff, which is contrary to his oral evidence.
109The place of the accident is repeated as "Lithgow NSW" but this time there is, under Question 7, a notation of the police report (Exhibit 8), which includes a reference to the Old Western Road.
110The final statement is dated 7 October 2009 and is contained in Exhibit 16. The plaintiff has signed this document.
111I particularly note the following parts of Exhibit 16:
(a)In paragraph 26 the plaintiff says: "I decided that I would take the bike out for a quick ride to look around. I put my riding gear on and set out for a ride by myself".
(b)In paragraph 28 the plaintiff says: "I headed up a hill and rode past the campsite and a few moments later another rider, Geoff Morrissey, came flying past me at approximately 80 km per hour. When Geoffrey past me he was confronted with a bend in the road that he was unable to negotiate at that speed. He applied the brakes and skidded out in front of me so that the length of his bike blocked my path for a moment before he continued on his way. I was directly behind him in the moment that he skidded out so I was left with nowhere to go. In an attempt to avoid collision, I applied my front breaks with some force and my front wheel slipped out. I felt the left side of my bike going down and the bike slipped clear out from under me. The bike dug into the dirt and when I let go of the handlebars I impacted with the ground and continued forward to slide a further 10 meters or thereabouts."
(c)In paragraph 30 the plaintiff says that he hobbled back to the campsite and "sent my friend Shane Bridge to get my bike". Mr Morrissey's evidence had been that Mr Bridge had been riding with him and the plaintiff and had attended to the plaintiff at the scene of the accident.
(d)In paragraph 32 the plaintiff says that he was given 60ml of morphine. The ambulance report refers to only 20mg of morphine.
(e)In paragraph 36 the plaintiff gives his reasons for not disclosing the identity of Mr Morrissey. These are generally consistent with the plaintiff's oral evidence on the matter.
112I noted earlier the plaintiff's evidence about maintaining the 'lie' if he had not accidentally told Mr Frame about Mr Morrissey. In defence of his dishonest statements, and what could be made of the likely path but for the accidental slip-up, the plaintiff said that he had never lied to a court or to the police. In respect of the latter this is patently incorrect because it is evident from Exhibit 8 that the plaintiff told Sergeant Sorrenson at Macquarie Fields Police Station on 11 March 2008 that the identity of the rider at fault was unknown (see page 3 of Exhibit 8). If I am right in this conclusion it also follows that the plaintiff was not frank before the court.
113I now come to what I consider the difficult task of deciding where and how the accident occurred. In doing so I am mindful that the onus is on the plaintiff to prove his case. He relies on his own evidence and that of Mr Morrissey, both of whom have, by their own admission, lied in statements made to solicitors, the NRMA, insurance investigators and, in the case of the plaintiff, to the police. In addition, as I have mentioned above, there is the inference that the plaintiff would have continued lying had there not been the accidental disclosure to Mr Frame.
114I note here that the parties agreed that they would not submit, against each other, that I should draw inferences arising from their not calling other potentially available witnesses, in particular Mr Shane Bridge and Mr Terrence Hanks. Although theoretically not binding upon me I think it appropriate to respect the agreement. Accordingly I do not draw any inference against either the plaintiff or the Nominal Defendant for failing to call any other witness present at the scene of the accident.
115The 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.
116In examining the plaintiff's credit in relation to its effect on my findings on liability I think I am entitled to take into account evidence that he gave about his background generally and his work history. The clear impression created by the plaintiff in his examination in chief is that despite some minor injuries he was, before the accident, well and working regularly and unimpeded. The injuries that had occurred to his knees and leg were of little significance in affecting his capacity to work. He was a happy man whose relationship with his de facto wife was severely affected by the accident.
117The final picture is very different. The plaintiff in the two years prior to the accident had worked very little and his relationship with Ms Hogg had been tumultuous for many years. 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.
118Taking 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.
119In making my assessment of the plaintiff (and the same applies to Mr Morrissey) I have not taken into account his demeanour in the witness box. As a general proposition I do not think it appropriate, other than in exceptional circumstances, to base any findings upon how a person presents in the very unfamiliar and daunting position of being a witness subjected to cross-examination.
120I have reached essentially the same conclusion about Mr Morrissey, although my conclusion is more concentrated on his reliability than his credit.
121As 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.
122I am however satisfied that I do not believe that any conspiracy to seek financial benefit was ever entered into between Mr Morrissey and the plaintiff. I accept Mr Morrissey's evidence that he did not wish his name to be disclosed because he feared the repercussions and I accept the plaintiff's evidence that he took his friend's interests into account in his initial reporting of the accident. I prefer Mr Morrissey's evidence that the idea for the subterfuge came from him and not the plaintiff. I think the plaintiff's assertion he was responsible was part of his effort, even if lacking in logic, to ameliorate the effects of his hiding the truth for so long and through so many documents and statements. I agree with Mr Marshall's assessment of the plaintiff and Mr Morrissey as both being unsophisticated.
123As already noted, the defendant accepts that the plaintiff was injured in an incident involving a motorcycle. The defendant submitted that the early histories are more consistent with the plaintiff coming off the motorcycle for an unknown reason. This arises from the contents of the ambulance report, the hospital records and the general unreliability of the plaintiff.
124I am satisfied that Mr Morrissey was involved in the accident. Dr Viglione takes an early report of the involvement of another rider and there is a consistency thereafter that the accident was caused by the intervention of a separate motorcyclist. I am also satisfied that Mr Morrissey was the other rider involved. 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.
125The first issue that needs to be decided is whether or not the plaintiff has established that the accident occurred on the Old Western Road as he alleges. The importance is that his entitlement to sue the Nominal Defendant is derived from Section 33 of the MACA. Under this section, in order for the Nominal Defendant to be an available defendant, the accident must have occurred on a "road" in New South Wales. "Road" is defined in Section 3. During the hearing the parties described this requirement as a necessity for the road to be a "public road".
126The plaintiff ran the hearing on the foundation that if he could establish that the accident occurred on the Old Western Road then he would have met the qualification entitling him to sue the Nominal Defendant. Section 33(3A) was not referred to until the very end of the case in circumstances to which I will return below. I wish however, to make it clear that the basis upon which the plaintiff pursued his case was that the accident had occurred on the Old Western Road.
127It was accepted that if he could not establish this fact, and therefore that the accident had occurred on a public road, then he could not succeed.
128Notwithstanding a last minute introduction of an alternate allegation the plaintiff did not abandon his assertion of where the accident had occurred. It is necessary to look in some detail at the elements that the plaintiff says make up the basis upon which I should find that the accident had occurred on the Old Western Road.
129As already mentioned the plaintiff in his evidence in chief, when asked the name of the road on which his accident had occurred, said: "I think it was Old something Road, Old Western Road, I didn't know at the time, I now know." (T 23.41).
130His evidence about how he now knows is central to the dispute. The defendant submitted that he had not established any credible basis for forming the conclusion that he now knew the name of the road.
131It was accepted by the plaintiff that he originally believed he was riding on private property.
132As stated above, sometime in June or July of 2007 Constable MacPherson visited the plaintiff. He took a statement which is in Exhibit 6. The statement is set out in full above, but for present purposes I note it commences "riding bike on private property near a dam near Lithgow".
133Under cross-examination about his interview with Constable MacPherson the plaintiff gave this evidence:
"Q. Well, part of your previous answer was that Constable MacPherson had told you that it wasn't an unknown road, is that not so?
A. That's true.
Q. When did he do that?
A. When I was speaking to him at my house, when he come to my house and told me that I was going to be charged with something if I was drunk or on drugs or anything like that, he come out to tell me that my tests were clear and I wasn't going to be charged with anything.
Q. That's when that statement was made wasn't it?
A. That's right.
Q. So, he then told you it wasn't an unknown road didn't he?
A. Exactly.
Q. So, why would you say
HIS HONOUR: Sorry, hang on, hang on.
MARSHALL: No, no, no.
HIS HONOUR: Wasn't a private road is what he said before, not an unknown road.
RENSHAW
Q. Well, what road did he tell you it was when he saw you?
A. He told me it was a public road, that's what he told me, he didn't tell me the name of the road, he told me it was a public road, and then we had that trouble trying to find the name of it. So, had to find the council, ring the council to find out the name of it.
Q. What you received a letter from the council did you?
A. Ask Debbie she done it." (T 91.17)
134As I read the above passage of evidence Constable MacPherson told the plaintiff that the road was a public road but he did not tell him the name of it. This was obtained from the Council by Ms Hogg. No letter was produced concerning the matter. Ms Hogg gave evidence. She was not asked any questions about contacting the Council.
135The next important passage of evidence is to be found commencing at page 146.8 of the transcript. The plaintiff was asked how he identified where the accident occurred. He replied: "Because I've been there before and I know where it is". When asked how he found out that it was a public road he said that he had not. He was "pretty sure Debbie did" and he added "the police told me so that was where I got it from". When once again asked the name of the road he said: "it's Old Western Road as far as I know".
136On further exploration by the cross-examiner this passage of evidence occurred:
'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.
Q. But you looked on the internet, you mean you looked on Google Earth did you?
A. I suppose so.
Q. But it didn't appear on Google Earth?
A. Well, I don't know where-" (T 146.36).
137His final position in the just quoted passage seems to be "and I don't know who advised me of the name of it".
138I will now return to Exhibit 8. The plaintiff attended Macquarie Fields Police Station on 11 March 2008. The exhibit was created on this date with additions made on later dates. The plaintiff submitted that Exhibit 8 is the substantial source of proof of the location of the accident. It was submitted that a reading of the document suggests that the "further inquiries" referred to on page 2 were conducted by the police. That is not my reading of the document. In my view, the further inquiries referred to are part of the history given by the plaintiff to Sergeant Sorenson when he attended the police station.
139It appears that on the same day Sergeant Sorenson has "ascertained" that Constable MacPherson was the officer originally involved but had taken the matter no further because "the collision was on private property". This contradicts the plaintiff's assertion made on page 91 of the transcript that Constable MacPherson had told him that it was a public road.
140The "Crash Summary" on page 5 of the document commences "About 5pm Friday 6 April 2007 the rider was riding his motorbike along an unknown road, but adjacent to Rydal Road, Lithgow". Notwithstanding this sentence, the next section of the document then lists the Old Western Road as the location of the incident.
141This identification of the road is somewhat confusing, firstly because it follows the statement about an unknown road but also because the listed characteristics of the accident site include that the road was "straight", the gradient "level" and the surface was "sealed". All of these attributes are absent (almost the very opposite) of the road to be found in Exhibits A and B.
142The plaintiff, as I have already said, stated that he knew where the accident had occurred. He had returned there to take photographs. 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.
143The description of the route given by Mr Morrissey in paragraph 16 of his statement (Exhibit 18) is too confusing to be of any assistance, even putting aside Mr Morrissey's general unreliability.
144Where useful evidence is absent it is necessary for me to base my decision on the evidence that is present. As stated in the High Court very recently in Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17:
"[165] Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles ..."
145The evidence that I have is no more than the plaintiff saying that he came to find out the name of the road and that it was a public road. Had the plaintiff been a witness whose credit had not been challenged, or had survived challenge, the situation may have been different. My already stated view of the plaintiff, however, is that his evidence must be treated with caution and not accepted unless corroborated by a reliable, independent source.
146The 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.
147It follows that the plaintiff has not established his entitlement to sue the Nominal Defendant. A verdict for the defendant must follow.
148The topic of the identification of the location of the accident formed a significant part of submissions. In the light of the discussion, but at the very end of submissions, learned senior counsel for the plaintiff sought to add an alternate argument, namely that it did not matter that the site of the accident had not been identified because all that was required was that he establish the accident had occurred on a road in New South Wales and did not fall within Section 33(3A) of the MACA. It was submitted that the plaintiff's presence on the road together with his companions, his previous visits and the presence of the other campers all led to an inference that he was not a trespasser on the road.
149When this submission was made it immediately seemed to me that this change of tack required an amendment to the pleadings (T 438.50). Mr Marshall said it did not and that it was open to him to raise the argument. I disagree, for the following reasons:
(a)The whole of the hearing was conducted on the basis that the accident had occurred on the Old Western Road.
(b)The location of the accident is a material fact that should have been pleaded. The entitlement to sue the Nominal Defendant is dependant on the accident occurring on a road within the parameters of Section 33.
150Notwithstanding my implicit invitation no application was made to amend the pleadings.
151Accordingly I do not think it is open to the plaintiff to run the alternative argument. In case I am wrong I think the end result would be the same. In my view the known facts of the area would not enable me to reach any conclusions about the land on which the road is situated. I do not think there are helpful (to the plaintiff) inferences available, but even if there are, there are also competing inferences against the plaintiff's case.
152In addition, besides Exhibits A and B, the known facts all emanate from the plaintiff or Mr Morrissey, both of whom I have found to be unreliable witnesses.
153In order to form a conclusion about the track, including whether it was open to the public or whether the plaintiff and his companions were trespassers, there would at least have to be some evidence of where the track was. There is no such evidence. The fact that the plaintiff and his friends were on the track does not necessarily mean they were not trespassers. The presence of a group of motorcyclists at a campsite is evidence of no more than that fact. If the evidence was that the access to the campsite was via the road on which the accident occurred the position might be different. That however is not the evidence.
154Section 33(3A) was included in the MACA following the decision of the New South Wales Court of Appeal in Ryan v Nominal Defendant (2005) 62 NSWLR 192. The very significant difference between the facts in that case and the present are that the track involved in Ryan was identified and could be assessed having regard to its usage by the public both on the day the plaintiff was injured and historically. In the present case, if the location of the accident is incapable of identification, then no conclusion can be drawn about the location and its usage.
155The only reliable conclusion I can draw from Exhibits A and B is that they depict a short stretch of a rough road in the country.
156Thus although I do not think the plaintiff is entitled to run the alternate argument alleging no more than that the site of the accident is a road somewhere in NSW, which is not caught by Section 33(3A), I am in any event satisfied that this argument would not assist the plaintiff.
157Having found that the defendant is entitled to a verdict in its favour it is not necessary for me to proceed any further; however, I am mindful of the possibility that I might be in error and so will continue on that assumption.
158The next issue concerns the manner in which the accident occurred.
159I am satisfied that the accident occurred as a result of some manoeuvre being performed by Mr Morrissey which caused the plaintiff to take sudden action leading to his being thrown forward over the handlebars of his motorcycle. I think these facts are consistent with all of the versions, both oral and written, which follow the disclosure of Mr Morrissey's identity.
160Having 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.
161I 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 (Exhibit 18). The required elements of Section 5B of the CLA are all present especially when Mr Morrissey's inexperience and alcohol consumption are added to his version.
162I am not, however, satisfied, because I do not accept the plaintiff, that he set off alone when he left the camp. At the very least he was with Mr Bridge and probably also riding with Mr Morrissey. My decision is based on the following:
(a)The references in the statements concerning the departure from the camp.
(i)Exhibit 6: "I was riding with two other people".
(ii)Exhibit 8: "At the time there were another two cyclists riding with him."
(iii)Exhibit 17: "Stefan went off riding with a few of the other guys".
(iv)Exhibit 18: "We pulled up got the bikes out and before we set up camp we decided to go for a ride. There was myself, Stefan Maric and Shane Bridge and we rode off back towards the main road were we had just come from.....We rode up a small track that leads onto the road......The other two took off so I then drove up onto the road and headed in the same direction as them. I rode the bike up to the others...."
(v)Exhibit 18: "I came up behind them......I travelled up the road a bit further and I realised the other two were not with me."
(b)The logicality that persons who are going to enjoy a weekend trail biking together would ride together. In addition the plaintiff and his companions were joining a larger group of trail bike enthusiasts.
(c)The illogicality of the plaintiff's evidence. I specifically reject this passage in the plaintiff's evidence:
"Q. Well, when you go riding with a group of people?
A. Mm.
Q. Are there any rules, or you try to
A. Well, I don't ride with other people, so. I don't know what the rules are.
Q. Have you never ridden with anyone else?
A. I've never gone riding with anyone else, like a group like that, I'd take off on me own, and I don't follow anybody anywhere.
Q. So you don't know anything about trail bike riding?
A. How do you say that? I ride on my own. (T 98.1)
(d)The plaintiff's preparedness to lie if it suited his purpose. It is to be recalled that the plaintiff would have continued to not disclose Mr Morrissey's identity but for the accidental slip in the barrister's chambers.
(e)Mr Morrissey's oral evidence is at least consistent with the plaintiff riding off in Mr Bridge's company:
"A. From my recollection Shane Bridge went off took off on his bike at a similar time." (T 206.34).
163The next question is, what is the effect of my finding that the three riders were travelling together when Mr Morrissey performed his act of negligence. I think it establishes significant contributory negligence on the plaintiff's part, although not nearly to the extent advocated by the defendant (70-100%).
164The plaintiff acknowledged the danger of riding in company:
"Q. Do you agree, that if you are riding on a road like the road we're talking about here, and you've got, and you're riding with two other motor cycles, that might go in front of you, or might go behind you, or might overtake you, that that would be more dangerous than riding on your own. Do you agree with that?
A. Definitely." (T 101.31)
165Mr Morrissey's inexperience and his alcohol consumption must then be added in to the equation. Although the plaintiff said he did not know how much beer Mr Morrissey had consumed it is to be recalled that Mr Morrissey and Mr Bridge had purchased a carton of beer and that they had sat on a bench seat in the plaintiff's van (ie alongside him) while they were drinking. In my view the plaintiff would have had at least some idea of the amount of alcohol consumed by Mr Morrissey and Mr Bridge. Another factor is that the reason Mr Morrissey was concerned about the police being called is that he felt that he would have been riding the motorcycle over the legal alcohol limit.
166The plaintiff said Mr Morrissey was not totally inexperienced because he had been teaching Mr Morrissey how to ride (T 184.34). I prefer Mr Morrissey's assessment of his own experience.
167The three elements that I think, cumulatively, give rise to contributory negligence are therefore the following:
(a)Riding in company on the type of track in question.
(b)Riding with an inexperienced rider.
(c)Riding with an inexperienced rider who had also been consuming alcohol.
168The above three elements, which were all known to the plaintiff, combine to create a foreseeable risk of significant harm caused by either a collision or an action by the other rider causing an injury (as happened here), all of which might occur at a significant speed.
169I am satisfied that Mr Morrissey's manner of driving was influenced by his inexperience and consumption of alcohol so that the plaintiff's contributory negligence must be assessed in the light of him knowingly riding in the company of an inexperienced and alcohol affected second rider. Although it was Mr Morrissey's actions that led to the plaintiff coming off his motorcycle, the reasonable foreseeability of such an event, having regard to the plaintiff's knowledge of Mr Morrissey's inexperience and alcohol consumption, should be at least equal to that of Mr Morrissey. Accordingly, I find contributory negligence of 50%.