Rodney William Bateman v The Nominal Defendant

The Circumstances in which the Plaintiff was Injured 6The intersection of Avoca and Stanley Streets Randwick is demonstrated with clarity in the three aerial photographs dated 14 January 2009, 15 January 2009 and 31 January 2009 which comprise Exhibit A. It was not in issue that the intersection and its surrounds as shown in those photographs had not changed as at 7 February 2009. 7Avoca Street runs in a generally north-south direction and the plaintiff was travelling north as he approached the T-intersection of Stanley Street. Beyond that intersection and travelling in a northerly direction, Avoca Street curves to the left and descends downhill. Just to the south of the intersection of Stanley Street, there were two concrete structures placed on the roadway on Avoca Street. They were less than two car lengths to the south of the commencement of the intersection with Stanley Street. One was a rectangular shaped concrete median strip in the middle of Avoca Street, on either side of which there appeared to be a solid, white painted line indicating the centre of the roadway. Heading north from the median strip, that line finished at the commencement of the intersection with Stanley Street, but further to the north, it recommenced beyond that intersection. 8The second structure was a concrete structure abutting the western gutter of Avoca Street and proceeding out into the street, leaving sufficient room for one lane of traffic to pass between it and the median strip. It was of concrete construction, of low height and was bare of any chevron or sign drawing road users' attention to it. It was referred to during the proceedings as a "traffic calming device". In his evidence in chief, the plaintiff identified the structure on the aerial photograph dated 31 January 2009 (Exhibit A) by circling it with a pink highlighter. 9From a point just south of the traffic calming device to a point approximately two car lengths north of the intersection of Stanley Street, there is in the northbound carriageway of Avoca Street a zig-zag white, painted line. No submission was made by either party that that line was in any way relevant to any issue to be determined by me in the proceedings. 10The plaintiff's case was that as he approached the intersection of Stanley Street at a point just south of the traffic calming device, he observed two vehicles travelling in a southbound direction in the intersection. 11The plaintiff observed the first of those vehicles to commence to turn into Stanley Street when it stopped momentarily in the centre of the road. After stopping, the vehicle then moved forward a couple of feet beyond the centre of the road and as he observed that movement, the plaintiff, who was travelling at 50 kph, took evasive action and swung his motorcycle to the left so as to avoid colliding with the car. By veering to the left the motorcycle came into contact with the concrete traffic calming device which caused the plaintiff to be thrown off the bike, whereupon he was thrown heavily onto Avoca Street and proceeded to slide in front of the first vehicle and came to rest beneath the second vehicle, which was driven by Ms Alvarez-Place.

The Evidence 12The plaintiff was born on 24 February 1949 and was 59 years of age at the time of the incident. He had grown up in the local area and was, at the time of the incident, employed by Randwick Council as a driver of a street-sweeping vehicle. He had commenced riding motorcycles in 1962 and was an experienced rider. He was very familiar with Avoca Street, and had been, for a period of two years, living on Avoca Street and travelled regularly along it. 13On 7 February 2009 the plaintiff had finished work at 8.30am and just before 2pm left his home on Avoca Street to travel to Observatory Hill to attend a wedding. As he approached the intersection of Stanley Street he gave evidence that he noticed two cars "coming up the hill", meaning, travelling in a southerly direction. Both cars were still moving. As he approached the intersection, his evidence was as follows: "Q: What did you see? A: It went to turn into Stanley Street. Q: Stopping there. When you say, 'went to turn into Stanley Street,' can you tell his Honour what you actually saw the car doing? A: It turned from Avoca to - in the direction of Stanley. It propped. Q: When you use the expression propped, what do you mean? A: Like, braked and stopped momentarily. Q: Did it come to a complete stop or not? A: Stopped momentarily. Q: Did it come to a complete stop or not? A: Stopped momentarily. Q: Just stopping there. When the car stopped momentarily, as you've just described, in what direction was it facing? Was it straight down Avoca Street? A: No, no. It was facing towards Stanley Street. Q: If you imagine a line running down the centre of Avoca Street, can you tell his Honour when the car stopped momentarily, where it was in relation to that imaginary centre line? A: It would have been on the centre of the road. Q: What part of the car on the centre of the road? A: Front of the car." 14The plaintiff was then asked: "Q: You've said that the front of the car was on the centre line? A: Yes. Q: Can you tell his Honour what part of the front of the car was on the centre Line? A: It would have been the - probably right on the wheels. Q: Which wheel or wheels? A: The right-hand side driver's wheel would have been closer to the island - the centre of the road, because it was turning into the - Stanley. Q: Where were you in relation to the Stanley Street intersection when you observed that car to stop momentarily as you have described? A: I had just left Frenchman's Road at the lights. Frenchman's and Avoca and was almost upon Stanley Street. Q: What if anything did you observe after the leading car had stopped momentarily? What did you observe about that car? A: It moved forward another couple of feet. It had gone to move in the direction it was going and then it stopped again. Q: Did you do anything when you observed it to move forward another couple of feet? A: Yeah, I took evasive action, swung the bike to the left because to me I looked like I was going to hit the car square on. Q: But you said it stopped again? A: Yeah. Q: Can you tell his Honour where the car was in relation to the imaginary centre line and when it stopped again? A: Yeah, it had come a couple of feet over the centreline as if to continue its way into Stanley Street and obviously noticed me and then propped very sharply, braked very sharply and-- Q: I am sorry, had you completed your answer? A: Yeah, but it all happened as we were about to pass each other and so there wasn't a real lot of time involved. Q: You said you took evasive action? A: Yes. Q: When you saw the car move again? A: Yep. Q: What was that evasive action? A: Veering to the left. Q: Yes, and where did that take your motorcycle? A: Straight into the island. The little concrete island." 15The plaintiff gave unchallenged evidence that he was travelling at approximately 50 kph and that after the front wheel of his motorcycle hit the traffic calming device, the front of the bike shot up and threw him into the air. He was able to recall that he saw a woman in the unidentified vehicle, but his next recollection was at the hospital. 16In cross-examination the plaintiff made appropriate concessions as to a number of safety aspects involved in riding a motorcycle. He conceded that when riding his motorcycle he had always been careful to look around to see whether there was any obstacles or potential hazards that may cause his bike to roll over and of the need to look ahead for hazards on the roadway, including potholes, median strips or traffic calming devices. 17The plaintiff also made appropriate concessions that he was quite aware of the fact that there was a traffic calming device on the roadway in Avoca Street just south of the intersection with Stanley Street before this incident. He conceded that he both knew it was there, and that if he veered into it that he might come off his bike. 18It was put to the plaintiff that there were inconsistencies between the evidence that he gave in chief and the statement that he had made to the police, the contents of which was recorded in Exhibit 2, being the New South Wales Police Force COPS entry. That entry is as follows (omitting the plaintiff's details): "Q: Are you the owner of vehicle XZQ17? A: Yep Q: Were you driving vehicle XZQ17 on Saturday 7th February 2009? Q: Can you tell me what happened? A: About 1.50pm on that date I was travelling north of Avoca Street, near Stanley St, near the entrance to the jewish school. Vehicle BD157B a white BMW was travelling south along Avoca St. A car was trying to turn right onto Stanley St, another car was behind it. The car in front rolled forward a couple of feet. I veered to the left in case she turned I was watching her. To the left of the street was a concrete barrier, as I was watching her I hit the concrete barrier. I sustained a broken wrist, ten broken ribs, a couple of broken fingers, a punctioned lung and torn aorta. Q: Were there any signs marking the concrete barrier? A: No. They put witches hats and signs up the next day. Q: Did you have any alcohol that day? A: No. Q: Were you wearing a helmet? A: Yes a half helmet Q: Were you taken by ambulance to hospital. A: Yes." 19The defendant's case was put in cross-examination to the plaintiff as follows: "Q: What you said today, Mr Bateman, suggests that the car, what Mr Toomey called the front car or the first car? A: Yeah. Q: It was heading in a southerly direction, in other words, coming the opposite direction to you. It never actually turned across your path, did it? A: Yeah, it was turning into Stanley Street across my path. Q: Well it moved, as I understood your evidence today, it moved a couple of feet across what might be called the imaginary centre line and then it stopped? A: The second time. Q: It stopped initially on the correct side of the roadway, if we can put it that way, with its wheels on the imaginary centre line? A: The first time, yes. Q: Then as I understood your evidence, you said that after it had done that, the car moved a couple of feet in the direction it was going and then it stopped again? A: Yeah. Q: So that when you say it moved a couple of feet in the direction it was going, you are saying in the direction of Stanley Street? A: Yes. Q: So it moved a couple of feet onto your side of the centre line, is that so? A: That's right. Q: It didn't actually cross your path? A: No. Q: It was, as you recall it, commencing to make a movement which suggested a turn? A: Yes, suggested it was going to continue into Stanley. Q: But then it stopped? A: Yeah. Q: It never crossed your path? A: No. Q: After that point, did it? A: No." 20It was put to the plaintiff that if the car was a couple of feet across the imaginary centre line, there would be room for him on a motorcycle to go past it, and the plaintiff conceded that. Whilst he was asked whether the unidentified car in fact remained at all times on its side of the carriageway, the plaintiff at no time acceded to that proposition and it was not positively asserted by defendant's counsel to be the fact. 21On 27 February 2009 the plaintiff gave a statement to Police in the presence of his daughter. The Police Officer who took the statement, Constable Welsh, was called to give evidence in the defendant's case. She had been unable to locate the notebook in which she recorded the plaintiff's statement, but had, sometime after she had taken the statement, transcribed it onto the Police computer records. That statement is recorded in paragraph 18 above. The inconsistency between that statement and the plaintiff's evidence, as outlined in paragraphs 13 and 14 above, was that the Police statement did not record anything about the unidentified vehicle crossing the centre line and then propping in the way the plaintiff had described in his evidence in chief. The plaintiff's response to that was: "No, I told them how it was." The plaintiff was then asked: "Q: In fact, could it be that the car coming the other way didn't cross the centre line but just moved a couple of feet forward rather than across Avoca Road? A: No." 22It was also put to the plaintiff that he had told his daughter, Tracey Vegelien, about how the accident happened, but did not say anything to her about the unidentified vehicle crossing the centre line. The plaintiff's response was that he thought he did say it. 23It was further put to the plaintiff that he was on notice of a potential hazard when he saw the unidentified vehicle stop, intending to make a right hand turn. He gave the following evidence: "Q: Is it in fact the case, Mr Bateman, that you were concentrating on whether that car may or may not turn and that led you to not appreciate that you were veering into the traffic control device? A: No, the car's second movement made me believe that it was going to cross my path. Q: Do you understand the proposition I'm putting to you that the question I'm asking you is whether in fact there was no second movement, you were being cautionary, and in that process you didn't realise that you were going to run into the traffic calming island? A: No, to me it looked like the car was going to pull across in front of me. Q: Well it may have looked that way, Mr Bateman, what I'm asking you is if in fact there had been no movement across the roadway to make that more than a possibility? A: No, it had moved." 24The plaintiff estimated that the distance by which the car rolled forward was about a metre. The plaintiff was adamant that the vehicle moved a couple of feet over the centre line and was not moved on that evidence. The plaintiff agreed that it took very little time for the vehicle to move a couple of feet and when put to him that he had the option to stop his motorcycle he said: "A: No. I didn't have time. Q: Well, she had stopped. So she wasn't moving across your path? A: She crossed onto the other side of the road." 25The defendant put two propositions, namely, first that the vehicle did not move and secondly, that if it did move, it didn't move across the centre line and the plaintiff rejected both those propositions. 26As to the traffic calming device, the plaintiff gave the following evidence: "Q: You knew that there was a traffic calming device, I used the word island, but calming device, to your left, in the direction in which you veered? A: Yep. Q: You knew that if you veered into it, there was a risk that you would come off your bike? A: Yeah. Q: If you were doing 50kph, and the car had moved a couple feet, at least five car lengths away, can I suggest to you Mr Bateman, that one of the things you could have done, is simply apply your brakes and slow down? A: No. 27In re-examination the plaintiff tendered a statement he made to an investigator employed by the defendant in November 2009 pursuant to s 108 (3) of the Evidence Act. That statement was admitted without objection and became Exhibit B. In that statement, the plaintiff gave the following version of events as he approached Stanley Street along Avoca Street, travelling in a northerly direction: "26. As I continued approaching the intersection I was about a car length from the island when I saw her car move over the centre line about one metre. She then stopped suddenly. 27. As an experienced motorcycle rider, you always have to be aware of other traffic. I immediately made the decision a collision was imminent. I thought she was going to continue to turn into Stanley Street so I veered to the left to avoid a head-on crash. 28. As soon as I veered to the left, I instantly felt the front of the bike lift up, hit the kerb and it bounced over the island. The back wheel then hit the island and I was thrown from the bike. The bike went to the left and I went straight on. The impact was heavy." 28Constable Welsh took a statement from the driver of the vehicle that was stopped behind the unidentified vehicle, Ms Emma Alvarez-Place, (Exhibit 1). That statement included the following: "I was travelling in a southly (sic) direction along Avoca Street Randwick when the car in front had stopped to turn right onto Stanley Street. We were stopped waiting behind when a man on a motorbike travelling in the opposite direction lost control of his bike. He then flew off the bike towards our side of the road and the bike went towards Stanley Street. He hit the road between my car and the car in front. He slid along the road under my bumper. ..." 29Following the incident Constable Welsh created a computer COPS entry and included a diagram of the scene which became Exhibit 3 in the proceedings. That exhibit showed the unidentified vehicle in a line of intended travel indicated by arrows. She was asked about that as follows: "Q: May we take it from your line with arrows on it that emanates in the front of that leading vehicle that you were told that that car had turned right into Stanley Street? A: After the accident had occurred, yes. Q: Who told you that? A: Emma and a few of the other witnesses have been told by her that it - that had occurred. Q: That the car had in fact turned after the accident right into Stanley Street? A: Yeah, they just said it disappeared, turned - and turned right. That's all we got from them. 30The defendant also relied on the statement made by Emma Alvarez-Place (Exhibit 1). She was not available for crossexamination being overseas and an attempt was made by the solicitors for the defendant to obtain a further statement from her. Having spoken to the solicitors by phone, Ms Alvarez-Place then communicated by email that she was not comfortable signing a further statement and advised those solicitors that they should use her original Police statement. The trail of e-mail communication and the further draft statement taken from Ms Alvarez-Place became Exhibit 4 in the proceedings without objection. In the unsigned further statement, Ms Alvarez-Place stated as follows: "5. Thinking back, I am now not sure whether it was the car in front which was turning. I think it might have been the car in front of the car in front of me which was turning right. However, I am not sure about this. The vehicle in front of me had its right indicator on. 6. I was travelling straight ahead on Avoca Street. I was not turning into Stanley Street. My vehicle was definitely stationary because, if not, I think the man would have gone straight through my windscreen. 7. I have been waiting behind the car turning for a short period of time. ..." 31Both the statement given by Ms Alvarez-Place to the Police (Exhibit 1) and her unexecuted further statement (Exhibit 4) were untested by crossexamination and must be approached with some caution. 32The other relevant evidence I have taken into account is the following crossexamination of the plaintiff: "Q: Did you tell your daughter that as you were preparing for the car to turn in front of you, you didn't see the island on the road as the afternoon sun had cast a shadow over the island and there was no sign? A: Yes."

Consideration 33On the basis of the evidence referred to above I make the following findings of fact: (1) The plaintiff was riding his motorcycle along Avoca Street Randwick prior to the incident at 50 kph. (2) The plaintiff was an experienced motorcycle rider who was aware of the obligation upon him to watch out for hazards on the roadway, given the risk of coming off his bike in the event of collision with any such hazard. (3) The plaintiff was familiar with Avoca Street Randwick in the area adjacent to its intersection with Stanley Street. He also was aware of the presence of a "traffic calming device" to the south of that intersection comprising a concrete pad emanating from the gutter on the western side of the street into the carriageway for vehicles travelling north. (4) I find there was a concrete median strip constructed in the centre of the road immediately adjacent to it, allowing room for one lane of traffic heading north on Avoca Street. (5) I find that the unidentified vehicle travelling in a southerly direction stopped in the intersection of Stanley Street and Avoca Street with its wheels over the centre of the roadway, which was not, at that point, defined by a centre line. (6) I find that as the plaintiff approached the intersection, heading in a northerly direction, the unidentified vehicle moved from that position, across the centre of the road in the course of turning right into Stanley Street approximately one metre and then stopped suddenly. Inferentially, she did so because she only then saw the plaintiff heading north into the intersection. (7) I find that the plaintiff was a distance of no more than five car lengths from the centre of the intersection when the unidentified vehicle moved into the carriageway for northbound traffic. (8) I find that the plaintiff believed when he observed the vehicle to move into that carriageway that if he continued the course he was travelling, his motorcycle would come into collision head on with the unidentified vehicle. (9) I find that the plaintiff took evasive action in an attempt to avoid such a collision by veering his motorcycle to the left and came into collision with the edge of the concrete structure on the left hand side of the road. (10) I find that that structure was in shadow at the time and was not marked by a chevron or other sign. (11) I find that after colliding with the concrete structure the plaintiff was thrown off his motorcycle into the air, and landed heavily on the roadway, skidded in front of the unidentified motor vehicle and ended up underneath the front part of the motor vehicle driven by Ms Alvarez-Place. (12) I find that the driver of the unidentified motor vehicle, a female wearing large glasses, then proceeded to turn right into Stanley Street and left the scene of the incident.

Defendant's Submissions 34The defendant submitted there were three possible scenarios as to how the accident occurred. They were: (1) The unidentified vehicle stopped to make right hand turn into Stanley Street and did not move prior to the plaintiff striking the concrete island. (2) The unidentified vehicle stopped to make a right hand turn into Stanley Street and rolled forward "a couple of feet" and then stopped a second time, but did not cross the (imaginary) centre line of Avoca Street. (3) The unidentified vehicle stopped to make a right hand turn into Stanley Street and rolled forward "a couple of feet" in the process of crossing the imaginary centre line of Avoca Street. This "scenario" reflected the plaintiff's case. 35The defendant submitted that scenario (3) was inherently unlikely and that scenario (1), or if not, then scenario (2), was more probable. That submission was based on the description given by Ms Alvarez-Place contained in the Police notebook, Exhibit 1. Further, the defendant relied on the plaintiff's statement made to Police three weeks after the accident, which is contained in Exhibit 2. In that statement the defendant submits that the plaintiff specifically referred to the unidentified vehicle rolling forward, which the defendant suggested meant in a southerly direction, not west into Stanley Street. Further, the plaintiff made no mention in that statement to the vehicle crossing the centre line and thirdly, the plaintiff said he was watching the unidentified vehicle "in case she turned". 36The defendant submitted that the failure by the plaintiff to call his daughter, Ms Vegelien, as to his contemporaneous account of events to her, gave rise to an inference pursuant to Jones v Dunkel (1959) 101 CLR 298 that her evidence would not have assisted his case. 37The defendant therefore submits that on scenarios (1) and (2), outlined above, there could be no negligence by the driver of the unidentified vehicle. Further, even on scenario (3), the plaintiff had failed to establish negligence. In support of that submission, the defendant submitted that there was realistically no imminent threat of collision in the circumstances. The plaintiff could have avoided collision with the unidentified vehicle simply by slowing his motorcycle, driving it around her, stopping his motorcycle, or indeed, by just proceeding along Avoca Street. 38Relying on Imbree v McNeilly (2008) 236 CLR 510, the defendant submitted that the driver of a car has a duty to take reasonable care to avoid injury to others, that the actions of the driver of the unidentified vehicle here did not amount to a breach of her duty, and that the plaintiff's actions were an unreasonable, or at least unpredictable, response in the circumstances. The plaintiff's actions, it was submitted, in veering into the concrete island were unnecessary and would hardly be within the reasonable contemplation of the driver of the unidentified vehicle. 39Alternatively, the defendant submitted that each of those matters established significant contributory negligence on the part of the plaintiff. 40With respect to the unidentified vehicle leaving the scene, the defendant submitted that such flight was consistent with the driver of the vehicle having no "knowledge or belief that she was involved" in the plaintiff's injuries. In circumstances where the rider of the motorcycle hit the concrete island, came off his bike, landing heavily on the road and ended up behind her car, it was submitted that may have led the driver of the unidentified vehicle "legitimately to have considered she had no involvement in the circumstances of the accident". 41Further, the defendant submits that the "owner" of the uninsured vehicle (meaning driver) did not stop as there were other people assisting the plaintiff and on the defendant's case there was "no reason for her to stay". Thus, it was submitted it could not be said that the driver fled the scene and no inference arose as in Nominal Defendant v Puglisi (1984) 54 ALR 474. It was submitted that Puglisi was not authority for the proposition that leaving the scene gave rise to an inference of culpability in every case, otherwise it would apply to every case where an unidentified vehicle was involved.

Liability 42I do not accept the defendant's submissions with respect to the liability of the driver of the unidentified motor vehicle. That driver had a duty to take reasonable care for the safety of other road users, and to make a right hand turn only when it was safe to do so. Having regard to the findings of fact that I have made, the first two scenarios advocated by the defendant and referred to in paragraph 34 above, do not arise for consideration here. It is the third scenario that falls to be considered in the light of the factual findings outlined above. 43As the plaintiff approached the intersection of Stanley Street, he was travelling at a speed of 50kph, well within the speed lilmit of 60kph, and therefore covering just under 14 metres per second. He was an experienced motorcycle rider and aware generally of the movement of other road users, including the unidentified vehicle. He was a distance of approximately five car lengths from that vehicle when he observed it to proceed across the centre of the road into the carriageway in which he was travelling and he reacted reasonably by taking evasive action. Otherwise, he would have collided head-on with that vehicle, within a time of less than two seconds. 44The plaintiff had no time to consider options that were available to him. To his right was the concrete median strip in the middle of the road. I accept the plaintiff's evidence that he believed that if he continued he would collide with the vehicle. I have also found that the concrete structure on the western side of the north bound carriageway on Avoca Street was in shadow and was devoid of any chevron or sign indicating its presence. 45Having found that the plaintiff, when thrown off his motorcycle, travelled first in the air and then along Avoca Street in front of the unidentified vehicle, the driver of that vehicle, having stopped suddenly, must have been aware that her action in proceeding into the carriageway for north bound vehicles caused the plaintiff to take evasive action and fall from his motorcycle. 46I accept the plaintiff as a witness of truth who gave his evidence without embellishment. If anything, he tended towards understatement, and fairly conceded relevant matters as to his knowledge when put to him. 47I accept the sworn evidence of the plaintiff, and do not find that it is inconsistent with the brief version of events he gave to Police within three weeks of the accident at a time when he had suffered severe injuries and was heavily medicated. The unsworn and untested Police statement provided by Ms Alvarez-Place and her subsequent unsigned statement could not be preferred in any way to the plaintiff's evidence and do not, in any event, support a claim that the driver of the unidentified vehicle was not negligent. Further, the plaintiff's evidence is consistent with his November 2009 statement (Exhibit B), which he gave to an investigator employed by the defendant. 48I do not accept the defendant's submission that the failure by the plaintiff to call his daughter, Ms Vegelien, give rise to an inference that her evidence would not have assisted the plaintiff's case pursuant to Jones v Dunkel, supra. The gravamen of the submission is that, as the plaintiff's daughter attended the Police station with him for the purpose of the plaintiff providing a statement, if that statement did not contain relevant matters which the plaintiff had told to his daughter, then she should have been called to give evidence corroborating the plaintiff's evidence. This submission misconceives the application of Jones v Dunkel as explained by the Court of Appeal in Manly Council v Byrne & Anor [2004] NSWCA 123 per Campbell J (with whom Beazley JA and Pearlman AJA agreed) at paragraph [44] - [75]. For the reasons outlined by Campbell J, I am not prepared to draw any inference from the absence of the plaintiff's daughter from the witness box in this case. In considering all of the evidence in this case, there is more than sufficient evidence upon which the plaintiff has proved his case and the failure to call his daughter could not be viewed as something that would reduce the strength of that case (per Campbell J at [55]). 49I do not accept the defendant's submission that there was no imminent threat of collision in the circumstances confronting the plaintiff, and that he could have avoided collision with the unidentified vehicle simply by slowing his motorcycle, by driving it around her, by stopping his motorcycle or by just proceeding along Avoca Street. The plaintiff was faced with a dynamic situation where he was travelling within the speed limit and a short distance from the intersection. Had he not taken evasive action he believed that he would have collided head-on with the unidentified vehicle which had turned into his carriageway before it stopped. The defendant's reliance on Imbree v McNeilly, supra, is misplaced. That case concerned the standard of care owed by an inexperienced driver to a supervising passenger. The High Court held that the same standard of care owed by any other person driving a motor vehicle applied, namely, to take reasonable care to avoid injury to others, and was not qualified by the driver's inexperience or unlicensed status. That has no application here, nor does the defendant's submissions that the plaintiff's action in taking evasive action was unnecessary and not within the reasonable contemplation of the driver of the unidentified vehicle. 50I find that the fact that the driver of the unidentified vehicle left the scene of the accident gives rise to an inference in the circumstances of this case that she did so because of a consciousness of culpability for the plaintiff's injuries - see Nominal Defendant v Puglisi, supra. Having driven onto the incorrect side of the road in making a right hand turn against oncoming traffic and then stopped suddenly, the driver of the unidentified vehicle, having observed the plaintiff be thrown off his motorcycle and travel along the road in front of her vehicle, must have been aware that her careless driving had caused him to take evasive action and fall from his motorcycle (see also Guest v The Nominal Defendant [2006] NSWCA 77 at [98] and [138] per Ipp JA, (with whom Handley JA agreed). 51By turning into the path of the plaintiff's motorcycle, the driver of the unidentified vehicle breached her duty of care to the plaintiff and it was that breach of duty which caused him to take evasive action and thereby led to his injuries.

Contributory Negligence 52The defendant's case in contributory negligence was essentially that the plaintiff had overreacted in the manner in which he controlled his motorcycle to the presence of the unidentified vehicle on the roadway. 53The plaintiff relies on the judgment of Street CJ in Leishman v Thomas (1957) 75 WN (NSW) 173 at 175 where His Honour said: "This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking at all the surrounding circumstances and ascertaining whether the defendant may have behaved in such a fashion as a reasonably prudent man, in light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise." 54The plaintiff submits that that principle applies equally in considering whether the plaintiff contributed to his own injuries. 55That passage was referred to in the Court of Appeal's decision in Stuart v Walsh [2012] NSWCA 186 by Tobias AJA (with whom Bathurst CJ and Basten JA agreed) at paragraph [61] and had previously been approved in a number of cases referred to by Tobias AJA at [62]. The principle applies equally in considering contributory negligence by a plaintiff to the situation of considering primary negligence by a defendant. 56Here, the plaintiff found himself in a situation which was not of his making and was forced to react to a sudden, unexpected and unheralded scenario when the driver of the unidentified vehicle moved into his path a relatively short distance in front of him. The plaintiff did not have time for calm reflection, but took the only evasive action available to him to avoid colliding with that vehicle. In doing so, he came into collision with the concrete structure. If veering to the left, with the benefit of hindsight, was an error of judgment on the plaintiff's part, it was an error made in the "agony of the moment" in the sense referred to by Tobias AJA at [64]. He was required to make an instant decision and did so and I am unable to find that he acted unreasonably in any way. I find that he did not "overreact" to the situation that confronted him. 57There will therefore be no reduction to any judgment agreed between the parties as a result of any contributory negligence by the plaintiff.

Conclusion 58I therefore find that the driver of the unidentified motor vehicle was negligent in proceeding onto her incorrect side of the roadway in the course of making a right hand turn from Avoca Street into Stanley Street. The defendant's negligence was causative of the plaintiff's injuries. 59For the reasons outlined above, there will no reduction to the plaintiff's judgment as there was no contributory negligence by the plaintiff.

Orders 60I therefore order as follows: (1) Verdict for the Plaintiff against the Defendant in the sum of $380,000.00. (2) The Defendant to pay the Plaintiff's costs of the proceedings. (3) Liberty to the parties to apply in respect of costs on seven days notice. (4) Exhibits to be returned. 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: 27 September 2012