Tvedsborg v Vega

CATCHWORDS: CONTRIBUTION - joint and several tortfeasors - apportionment of liability - TORTS - negligence - injuries to passengers - duty of care owed to pillion passengers - TORTS - negligence - injuries to passengers - duty of care owed by motorcyclists to other motorcyclists - DAMAGES - two defendants - use of same expert

Civil Procedure Act 2005, s 56 LEGISLATION CITED: District Court Act 1973, s 127(2) Motor Accidents Compensation Act 1999, s34 Uniform Civil Procedure Rules 2005, rr 2.1, 23.2, 23.7, 23.9

CASES CITED: Vega v Tvedsborg [2007] NSWDC 197

John Tvedsborg (Applicant) PARTIES: Edith Vega (First Respondent) The Nominal Defendant (Second Respondent)

J N Gleeson QC; B G Smith (Applicant) COUNSEL: P S Jones (First Respondent) R R Stitt QC; M W M Stitt (Nominal Defendant)

Moray & Agnew (Applicant) SOLICITORS: Colin Daley Quinn (First Respondent) Sparke Helmore (Nominal Defendant)

LOWER COURT JURISDICTION: District Court

LOWER COURT DATE OF DECISION: 10 October 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Vega v Tvedsborg & Anor [2007] NSWDC 197

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40759/07

BEAZLEY JA HODGSON JA BASTEN JA

20 March 2009 John Tvedsborg v Edith Ivonne Vega & Anor Headnote

On 25 April 2004, Ms Vega was seriously injured in a motorcycle accident at Glenbrook, New South Wales. Ms Vega was a pillion passenger on a motorcycle ridden by Mr Tvedsborg. According to a witness of the accident, a motorcycle travelling in front of Mr Tvedsborg's motorcycle clipped Mr Tvedsborg's motorcycle immediately before the accident. The identity of the rider of the motorcycle that clipped Mr Tvedsborg's motorcycle is unknown. Ms Vega brought proceedings against Mr Tvedsborg and the Nominal Defendant and Mr Tvedsborg and the Nominal Defendant brought cross-claims against each other. Goldring DCJ, the trial judge, found Mr Tvedsborg solely liable for the accident and dismissed the claim brought by Ms Vega against the Nominal Defendant as well as the cross-claims brought by Mr Tvedsborg and the Nominal Defendant.

Mr Tvedsborg appealed on the grounds that the Nominal Defendant was solely responsible for the accident. As an alternative, Mr Tvedsborg claimed that the Nominal Defendant was partly responsible for the accident with an appropriate apportionment of liability of 75 per cent to the Nominal Defendant.

The issue on appeal was whether his Honour had erred in attributing sole responsibility for the accident to Mr Tvedsborg.

1. A motorcyclist has a duty to a pillion passenger that includes riding at a safe speed and keeping a proper look out. The trial judge was not in error in finding that Mr Tvedsborg breached the duty of care he owed to Ms Vega: [34]-[35].

2. A motorcyclist has an obligation to ensure that he/she does not move into the path of any other motorcycle. The Nominal Defendant was negligent in moving a sufficient distance from its line of travel so as to clip Mr Tvedsborg's motorcycle. The trial judge was therefore in error in finding that the Nominal Defendant was not in any way liable for the accident: [36]-[37].

3. Where the issue of damages remains the only issue in the case and where the two and only defendants do not have conflicting interests on the issue, the defendants should be limited to one expert in each of the various medical specialities relevant to the claim. This will assist in ensuring the just, quick and cheap resolution of the issue [39]-[43].

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40759/07

BEAZLEY JA HODGSON JA BASTEN JA

20 March 2009 John Tvedsborg v Edith Ivonne Vega & Anor Judgment 1 BEAZLEY JA: The first respondent (Edith Vega) was seriously injured on 25 April 2004 in a motorcycle accident at Glenbrook, New South Wales. At the time, Ms Vega was a pillion passenger on a motorcycle ridden by the applicant (John Tvedsborg). According to a statement made to the police by another motorcycle rider, Garry Wilkins, the front wheel of Mr Tvedsborg's motorcycle was clipped by a motorcycle in front, when that motorcycle drifted to the right from its line of travel. Neither the identity of that motorcycle, nor its rider, is known. 2 Ms Vega brought proceedings against Mr Tvedsborg alleging negligence in the riding of his motorcycle. She also brought proceedings against the Nominal Defendant on the basis that the accident was caused or contributed to by the rider of the unidentified motorcycle: see the Motor Accidents Compensation Act 1999, s 34. It will be convenient in the course of these reasons to refer to the Nominal Defendant, or the Nominal Defendant's motorcycle, when referring to the rider or the unidentified motorcycle. 3 The trial judge, Goldring DCJ, held that Mr Tvedsborg was solely liable for the accident and entered judgment against him. His Honour dismissed Ms Vega's claim against the Nominal Defendant. Cross-claims brought by Mr Tvedsborg and the Nominal Defendant against each other were dismissed: Vega v Tvedsborg [2007] NSWDC 197. 4 As the trial below involved a separate determination of liability, leave to appeal was required: see District Court Act 1973, s 127(2). Leave to appeal was granted by the Court in the course of the hearing. 5 Ms Vega had not appealed against the dismissal of the proceedings against the Nominal Defendant. The Court drew to her attention that if Mr Tvedsborg were to be wholly successful on the appeal, she would be without a verdict against either defendant. The Court indicated it would consider an application for leave to cross-appeal so as to enable her to protect her position. An oral application was then made and the Court granted leave to cross-appeal. The grant of that leave should be taken as including leave to make the application out of time. Ms Vega filed a notice of cross-appeal in accordance with directions made by the Court. 6 Mr Tvedsborg's primary position on the appeal was that the Nominal Defendant was solely liable for the accident. (As a fallback position, he contended that the Nominal Defendant was partly responsible for the accident and submitted that an appropriate apportionment of liability was in the range of 75 per cent to the Nominal Defendant.) 7 None of the parties challenged the trial judge's findings as to how the accident occurred. The undisputed findings were as follows. The accident occurred on Railway Street, Glenbrook, during the course of the Hell's Angels Motorcycle Club's annual "Poker Run". The event is principally to raise money for charity and is open to any member of the public who rides a motorcycle and to pillion passengers. On this occasion, there were about 800-1,000, or even more, participants. Railway Street comprises a bitumen carriageway approximately 6 m wide, with one lane in each direction. At the location of the accident, there were unbroken white lines dividing the left and right hand lanes. 8 The appellant was a member of the Kings Cross Bikers Club and participated in the "Poker Run" with other members of that club, including Mr Wilkins. Both Mr Tvedsborg and Mr Wilkins were experienced motorcyclists. 9 There were regular stops during the course of the ride. In accordance with the tradition of the ride, no announcement was made as to where the group would go after each stop, or by which route. In general terms, it was expected that all participants would follow the Hell's Angels. 10 There was a stop at the Lapstone Hotel at Glenbrook at about 1pm. Mr Wilkins, who was riding his motorcycle in company with Mr Tvedsborg, said that there had been an expectation that after the stop at the Lapstone Hotel, the group would head towards Katoomba. However, this did not happen and the Hell's Angels riders, upon leaving the hotel, rode east down Railway Street, Glenbrook in the direction of Penrith. This apparently caused some consternation amongst some of the riders, including Mr Tvedsborg and Mr Wilkins, as they had to change the direction in which their motorcycles were facing. Mr Tvedsborg and Mr Wilkins were towards the head of the group as they left the hotel. 11 In a statement to the police given at the scene of the accident, Mr Wilkins said that Mr Tvedsborg was about 15 motorcycles from the head of the group. He said that there was a space between the Hell's Angels and the rest of the group and that he lost sight of the Hell's Angels. Mr Wilkins said that as they rode away from the Lapstone Hotel, it was the only time the riders had been able to accelerate hard. He was about 1-3 m behind Mr Tvedsborg. He considered that he reached a speed of 70-80 km per hour. The speed limit was 50 km per hour. 12 Mr Tvedsborg lost control of his motorcycle some 10-20 m west of the intersection of Railway Street and Glenbrook Road. Railway Street is straight at that point, then curves to the left. Mr Tvedsborg's motorcycle fell to the left. Ms Vega was thrown clear, but the motorcycle landed on her. She sustained severe injuries, most particularly paraplegia. 13 Mr Tvedsborg did not give evidence, nor did he make any statement to the police as to how the accident occurred other than to state that he was travelling below the speed limit at the time of the accident. 14 As I have indicated, Mr Wilkins gave a statement to the police at the scene of the accident. He was also interviewed by Mr Tvedsborg's legal representatives at some time before the trial and gave evidence at trial. Mr Wilkins' evidence before his Honour differed significantly from the account he gave to police. His Honour rejected his evidence at trial and accepted that the account given to the police was true. 15 In the account to police, Mr Wilkins said: "…

I think we were doing between 70-80 km/hr. I was on the inside (left) side of [Mr Tvedsborg]. [Mr Tvedsborg] was driving a yellow dynawide glide Harley Davidson WXB20.

As we approached a sweeping left hand bend, the bike to the inside of [Mr Tvedsborg] in front of him drifted out towards the centre line, taking [Mr Tvedsborg's] front wheel out. The bikes touched.

[Mr Tvedsborg's] bike came down. Low side left. [Mr Tvedsborg] had a pillion passenger who is his de facto wife [Ms Vega]. Her name is Edith.

The bike slid along the bitumen for around 20 meters [sic]. The bike hit the dirt and flipped. I saw [Ms Vega] go on her back first sliding along the ground, and hit her head on the storm water drain. Her body did a complete flip and the bike ended up on top of her legs.

I pulled up and directed the rest of the 800 bikes to continue through.

I don't remember the registration or what type of bike clipped [Mr Tvedsborg's] bike.

13. I don't know the bike that got to the front as there is always a mad rush to get to the front when the ride resumes. The bike that clipped him wouldn't have realised that they had connected." 16 Mr Wilkins drew a sketch of the accident scene in the police notebook as follows:

17 William Keramidas, an accident reconstruction expert, provided an expert report that was adduced in evidence. For the purposes of preparing his report, Mr Keramidas had inspected the site and also had access to the police photographs. It seems, however, that he did not have access to Mr Wilkins' account as given to the police at the scene of the accident. 18 In his report dated 27 February 2007, Mr Keramidas expressed the following conclusions as to how the accident occurred: "1. The likely approach speed of [Mr Tvedsborg's] motorcycle to the left-hand bend in Railway Street was calculated as being as high as 75 km/h.

2. Taking into account the road geometry, this speed would not of itself have created conditions whereby a loss of control would have occurred.

3. The lack of any tyre marks, indicating loss of traction or skidding wheels, eliminates the possibility of a driver-induced loss of control.

4. The likely mode of loss of control involves a significant 'counter steer' manoeuvre. Given the position of the motorcycle when this manoeuvre took place, the two equally likely reasons for it would be: a. The rider has attempted a collision avoidance manoeuvre. b. The front wheel of the motorcycle has been clipped." 19 The substantial matter that caused the trial judge to accept as correct the account given by Mr Wilkins to police at the scene of the accident was the consistency between that account and Mr Keramidas' reconstruction and in particular, his conclusion in (4)b that the front wheel of Mr Tvedsborg's motorcycle had been clipped. His Honour also considered, at [44]-[47], that it was relevant that Mr Wilkins had accepted in a conference with Mr Tvedsborg's legal representatives in 2005 that the account he had given to the police was true. In addition, the police constable who took the statement telephoned Mr Wilkins to confirm the accuracy of the statement when he returned to the police station on the day of the accident. The police officer said that Mr Wilkins confirmed the statement was true. Mr Wilkins denied that he did so. However, the trial judge, at [34], accepted the police officer's evidence on this. 20 The trial judge held, at [49]: "… that it is more probable than not, that a second motorcycle, being ridden in front of and to the left of [Mr Tvedsborg], did 'clip' his front wheel and cause the motorcycle to lose balance." 21 At [50], his Honour discussed the consequences that flowed from that finding and in so doing, found no breach of duty by the Nominal Defendant. His Honour said: "It does not follow that, because another motorcycle clipped [Mr Tvedsborg's] front wheel, that there was any fault of the driver of that motorcycle. No evidence is before me that there was any such fault, except a vague statement that it 'drifted to the right', but that does not indicate any fault on the part of the rider. [Mr Tvedsborg] was behind this vehicle and had the duty to keep a proper lookout. The burden of proof of such fault lies on the party or parties seeking to rely on it. Therefore, in the absence of any evidence that there was any behaviour on the part of the rider of the cycle in front that amounts to a breach of duty to [Ms Vega], there can be no basis for finding [the Nominal Defendant] liable to [Ms Vega]. Similarly, there is no evidence from which I could find that the driver of the other vehicle broke any duty he or she owed to [Mr Tvedsborg], and therefore [the Nominal Defendant] is not liable to [Mr Tvedsborg] on the cross-claim." 22 That left for consideration whether Mr Tvedsborg had breached his duty of care to Ms Vega. His Honour, at [52]-[61], considered that there were three possible breaches of duty: riding on the wrong side of the road, which he rejected as being unsupported by any evidence; excessive speed, to which I will return; and Mr Tvedsborg's blood alcohol content. Even though Mr Tvedsborg had a blood alcohol reading of 0.083 per cent, his Honour held that it had not been established that alcohol had impaired his capacity to ride. 23 His Honour found that Mr Tvedsborg was riding at about 75 km per hour at the time of the accident. Mr Keramidas had estimated that was the speed at which Mr Tvedsborg was travelling. In his statement to police, Mr Wilkins had estimated the speed at which he and Mr Tvedsborg were travelling and agreed in his evidence that a speed of 75 km per hour or more was possible. He said that he and Mr Tvedsborg were accelerating and riding fast, as the leaders of the ride had disappeared. 24 The only other evidence as to speed was Mr Tvedsborg's statement to police that he was riding below the speed limit. His Honour rejected that statement and concluded, at [56], that: "Given the speed of [Mr Tvedsborg's] cycle, I must infer that the rider, despite his skill and experience, was far less able to control the motorcycle and take action necessary to avoid the vehicle that clipped his tyre, or to take remedial action. I find that [Mr Tvedsborg] was riding at an excessive speed and that this was a significant causal factor leading to [Ms Vega's] injuries." 25 Mr Tvedsborg challenged this finding on three bases. First, he contended that his Honour failed to consider the Nominal Defendant's duty of care when moving within the lane in which the motorcycles were travelling, and erred in finding that the sole duty to keep a proper lookout was on Mr Tvedsborg in the circumstances. It was submitted that his Honour had appeared to have proceeded on the incorrect assumption that only one motorcycle may travel in a single lane. Reference was made to Australian Road Rules, reg 151, although no reference had been made to these Rules at trial. Having regard to the conclusion I reach below, reg 151 is not relevant to the determination of liability. 26 Secondly, it was submitted that given the context in which the accident occurred, namely, a motorcycle event involving 800-1,000 motorcycles travelling together, the Nominal Defendant should reasonably have expected that another motorcycle was, or could be, travelling partly alongside it to the right within the marked lane. It was submitted that in those circumstances the Nominal Defendant was negligent in drifting from its line of travel. 27 Finally, it was submitted that his Honour erred in finding that the speed at which Mr Tvedsborg was riding was excessive and that this was a significant causal factor leading to the accident. 28 As I have said, there was no dispute on the appeal that the accident occurred in the circumstances described by Mr Wilkins in his statement and sketch given to the police at the scene of the accident. Although that statement is clear in implicating the Nominal Defendant's vehicle in the accident, three matters emerge from the statement that require consideration in relation to whether the Nominal Defendant should bear any or all of the responsibility for the accident. The first is the position of the Nominal Defendant's motorcycle before it commenced its drift to the right and, in particular, whether it was ahead of Mr Tvedsborg, or whether there was at all relevant times some overlap between the back wheel of the Nominal Defendant's motorcycle and Mr Tvedsborg's motorcycle. The second question is whether the Nominal Defendant's motorcycle was also travelling at about 75 km per hour. Thirdly, there is a question as to the extent of the drift to the right of the Nominal Defendant's motorcycle. 29 In his statement, Mr Wilkins described the position of the respective motorcycles as follows. He said he was behind and on the left side of Mr Tvedsborg. He described the Nominal Defendant's motorcycle as being "to the inside of [Mr Tvedsborg] in front of him" ([41]). According to the sketch plan, there was some overlap between the Nominal Defendant's motorcycle and Mr Tvedsborg's motorcycle. It is not clear whether that was the position of the two motorcycles leading up to the collision, or was the position at the point of collision. However, for the reasons I discuss below, I have come to the conclusion that the precise position of the motorcycles in the moments before the Nominal Defendant's motorcycle drifted towards the right is not relevant in determining the liability of either Mr Tvedsborg or the Nominal Defendant. 30 The second question relates to speed. His Honour did not make a finding as to the Nominal Defendant's speed. Nonetheless, it is reasonable to infer from Mr Wilkins' statement as a whole that the three motorcycles were travelling at some speed. This inference may be drawn from Mr Wilkins' comment, at [13] of his statement, that "there is always a mad rush to get to the front when the ride resumes"; his evidence that they had lost sight of the Hell's Angels riders; and his statement that this was the only time on the ride that the riders had been able to accelerate hard. Further, there was no suggestion in the evidence that Mr Tvedsborg was overtaking the Nominal Defendant's motorcycle or was moving up on the Nominal Defendant's motorcycle so as to be closing any gap between the two motorcycles. I will return to the relevance of the speed of both vehicles in a moment. 31 The final consideration that emerges from Mr Wilkins' statement is the extent of movement of the Nominal Defendant's motorcycle. Mr Wilkins said that the motorcycle "drifted out towards the centre line". However, there was no evidence as to the extent of the drift. Senior Counsel for Mr Tvedsborg contended that the Nominal Defendant must have drifted in the order of 1.5 m, on the basis that, according to Mr Wilkins' sketch plan, Mr Tvedsborg was riding close to the centre line and the Nominal Defendant was on his left, in about the middle of the lane. The width of the lane was about 3 m. 32 The Nominal Defendant, relying upon a statement that Mr Wilkins had made on 5 August 2004 to Mr Tvedsborg's insurer, argued that the Nominal Defendant's motorcycle had moved about "6 to 8 inches". The statement was not in evidence, but was the subject of cross-examination of Mr Wilkins by Mr Tvedsborg's counsel. In cross-examination, Mr Wilkins said that the motorcycle may have moved to that extent, but the statement he had provided to Mr Tvedsborg's insurer was just part of his story (which he changed in his evidence) to say it wasn't Mr Tvedsborg's fault and that he was clipped by another motorcycle. 33 The finding upon which his Honour reached his determination of liability was that Mr Tvedsborg was travelling at speed: at [56]. Although there is a reasonable inference that the Nominal Defendant was also travelling at speed, and probably about the same speed, I have reached the conclusion that that inference is not necessary to determine the liability of either Mr Tvedsborg or the Nominal Defendant, although it reinforces the conclusion that I otherwise reach. 34 Mr Tvedsborg had a duty to Ms Vega, that included a duty to ride at a safe speed and to keep a proper lookout. He was riding at a speed considerably in excess of the speed limit. The obligation to keep a proper lookout required him to have regard to the motorcycles around him and, relevantly, ahead of him. As at the point of collision Mr Tvedsborg was riding with his front wheel partially overlapping the rear wheel of the Nominal Defendant's motorcycle, Mr Tvedsborg must have been travelling at such a speed that he did not observe that the Nominal Defendant was moving out of his line of travel, and must not have been able to slow down or take any other action so as to avoid the clip between some part of the rear of the Nominal Defendant's motorcycle and the front portion of his motorcycle. This was so regardless of whether immediately prior to the Nominal Defendant drifting to the right, he was riding with his front wheel partially overlapping the rear wheel of the Nominal Defendant's motorcycle, or was behind the Nominal Defendant. 35 Having regard to the undisputed findings of the trial judge, no error has been shown in his determination of liability that Mr Tvedsborg breached his duty of care to Ms Vega. Accordingly, order (1) made by the trial judge that there be a verdict for Ms Vega against Mr Tvedsborg is confirmed. 36 Was the Nominal Defendant also negligent? As I have said, it is reasonable to infer that the Nominal Defendant was travelling at considerable speed. However, that is not the critical matter in determining the Nominal Defendant's liability. The Nominal Defendant had an obligation to maintain its line of travel so as to ensure it did not move into the path of any other motorcycle. Given the number of motorcycles on the road, the Nominal Defendant must be taken to have been aware that motorcycles would, from time to time, be accelerating so as to come into close proximity to him/her. The Nominal Defendant was therefore negligent in riding the motorcycle in such a manner that it moved a sufficient distance from its line of travel so as to clip Mr Tvedsborg's motorcycle. Accordingly, order (3) made by the trial judge that there be a verdict for the Nominal Defendant against Ms Vega must be set aside. 37 It also follows that his Honour's order (4) in favour of the Nominal Defendant on Mr Tvedsborg's cross-claim must be set aside. In my opinion, given that the position in which Mr Tvedsborg was riding was behind, or mostly behind, the Nominal Defendant, he was in a position to observe what the Nominal Defendant was doing. A proper apportionment of the responsibility is, therefore, 75 per cent to Mr Tvedsborg and 25 per cent to the Nominal Defendant. 38 Damages remain to be assessed and accordingly, the matter must be remitted to the District Court for that purpose.

Medical examination 39 As the matter is to be remitted for the assessment of damages, it will be necessary for medical evidence to be organised. Each defendant is entitled to serve on the plaintiff a notice for her medical examination: Uniform Civil Procedure Rules 2005 (UCPR), r 23.2. The Court may order testing for the purpose of assessing the extent of impairment of the plaintiff's earning capacity: UCPR, r 23.7. Default in compliance by the plaintiff can give rise to relief in the form of a judgment in favour of a particular defendant: UCPR, r 23.9. 40 When the Court raised with counsel for Ms Vega the potential need to file a cross-appeal, it was informed that her position on the appeal was to defend the trial judge's judgment, that is, the verdict against Mr Tvedsborg, as well as that in favour of the Nominal Defendant. An investigation of this stance, which appeared to the Court to be misguided, revealed that Ms Vega did not wish to have to undergo two lots of medical examinations at the behest of the defendants as was likely to be the case if both defendants remained in the proceedings. As mentioned earlier, Ms Vega subsequently filed a cross-appeal to protect her position should Mr Tvedsborg be successful in having the appeal upheld totally in his favour. 41 As the result of the appeal is that there will be two active defendants to Ms Vega's claim, her concerns in respect of the multiple medical examinations remain in focus. Although all counsel who appeared on the appeal are experienced in personal injury litigation, they presented varying opinions as to the likelihood of Ms Vega being required to undergo two sets of medical examinations at the behest of the defendants. 42 However, given that Mr Tvedsborg and the Nominal Defendant now have the same interest there does not appear to be any logical reason why Ms Vega should have to contend with two contests in respect of damages. Indeed, it would generally be improper to impose upon the plaintiff the burden of undergoing medical examinations by experts nominated by each defendant. The Civil Procedure Act 2005, s 56, requires the Court to give effect to the overriding principles of the Act and the UCPR, namely, the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. That will not be achieved if two sets of defendants' medical examinations are permitted. 43 If there is any doubt on this question, then the matter is procedurally unsatisfactory. I can see no reason why Mr Tvedsborg and the Nominal Defendant should not be limited to one expert between them in each of the various medical specialities relevant to the claim. If the parties cannot agree on this course, it is a matter in respect of which the trial court could, in the proper exercise of its discretion, give appropriate directions. Those directions may be given in accordance with UCPR, r 2.1, which provides: " 2.1 Directions and orders

The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings."

Costs 44 That leaves the question of costs in respect of which the following considerations arise. 45 First, Ms Vega has been successful in resisting Mr Tvedsborg's appeal. She has also been successful on her cross-appeal. The only additional costs of the cross-appeal are the costs of preparing and filing the cross-appeal. Having regard to the circumstances in which the filing of the cross-appeal occurred, I would propose that there be no order for costs of the cross-appeal. Ms Vega is entitled to a full verdict against each of Mr Tvedsborg and the Nominal Defendant. She is entitled to an order that Mr Tvedsborg pay her costs of the appeal. I consider that as between themselves, Mr Tvedsborg and the Nominal Defendant should bear Ms Vega's costs the trial to date proportionate to their liability, that is, Mr Tvedsborg 75 per cent and the Nominal Defendant 25 per cent. 46 Mr Tvedsborg appealed, not only against the verdict against him, but also against the dismissal of his cross-claim against the Nominal Defendant. Whilst Mr Tvedsborg has not been successful in having the verdict against him displaced, he has had partial success in having a portion of responsibility for the accident attributed to the Nominal Defendant. It was necessary for him to bring these proceedings to achieve that result. 47 The Nominal Defendant did not concede that it bore any liability for the accident and vigorously resisted any verdict against it. Mr Tvedsborg's argument, to the extent that it was directed to attributing the whole of the liability to the Nominal Defendant, did not involve any lengthening of the argument before the Court. The question whether the Nominal Defendant was liable wholly or in part raised the same matters of fact as were raised on the appeal against the verdict in favour of Ms Vega. In those circumstances, Mr Tvedsborg should be entitled to the costs of his appeal from the dismissal of his cross-claim against the Nominal Defendant. 48 The costs at first instance require readjustment. I have already dealt with Ms Vega's costs in that regard. 49 Mr Tvedsborg and the Nominal Defendant brought cross-claims against each other. The effect of the Court's determination is that each has had partial success on the cross-claims to the extent of the Court's apportionment of liability as between them. It should be observed that the Nominal Defendant did not appeal from the dismissal of its cross-claim. Nonetheless, an order on Mr Tvedsborg's cross-claim appropriately deals with the respective liability of each in accordance with these reasons. No evidence additional to that adduced on Ms Vega's claim was adduced on the cross-claims and the submissions would presumably have been bound up with the submissions on liability generally. It is unlikely, therefore, that the bringing of the cross-claims added, other than marginally, to the costs of the proceedings. Accordingly, the fair order in the circumstances is that Mr Tvedsborg and the Nominal Defendant bear their own costs of their respective defences and cross-claims. 50 I propose the following orders:

The appeal by Mr Tvedsborg from the finding of liability against him be dismissed;

The appeal by Mr Tvedsborg in respect of the dismissal of his cross-claim against the Nominal Defendant be allowed;

Ms Vega's cross-appeal against the Nominal Defendant be allowed;

Set aside orders (3) and (4) made by the trial judge in the Court below;

Verdict for Ms Vega against the Nominal Defendant;

Verdict for Mr Tvedsborg against the Nominal Defendant on Mr Tvedsborg's cross-claim. Apportion liability against Mr Tvedsborg and the Nominal Defendant on their respective cross-claims in the proportions 75 per cent and 25 per cent respectively;

Mr Tvedsborg and the Nominal Defendant pay Ms Vega's costs to date of the proceedings at first instance. As between themselves, those costs are to be borne by Mr Tvedsborg and the Nominal Defendant in proportion to the their share of liability as assessed by the Court;

The Nominal Defendant and Mr Tvedsborg are to bear their own costs of their respective defences and cross-claims in the Court below;

10. The Nominal Defendant pay Mr Tvedsborg's costs of the appeal (not including the costs Mr Tvedsborg has been ordered to pay to Ms Vega);

11. Remit the matter to the District Court for the assessment of damages. 51 HODGSON JA: I agree with the orders proposed by Beazley JA and, subject to what I say below, I agree substantially with her reasons. 52 I would infer from Mr Wilkins' use of the word "we" in pars 6 and 7 of his statement to the police, his description of the accident (with no suggestion of overtaking) and his diagram, that all three bikes were travelling at roughly the same speed of around 75 kph. I would regard that speed as excessive and indicative of negligence, and (as regards the Nominal Defendant and Mr Tvedsborg) causative of the accident. Further, having regard to that speed, reasonable skill and care would have required the Nominal Defendant to be aware of his place in the formation and to be careful to maintain his line, and Mr Tvedsborg to be vigilant concerning the movements of the Nominal Defendant's bike; and I would infer further breaches in these respects also. 53 BASTEN JA: I agree with Beazley JA, including her Honour's remarks with respect to future medical examinations, if damages remain in dispute. **********

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