13 Mr Keramidas made an investigation which included an inspection of the site on 3 September 2003 and a report dated 15 March 2004. Upon the evidence it was reasonable for the Trial Judge to accept his expertise and to base findings upon his views; but there were some errors in the Trial Judge's consideration of and findings based on Mr Keramidas' evidence.
14 It should not be understood, notwithstanding Keramidas finding (4) that the Trial Judge accepted Mr Keramidas' evidence about damage to vehicles, that her Honour found or acted on the view that Ms Sharpe's motor bike travelled at an approach speed of 15 to 20 kmh. That is altogether inconsistent with the Trial Judge's own findings (5) and (7), in which Ms Sharpe accelerated, travelled at about 10 to 15 kmh, saw the bonnet of a car in front of her, she applied the brakes and they did not grip before the collision; it would be inconsistent with those findings that the motor bike ever reached an approach speed of 15 to 20 kmh.
15 Keramidas finding (6) says that at the time Mr Gordon started to move away from the point at which he had stopped his vehicle Ms Sharpe's motor bike was 11.3 to 15.1 m away and this is plainly inconsistent with the Trial Judge's own finding (1) that Ms Sharpe stopped her motor bike at the point on the footpath where the adjacent building extended out. That point was in the order of 10 m from the point of impact. Mr Keramidas' evidence placing the motor bike at 11.3 to 15.1 m away is part of an interpretation of the events which Mr Keramidas made long before the hearing and without the benefit of the evidence given at the hearing. This interpretation is illustrated by Mr Keramidas' Sight-Line Diagram (Supplementary Appeal Book 106) which shows Ms Sharpe's motor bike making an approach which did not include stopping at the point where the Trial Judge found she stopped; in the Sight Line Diagram the positions of the motor bike at 11.3 and 15.1 m are further away than the point at which the Trial Judge's own finding (1) established that the motor bike stopped. It is clear that at the point where Ms Sharpe stopped the motor bike (as the Trial Judge found she did) Ms Sharpe and her motor bike were within the view available to Mr Gordon immediately before he started to cross the footpath. It was plainly an error for the Trial Judge to bring under consideration this part of Mr Keramidas' opinion: the facts as he interpreted them were altogether inconsistent with the Trial Judge's earlier findings based on evidence which the Trial Judge had reviewed.
16 Although Keramidas finding (7) is not literally inconsistent with earlier findings, it loses most of its force because of its association with Keramidas finding (6) which is inconsistent with earlier findings.
17 Keramidas finding (8) is mathematically inconsistent with the Trial Judge's own finding (5) in which Ms Sharpe's motor bike moved from its point of rest to the point of collision, a little over 10 m, and attained a speed of around 10 to 15 kmh. As a matter of arithmetic, it takes 2.4 seconds to travel 10 m at a constant speed of 15 kmh and 3.7 seconds to travel 10 m at a constant speed of 10 kmh. If 10 kmh and 15 kmh are averaged, it takes 2.88 seconds to travel 10 m at 12.5 kmh. Assuming a constant rate of acceleration the time taken to travel 10 m while accelerating from rest to 15 kmh is 4.8 seconds. It is consistent with the Trial Judge's own findings that Ms Sharpe may have been able to see Mr Gordon's vehicle for a longer period than he would have had a view of the motor bike because the front of the vehicle, forward of the driver, appeared in view before the vehicle reached a position where Mr Gordon in the driver's seat could see the footpath to his right including the place where the motor bike became stationary. As the findings and indeed the evidence do not enable any conclusions to be reached on how long Mr Gordon's vehicle was stationary while he had the opportunity to make observations of the footpath and other observations, and do not enable any conclusions about how long the motor bike was stationary, or about how those two periods relate to each other, no reliable conclusions based on the length of time during which either had the opportunity to observe the other are available. The Trial Judge also made conclusions about the time available in Keramidas finding (11); I do not understand the basis of these conclusions but even if they related to 15 to 20 kmh, or to Keramidas findings (6) and (8), they were incorrect. The same is true of Keramidas finding (12).
18 Keramidas finding (9) is a conclusion which it was not reasonable to base on Mr Keramidas' opinion. It was unusual that a person should be riding a motor bike on the footpath, but it was foreseeable that a postal motor bike might be on the footpath, and in the exercise of reasonable care Mr Gordon should have looked for one.
19 When addressing whether the facts showed negligence the Trial Judge said (Red 80):
… What occurred was that the defendant stopped and looked to his right. He could see 30 feet to his right. The plaintiff was more than 30 feet away and he did not see her. Because the footpath was clear he concentrated on oncoming traffic. While the plaintiff was able to travel that 30 feet distance in the time leading up to the collision, she was travelling at a faster pace than a pedestrian. Her bright clothing attracted his attention at a time when it was too late to avoid the collision.
20 The statements "The plaintiff was more than 30 feet away" and "Because the footpath was clear" show the influence of Mr Keramidas' evidence and are inconsistent with the Trial Judge's own earlier findings.
21 The Trial Judge gave two reasons why the earlier findings did not establish negligence on the part of Mr Gordon; to the effect that: (1) it was reasonable to be expecting pedestrians rather than motorcyclists on the footpath, and (2) Mr Gordon could not have avoided the collision once he had moved off from the point at which he stopped and looked to his right along the footpath; if he had kept looking to his right he would have seen the plaintiff about 1.7 seconds before impact.
22 In my opinion the Trial Judge's reasoning which produced the conclusion that Ms Sharpe had not shown that Mr Gordon was negligent was based on inconsistent and erroneous factual conclusions, and should be set aside; the Court of Appeal should reconsider whether the facts found show negligence and base its consideration upon the Trial Judge's own findings uninfluenced by inconsistent findings attributed to the influence of Mr Keramidas' evidence.
23 In my view, always remembering that the findings about elapsed times and about the speed which Ms Sharpe reached had no precision and that precision is unattainable, the correct analysis of the question of negligence is as follows.
24 Mr Gordon stopped the motor car at a point where he could observe to his right. At that point the engine and bonnet, the parts of the motor car forward of the driver's seat, projected beyond the building line on to the footpath. Evidence does not show how far they projected: the vehicle was a small one and without high confidence it should be said that about 1.5 m or so of the vehicle was standing in the footpath and visible to a person approaching as Ms Sharpe approached. Mr Gordon made observations while his vehicle stood there. It cannot be known how long Mr Gordon's vehicle was stationary while he made these observations. There were many claims on his attention, including possible foot traffic approaching from left and right on the footpath, vehicle traffic on Willee Street proceeding south, and vehicle traffic approaching from his right round the long curve out of Liverpool Road.
25 There was nothing to prevent Mr Gordon from seeing any pedestrian or any motor bike which was 10 m away on the footpath to his right. The motor bike and Ms Sharpe seated on it were highly visible; the motor bike was distinctively and strongly coloured and so was Ms Sharpe's clothing. The probability is however that at about the time he began his observation, Ms Sharpe and her motor bike were stationary about 10 m to his right while she waited for two pedestrians who were walking southerly to pass her. Mr Gordon did not notice the pedestrians or the motor bike; but pedestrians walking away from him and a stationary motor bike on the footpath would have little claim on his attention, while the possibility that motor traffic was approaching from either left or right would have a strong claim on his attention.
26 After he made his observations Mr Gordon moved the motor car forward. It travelled several metres before the collision, when the motor bike struck its right hand side at the driver's door. Mr Gordon first saw the motor bike as a blur to his right almost at the time of the collision.
27 Ms Sharpe started the motor bike and moved north, intending to put mail in the letterbox of the house immediately beyond the driveway. Her movement took something in the order of 3 or 4 seconds or so during all of which the motor car, whether stationary or (it may be) again moving, was fully in her view ahead of her. Ms Sharpe did not observe the motor car until very shortly before the collision; too short a time to apply the brakes effectively.
28 Mr Gordon made an observation of the footpath but the presence of the motor bike did not register in his mind; the probabilities are that it did not register because it was stationary when he made the observation. If Mr Gordon had seen that the stationary motor bike was there, he should not reasonably have conducted himself on the basis that it might start and drive into collision while his car was partly or wholly across the footpath where the rider of the motor bike could see it: the possibility that that might happen was so extremely small that it was reasonable for him not to allow for it. If he had allowed for that possibility the only course available to him was to remain stationary with the motor car partly projecting onto the footpath. As the point of impact was about 1.7 m east of the building line it cannot be known whether the collision would have occurred if he had done so.
29 In my judgment, having regard to the matters I have mentioned, in particular to the fact that Mr Gordon did make an observation of the footpath to his right, and also having regard to the other claims on his attention, it was not negligent of him to move off after having made his observation; nor was it negligent of him to fail to register the presence of the motor bike; nor was he negligent in any other respect.
30 For these reasons I am of the view that the appeals should be dismissed with costs.