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  • Unreported Judgment

Turner v Nominal Defendant

 

[2008] QSC 138

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

DELIVERED ON:

25 June 2008

DELIVERED AT:

Brisbane 

HEARING DATE:

14, 15 April 2008

JUDGE:

Daubney J

ORDER:

  1. Judgment for the plaintiff in the agreed sum of $200,000
  2. The defendant shall pay the plaintiff’s costs of and incidental to the proceeding, to be assessed on the indemnity basis

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – GENERAL – where plaintiff suffered severe injuries as a result of a motorcycle accident but has limited recollection of the accident itself – where plaintiff contends that the accident was caused by the negligence of an unidentified vehicle’s driver  – where the plaintiff has sued the Nominal Defendant – whether, on the balance of probabilities, the accident was caused by the negligent driving of an unidentified vehicle

Eaton v Nominal Defendant (1995) 21 MVR 357

COUNSEL:

PL Feely for the Plaintiff

MT Kent SC with S Williams for the defendant

SOLICITORS:

McInnes Wilson Lawyers for the plaintiff

Rogers Barnes & Green for the defendant

[1] At about 8.30 pm on 25 May 2002, the plaintiff was riding his motorcycle along the on-ramp leading from the Centenary Highway to the southbound lanes of the Logan Motorway at Carole Park when he lost control of the motorcycle, resulting in him crashing into the guardrail adjacent to the roadway and suffering serious injuries.

[2] The parties have agreed on the quantum of the plaintiff’s claim in the sum of $200,000, but liability remains in issue. 

[3] The plaintiff contends that his loss of control of the motorcycle was caused by an unidentified motor vehicle.  Accordingly, he has sued the Nominal Defendant, which submits that the evidence does not enable a conclusion to be drawn that there was a motor vehicle present, let alone that the driver of that vehicle was negligent.  As will appear from what follows, whilst it is clear that the plaintiff lost control of his motorcycle, there was no direct  evidence as to how this occurred.

[4] The motorcycle was almost new – the plaintiff had owned it for less than a year.  A report of the post-accident mechanical inspection of the motorcycle reveals that it was in a satisfactory mechanical condition and had no defects which could have contributed to the cause of the accident.[1]  It was a cold, clear and dry evening, and it is not suggested that weather conditions contributed to the accident.

[5] The plaintiff had been attending his grandmother’s 80th birthday party at Springfield.  He did not drink any alcohol at the party.  He left the party at about 8.30 pm to return to his home on the Gold Coast.  The route he took required him to travel along the Centenary Highway.  He was proposing then to divert to the Logan Motorway, and ultimately to the Pacific Highway to travel back to the Gold Coast.  Photographs in evidence[2] show the exit ramp from the Centenary Highway to the Logan Motorway – when travelling roughly west along the Centenary Highway, the roadway forks and one veers right and up an incline into the exit ramp.  After the crest of the incline, the ramp descends in a northerly direction into a hairpin turn, which ultimately discharges the driver onto the Logan Motorway.  The exit ramp is bounded by metal railings and concrete barriers.  Just after the crest of the exit ramp’s incline, there is a left bend warning sign and a 40 kph advisory speed sign.  These are located 100 metres from the motor cycle’s point of impact with the metal railing.[3]

[6] In evidence before me, the plaintiff described travelling along the Centenary Highway at something less than the speed limit of 100kph;  he said it was too cold for him to be travelling at the speed limit, and he was only wearing light jacket.  He described approaching the Logan Motorway exit and “trail braking” to slow down.  He said he remembered that he looked in his rear-vision mirror and saw the headlights of a car behind him.  As he ascended the incline of the ramp he heard the “boom boom boom” of amplified music coming from the vehicle behind him.  He said:

 

Yep?--  And I was going up the rise that slightly goes to the left and - or just before that I remember hearing the noise of the stereo system, a boom boom boom of the base sound.

 

Yes?--  And it was coming from the vehicle that was behind me.

 

Yeah?--  It was actually a little bit closer.  I didn't think too much about it, it was a fair distance away - I mean, I don't - I'm not 100 per cent sure what distance it was behind me - and then when I was actually starting going up the rise that goes to the left to take the loop, I heard it really distinctive, very, very loud the music, and I thought to myself, "Hell, that's close," and I looked in my rear-vision mirrors and there was just light all through and then it freaked me out, and I looked forward and all my - I couldn't distinguish my headlights from any - all the lights around me from the car's headlights-----

 

Yep?--  And then I remember waking up in hospital.

 

You don't remember anything after that last point at all?-- No, nothing at all.

 

And your recollection about that has never returned to you; is that right?--  No, that's correct.

[7] The plaintiff has a vague recollection of being asked who his next of kin was, but he was unsure whether this happened at the accident scene or at the hospital.  He responded to the query in words to the effect that his father’s details were in his mobile telephone.

[8] The plaintiff was transported by ambulance to the Princess Alexandra Hospital, where he was an inpatient for nearly two months.  He underwent a number of surgical procedures during his time in hospital, and was medicated, including with painkillers, for much of his time in hospital.  When he gave evidence, he said that he did not have a good recollection of much of what happened while he was in hospital:

 

Right.  How did you feel in hospital to the extent that you can remember?--  I know that I was in a lot of pain.  I was quite depressed.  A lot of the time I was wishing I was dead, I had died in the accident, just because of the pain I was going through.

 

Yeah.  Can you tell us what injuries - Mr Turner, can you tell us what injuries very quickly that you suffered in the accident?--  I had a broken pelvis.

 

Yes?--  A broken right femur, a broken collarbone and I done bladder damage, urethral tube, tore that in half, it was due to the pelvis fracture.

[9] On 12 August 2002, the plaintiff signed a Notice of Accident Claim Form[4], which was served on the Nominal Defendant in compliance with the Motor Accident Insurance Act, in which he gave the following description of the accident:

 

Took the connecting ramp off the Centenary Highway/Freeway so as to get on the Logan Motorway.

Came off my bike at the top of the loop.

Do not remember very much (have retrograde amnesia – can’t remember just before the accident until about 12 hrs later).  Remember a vehicle approaching quickly from behind as could see the two headlights coming up quickly & could hear loud music from the vehicle.  Believe I was either pushed from behind/hit striking me causing me to fall off the bike & slide and hit the guardrail on the right hand side of the ramp.”

[10] On 5 September 2002, the plaintiff signed an Additional Information Form[5] for the Nominal Defendant, which contained the following question and answer:

 

If there was an unidentified vehicle involved, advise any information that will assist in its identification (eg, colour of vehicle, unusual features, signwriting.)  Also describe how you have tried to find information to assist in its identification (eg. Did you talk to witnesses, advertise for witnesses to contact you or ask the police.)

 

Cannot remember any details about vehicle other than hearing loud music before the accident happened – have retrograde amnesia (can’t remember just before the accident until about 12 hours later).

Obtained the Traffic Incident Extract (printed on 17/7/02) in which Police stated there were no witnesses.  Advertised in Saturday 10 August 2002 Courier Mail for witnesses.  To date no-one has responded.

[11] On 18 February 2003, the plaintiff’s solicitors wrote to the Nominal Defendant, advising that the plaintiff instructed that his memory of the accident was as follows[6]:

 

We refer to your letter dated 15 January 2003 and advise that our client instructs the following as to his memory of the accident:-

 

1.Whilst travelling along the Centenary Freeway, after the Carole Park turn-off he was doing approximately 65-70km/hour;

 

2.At that time, he remembers looking into his rear vision mirror approximately 300-500 metres before the turn-off/scene of the accident to observe 2 motorcyclists racing each other who were heading in the opposite direction;

 

3.At that time, he first observed behind him the vehicle who he believes either hit him or ran him off the road;

 

4.He cannot accurately assess the distance the vehicle was behind him at this time, but stated that it was at such a distance that it was not a concern to him;

 

5.He stated that he looked in the rear vision mirror for more then a glance.  It was between 1-3 seconds up to a maximum of 5 seconds;

 

6.The next time he looked in the rear vision mirror, which was approximately 50 metres before the turn at which the accident occurred, was because he could hear loud music coming from behind him and the headlights of a vehicle behind him that shone out in front of him;

 

7.He said he could hear the music – a loud bass sound, ie. Boom, boom, boom etc – even when he had his helmet on;

 

8.Because of the glare coming off the rear vision mirror due to the bright headlights that shone over him he does not know how many people were in the vehicle;’

 

9.The vehicle behind him may have had foglights (they were not on though) but he cannot remember any other distinguishing features;

 

10.He said that this time (the same vehicle) was at close proximity and not slowing down behind him/was closing in on him;

 

11.He stated that this occurred about 1-2 seconds before the point of collision;

 

12.He said that he was taking the Logan Motorway turn-off that night a no more then 40km/hour and was braking at the same time;  and

 

13.After this point of time he has no recollection of what happened.  The next thing he knows is that he woke up in hospital.

[12] On 27 March 2003, in response to a request for information from the Nominal Defendant’s solicitors, the plaintiff made a statutory declaration in which he stated:

 

1.I had been riding approximately 8 km immediately prior to the accident.  The distance from the address noted in question 2 below.

 

2.I left Sharpless Road, Springfield, this being the residence of my aunt and uncle.

 

3.I was returning to my then place of residence of 7 Pascali Court, Stephens, which is on the Gold Coast, Queensland.

 

4.(a)I am unable to accurately assess the distance the unidentified vehicle was behind me at this time, but that it was at such a distance that it was not of a concern to me.  The accident occurred at night time, the road was curved and sloping, and I became aware of the unidentified vehicle approaching from behind by its headlights and rapidly increasing volume of noise from the stereo unit in the vehicle.

 

(b)I cannot accurately determine the speed required to be provided by this question due to the factors mentioned in 4(a) above.  However, I believe that the speed was definitely in excess of the speed I was travelling as the fast approach of the unidentified vehicle was made obvious by the rapid increase in brightness of its headlights and sound from the stereo from behind me.

 

(c)I was travelling at approximately 65-70 km/hour when I first became aware of the unidentified vehicle.

 

5.The 4 photographs as attached (and marked by a line of the path of my motorcycle) do depict the off-ramp and the approach to it just prior to where the accident occurred.  The 5th photograph, a close up of the actual bend in the off-ramp (as attached but left blank), does not depict the ramp prior to the location of the accident as the accident had occurred prior to the location depicted in this photo.

 

6.My speed was approximately 65-70 km/hour when I first became aware of the unidentified vehicle, which was approximately 300-500 metres before the turn-off/scene of the accident.  On approaching the turn off I was travelling approximately 60 km/hour, and slowing down in preparation for entry into the turn off.  My speed then reduced to approximately 40 km/hour or less and still slowing down.  This was in order to navigate the tightening bend at the lower part of the ramp when the accident occurred.

 

7.The foot brake was applied at various times using a trailing process ie. The foot remains on the brake pedal and appropriate pressure is applied to slow down the motorcycle gently and periodically appropriate to the gradually tightening of the radius of the ramp.  I attach the marked photographs as indicated by a “X”.

 

8.The basis of my belief that I was hit by and/or pushed from behind by the unidentified vehicle is as follows:-

 

(i)I knew the road having travelled this particular route on a number of occasions;

(ii)I was aware of the very tight radius at the bottom of the ramp;

(iii)The unidentified vehicle approached very rapidly;

(iv)The booming sound of the music was such that the vehicle was obviously very close;

(v)The rapidly increasing volume of the music indicated the rapid approach of the unidentified vehicle;

(vi)The area immediately in front of an surrounding me just prior to the accident was brightly illuminated by the unidentified vehicle’s headlights to the point where the motorcycle’s headlights were drowned out, indicating the very close proximity of the unidentified vehicle;

(vii)I took every precaution appropriate to the time of day and conditions of the road;

(viii)But for the unidentified vehicle, I am of the opinion that I would have negotiated the ramp safely, as I have done on numerous occasions in the past;

(ix)I am of the belief that that the only reason that the accident occurred was that I was nudged in the rear by the rapidly approaching unidentified vehicle, causing me to lose control of the motorcycle.

 

9.I believe that it was the unidentified vehicle (as noted in paragraph 3 of the letter from McInnes Wilson to the Nominal Defendant dated 18 February 2003) that was the cause of the accident as for the following reasons:

 

(i)I refer to the points as set out in paragraph 8 above in response;

(ii)There were no other vehicle in the vicinity at the time of the accident;

(iii)The only points of entry to the ramp are the entry and exit and the ramp is one way only, such that any other vehicle involved would have to approach from the rear.

(iv)The sudden and unexpected approach of the unidentified vehicle indicating excessive speed, coupled with the narrow single lane ramp made avoidance impossible under the circumstances.

 

10.I cannot recall any other details as to the circumstances of the accident other then those contained above and those detailed in my solicitor, McInnes Wilson’s letter to the Nominal Defendant dated 18 February 2003.  I have been unable to recollect anything further. 

[13] The plaintiff was cross-examined at some length.  He did not recall his discussions with the ambulance officer, Mr Nugent, and the police officer, Senior Constable Fuller, both of whom attended the scene of the accident.  It was suggested to the plaintiff that he had told both of these attending officers that he had no recollection of the accident and that he made no mention of the presence of another vehicle.  The plaintiff reaffirmed that he could not remember these discussions.  When it was put to the plaintiff that there is no record in any of the hospital documents of him mentioning to any member of the hospital staff that he had any recollection of the accident or of the presence of a vehicle, he responded that he had, in fact, mentioned this to one of the nurses, however this nurse was not identified.  A note of a consultation with an unidentified doctor or nurse on 18 June 2003 recorded that the plaintiff did not recall the incident.  The plaintiff did not specifically recall this consultation, saying that he could not remember the specifics of all the conversations he had while in hospital.  He thought he had mentioned the presence of the other vehicle to his father when he visited him on the day after the accident.  The plaintiff was cross-examined as to the reason why he had not contacted the police himself while he was in hospital, or at least ask for them to be contacted, to which he responded that he had raised this with the same nurse (whom he identified only as one who put him in contact with his current lawyers).  When asked why he did not telephone the police from hospital, he said he was unable to because he was immobilized in bed.  The plaintiff first consulted with his lawyers on 8 July 2003, the day after he was discharged from hospital.

[14] After being cross-examined on the events leading up to the accident, the following exchange occurred:

 

Mr Turner, is it the case that the first thing as you are approaching the ramp, what brought your attention to the rear of you, weren't you watching two motorbike riders racing each other?--  Going in the opposite direction, that's correct

 

And you looked in your rear-vision mirror to see that event, didn't you?-- Yes, I was watching them, yes.

 

And you estimate, or you have in the past estimated that you might have been looking in your rear-vision mirror for up to

to five seconds watching that event?--  Possibly, yes.

 

Was it at that point you first noticed a vehicle behind you?-- Yes, it was.

 

But you are not able to say how far behind you?--  No.

[15] The plaintiff also confirmed that he could not say whether the vehicle he saw behind him actually hit him or ran him off the road.  The plaintiff was adamant that he was driving at a speed of less than 60 kph prior to the accident and that he was braking.  When cross-examined about this, by reference to an answer in the Additional Information Form in which he had stated that his estimate of his speed at the time of the accident was “maximum of 60 km/hour”, the plaintiff said he was able to judge his speed “because it’s the normal speed that I take” and “I've based part of that on the fact that I've taken that - driven that same route on numerous times and I've never changed the way I enter that - the loop road”.  The plaintiff said that when he saw the lights of the following vehicle lighting up the road ahead of him, indicating to the plaintiff how close behind him the car was, he “freaked out”.  The evidence as to the precise point at which this occurred on the exit ramp was a little confusing, but counsel for the defendant and the plaintiff ultimately concurred in the notion that this was “at a point 50 metres or thereabouts before the bend”.[7] The plaintiff conceded that, if he had “freaked out” at this point, he would have had ample opportunity to pull to either side of the road before the hairpin turn.  The following passage of evidence then occurred:

 

You said you were freaked out at a point 50 metres or thereabouts before the bend?--  Yes, I was freaked out because of the close proximity that it was to me.

 

Does that not mean you might have been distracted by it?-- Yeah.  At that point of time, yes, I could have been.

 

But you weren't distracted by it after that as you've proceeded?--  I can't remember anything after that point.

 

Fifty metres before the bend?--  No, well when it was right up my backside, yes.  I can't remember anything after that.

 

Well, we have established, I think, that that was 50 metres before the actual bend?--  Then, yes.

 

You might have overreacted to its presence, tried to turn around and look at it, any of those things, couldn't you?-- No.

 

No?  You rule that out?--  Yes.

 

How can you rule that out?--  Because I was looking directly ahead.

 

Up until you remember, 50 metres before the turn, before the bend.  We know your bike and you made it a lot further than that, don't we?--  Yes.

 

So you can't say what you were doing in that interval, can you?--  No, I was looking directly ahead.

 

Well, you don't remember you told me?--  No. When the car was up my backside and I freaked out, I looked directly in front of me and I was looking directly in front of the road, and-----

 

Sorry?--  And I don't remember anything after that point.

[16] The plaintiff then conceded, however, that this was the first occasion on which he had given a version of “freaking out” because of the close proximity of the car to his rear.

[17] Evidence was led from Sergeant Steven Webb, who was then attached to the Queensland Police Traffic Accident Investigation Squad.  Sergeant Webb attended the scene on the evening of the accident, took various photographs which were in evidence, identified gouge marks in the roadway which were apparently indicative of the point at which the plaintiff lost control of the motorcycle and other indicia of the accident, and took measurements which formed the basis of the (not to scale) plan of the scene which is in evidence[8].  The gouge marks commenced at a point in the roadway just over 20 metres from the point of impact with the railing.  The motorcycle then bounced off the railing to come to rest at a point some 12 metres from the railing.  Sergeant Webb said that pattern of the gouge marks and the damage he observed to the motorcycle were consistent with it having “high-sided” and flipped, leaving contact with the road, and then coming back to ground again as it slid towards the railing.  He found no evidence of any involvement of another vehicle in the accident.

[18] The plaintiff’s father gave evidence about visiting his son in hospital the day after the accident.  He described his son’s condition as “pretty grim”, saying that his son was in a “webbing contraption suspended off the bed” and that it was “quite frightening”. He said he asked his son what had happened, but the plaintiff was mumbling and “somewhat incoherent”.  The father said[9]:

 

I imagine he was heavily sedated.  He was mumbling and all I - all I could make out he said was bright lights, loud music and mumbling and he was sort of drifting.

[19] The plaintiff also led evidence from Mrs Deborah Robinson and her daughter, Jasmine Cook.  Mrs Robinson’s home is situated in an estate near the Centenary Highway – Logan Motorway interchange, and the site of the accident is visible from her back patio and backyard.  In her evidence in chief, she said that she recalled hearing a “screech” or a “bang” that sounded like two cars colliding.  She was inside the house when she heard this.  She went out onto the patio and saw a motorcycle lying on the road.  She also saw a car there, but said that after a couple of seconds it “took off in a hurry”.  This version was, however, significantly diluted under cross-examination, when she conceded she had been alerted to the accident by her daughter coming into the house, that she attended the scene, that an interval of 5 or 10 minutes may have passed before she reached the scene, and that the car of which she had spoken may, in fact, have been one she saw when she arrived at the scene.  Ms Cook, in the witness box, did not come up to the evidence for which she had been opened.  She placed the accident as having occurred during the day, said that she was playing in the yard with friends when she heard the noise of the accident, and then went into the house to tell her mother.  She said that when she heard the noise, she turned her head and saw “the motorbike accident on the road, on the corner of the curve thing”.  She said that she saw no other vehicles.

[20] I propose giving little weight to Mrs Robinson’s evidence.  To my observation, she was an extremely suggestible witness.  Whilst doing her best, she was obviously extremely agitated and nervous when giving evidence.  Her demeanour and mode of answering, particularly when under cross-examination, caused me significant concern as to the accuracy of many of the answers she gave and concessions she made.  Even if Ms Cook had come up to proof in her evidence, I would have afforded it no weight.  Ms Cook suffers from intellectual retardation to such an extent that it was clear to me, when she was giving evidence, that no weight could properly be given to her version.

[21] The defendant called Sergeant Fuller, the police officer who first attended at the scene of the accident.  With the passage of time, he understandably had only some recollection of speaking with the plaintiff at the scene, but said that “from memory [the plaintiff] had no recollection of the actual accident itself”.  There was no record in Sergeant Fuller’s notes of any information having been given to him about the presence of another vehicle, nor was any entry made subsequently by way of update to the Traffic Incident Report to suggest that such information had been received by the police.  Sergeant Fuller did confirm, however, that the plaintiff had obviously suffered very serious injuries, including a break in his leg to the extent that the bone was poking through the plaintiff’s clothing, a crushed pelvis, and other injuries.  When cross-examined as to the degree of the plaintiff’s coherence at that time, Sergeant Fuller said[10]:

 

I couldn't give an accurate answer to that.  I don't have a clear recollection of speaking to him per se.

[22] Mr Mark Nugent of the Queensland Ambulance Service also gave evidence.  He identified the ambulance report of the incident prepared by him.[11]  Mr Nugent recalled attending at the scene, but again, understandably given the passage of time, he was unable to recall the detail of any discussion he had with the plaintiff.  He said that he would have asked if the plaintiff remembered anything of the accident, and that he would have recorded any information given to him.  He said that the fact that there is nothing about this in the report meant that he had asked the plaintiff what he remembered of the accident and that the plaintiff had not been able to give him any details.  Mr Nugent also confirmed that the plaintiff had medication administered to him, including morphine, while en route to the hospital.  His Glasgow Coma Score, when first assessed, was 14 out of 15;  nine minutes later it was 15.  Mr Nugent said that the plaintiff was alert, conscious and coherent on the way to the hospital, notwithstanding the pain management which had been administered to him.  This was reflected in the GCS of 15.  He did, however, confirm that the plaintiff had suffered some significant injuries and was in significant pain.  Mr Nugent also said that at the time of assessing the plaintiff with a GCS of 14, the plaintiff was certainly confused.  Mr Nugent also agreed with the proposition that, given the morphine which had been administered and the confusion the plaintiff was experiencing, it was not surprising that the plaintiff was not talking about the accident.

[23] In order to establish liability in this case, the plaintiff must persuade me, on the balance of probabilities, that:

 

1.there was an unidentified vehicle behind him immediately prior to the accident, and

2.the accident was caused by negligence of the driver of the unidentified vehicle.

[24] The determination of the first of these issues turns on my assessment of the plaintiff’s credit.  The defendant sought to undermine the plaintiff’s credit by pointing to a catalogue of inconsistencies, improbabilities, and, it was asserted, reconstructions in the plaintiff’s evidence.  So, for example, the defendant submitted that the plaintiff’s version had developed over time, pointing to the following:

-the plaintiff was responsive to the ambulance officer but made no reference to the unidentified vehicle;

-the plaintiff did not tell the attending police officer about the unidentified vehicle;

-according to hospital notes, the plaintiff consistently maintained having no recollection of the circumstance of the accident;

-when he signed the Notice of Claim Form, however, he asserted the involvement of a vehicle for the first time.

[25] The defendant submitted that it was impossible to reconcile the degree of detail given in the statutory declaration of March 2003[12] with the scant versions given in the Notice of Claim form and the Additional Information form, let alone the plaintiff’s subsequent assertions (in the statutory declaration and then in evidence before me) as to his speed.  Moreover, the defendant submitted, it is notable that when giving evidence the plaintiff accepted that:

 

- his motorcycle travelled much further than 50 metres before the turn when he lost control;

-the speed of the vehicle approaching behind him could have been due to the fact that he was travelling at 40 kph while the following vehicle was travelling within the speed limit of 60 kph;

-he never identified, in any documentary form, a vehicle following him on his tail at a point 50 metres or so prior to the bend;

-fog lines afforded less traction than the roadway;

-at a point 50 metres before the turn (possibly more but no less) he could have been distracted by the following vehicle.

[26] The authorities make it clear that, in a case such as the present when the only evidence concerning the alleged other vehicle is that of the plaintiff, it is necessary for me to adopt a more cautious approach than is otherwise the case where evidence is available both from the plaintiff and the allegedly negligent other driver.[13]

[27] Despite the skilful and sustained attacked mounted on the plaintiff’s credit by counsel for the defendant, I am inclined to accept the plaintiff’s version and find that an unidentified vehicle was driving on the exit ramp behind the plaintiff, and at a speed faster than the plaintiff, until the car was very close to the rear of the plaintiff’s motorcycle.  It is possible, perhaps even likely, that with the passage of time since the accident, the version he gave in evidence before me was to some extent enhanced by reconstruction. Indeed, some of his estimates of his speed were clearly the product of reconstruction, but reasonably based in my view.  But to the extent, for example, that his reference in evidence to “freaking out” when the car was so close behind him was the product of reconstruction rather than actual memory, it does not detract from the salient factor, namely the close approach of the vehicle behind him.  Even if it is a reconstruction, it is likely to be an apt description of the understandable reaction of a motorcyclist in such a situation.  I draw no adverse inference against the plaintiff from the fact that there is no record of him mentioning the other vehicle to the police or ambulance officer at the scene.  He was obviously seriously injured at the time.  Given the medication which was then administered to him, I think Mr Nugent’s common-sense observation that it is not surprising that the plaintiff was not talking about the accident is completely apposite.  The plaintiff’s father’s recollection of the plaintiff mumbling about bright lights and loud music the day after the accident was not disputed.  Those were, of course, significant elements in the plaintiff’s description of the approach of the vehicle from his rear.  I otherwise draw no inference against the plaintiff from the lack of any reference in the hospital records to the involvement of another vehicle, nor do I place any great weight on the records to which I was directed which describe the extent of his memory of the accident.  No evidence was led from the authors of those notes to explain the context in which they were made, and in particular to explain the terms of the questioning which led to the entries being made.  For example, the mere note of the plaintiff having no recollection of the accident itself would appear to be accurate – what cannot be inferred from that is whether he was asked about his memory of the events leading up to the accident.  Similarly, I ascribe little weight to the plaintiff’s assertion that he told an unidentified nurse about the unidentified vehicle.  The plaintiff’s lack of activity in taking up matters with the police while he was in hospital is, to my mind, readily explicable by the fact that he had suffered serious injuries, undergone numerous medical procedures, and was heavily medicated. I have referred above to his evidence about his state of mind while in hospital. I regard as completely appropriate the fact that, upon his release, he took early steps to vindicate his claim by retaining solicitors to act on his behalf.  There was a suggestion on behalf of the defendant that the accident could have resulted form another cause, being momentary inattention by the plaintiff, excessive speed or a handling error as a consequence of travelling over the fog lines causing a loss of traction.  On the evidence, however, these emerged as no more than possibilities, and could not be regarded as anything more than speculation.

[28] Importantly, for present purposes, the plaintiff gave evidence, and was tested by skilful cross-examination, before me.  Ultimately the question is whether I believe him, there being no competing witnesses or contradictory versions.  Having observed his demeanour, and the manner in which he responded to the questioning by both counsel, I formed the view that he was a witness of truth and would therefore accept his version of a vehicle approaching rapidly behind him.

[29] I am unable, on the evidence, to make a finding that there was actual contact, or collision, between the car and the motorcycle.  The inference is clear, however, and I find that the driver of the unidentified motor vehicle at least approached the rear of the plaintiff’s motorcycle rapidly and dangerously closely such as to cause the plaintiff to lose control of the motorcycle.  To that extent, at least, the driver of the car was clearly negligent, and that negligence caused the accident.

[30] I therefore find for the plaintiff on the question of liability.  There will be judgment for the plaintiff in the agreed sum of $200,000.  The defendant shall pay the plaintiff’s costs of and incidental to the proceeding, to be assessed on the standard basis.

….

Having heard further argument from counsel, the costs order will be amended to allow for costs on the indemnity basis.

Footnotes

[1] Ex 1, p 56

[2] Ex 1, pp 42-50

[3] Ex 1, p 57

[4] Ex 3

[5] Ex 5

[6] Ex 4

[7] T40.28

[8] Ex 1 p 58

[9] T61.42

[10] T78.4

[11] Ex 9

[12] Ex 7

[13] See, e.g., Eaton v Nominal Defendant (1995) 21 MVR 357, per Demack J at 359; Freeman v Griffiths (1976) 13 SASR 494

Close

Editorial Notes

  • Published Case Name:

    Turner v Nominal Defendant

  • Shortened Case Name:

    Turner v Nominal Defendant

  • MNC:

    [2008] QSC 138

  • Court:

    QSC

  • Judge(s):

    Daubney J

  • Date:

    25 Jun 2008

Litigation History

No Litigation History

Appeal Status

No Status