Read v Nominal Defendant[2007] QSC 297

SUPREME COURT OF QUEENSLAND

1. The plaintiff sustained serious injury when he came off his motorbike at Bellmere near Caboolture at about 12.15pm on 14 July 1998.  He claims he was forced off the road to avoid colliding with an unidentified motor vehicle coming towards him on its incorrect side of the highway and causing his motorbike to collide with a cement culvert set back from the road. 

2. The plaintiff sustained a fracture of the fifth vertical vertebrae and as a consequence has tetraplaegea below C6.

3. Quantum has been agreed between the parties in the sum of $4,000,000.

4. Liability is contested. The Nominal Defendant contends that there was no unidentified motor vehicle relevantly involved in the plaintiff’s accident, that is, either there was no car at the place the plaintiff came off his motorbike or, if there was, the driver was not causally negligent. If liability is established, the Nominal Defendant contends that the plaintiff was contributorily negligent in that he was going too fast for the road topography or was not paying sufficient attention to the road ahead so as to be unable to take appropriate evasive action.

Expert reports

5. Mr SC Williams QC for the Nominal Defendant objected to the admissibility of much of the proposed evidence of two experts desired to be called by the plaintiff about the mechanics of the accident.  Mr Farrell, who with Mr Ambrose SC, appeared for the plaintiff, did not seek to hold certain paragraphs in the reports.  After argument I upheld all but one of the objections.  In the result part of the report of Mr Chaseling which contained, for the most part, uncontroversial original evidence such as photographs, sketches and measurements, was admitted and he was not required for cross‑examination.  Mr Kahler’s report was held to be largely speculative and was not admitted save in limited areas relating similarly to original evidence and certain calculations and he was not then required for cross‑examination. 

6. The reasons for excluding this evidence are to be found in the trial transcript at 55‑57 but it may be useful to mention the strictures of Callinan J in Fox v Percy (2003) 214 CLR 118 at 166‑167 about “accident reconstruction” expert evidence

“… Here Mr [        ] was described by counsel for the appellant as an ‘accident reconstruction expert’.  That is an ambitious claim.  Three things may be said about the evidence in this case and running down cases generally.  Rarely in my opinion will such evidence have very much, or any, utility.  Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates.  Minor, and even unintended by inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them.  It is also open to question whether variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court.  The engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged.

The second matter is the reception, apparently without question, of the whole of the contents of the expert reports in this case.  Some of the deficiencies to which reference has already been made would require that, either in law, or in the proper exercise of a discretion, much of them should have been rejected.  In the long run the undiscriminating tender of inadmissible, unreliable or valueless evidence, the acquiescence in its tender by counsel on the other side and its reception into evidence, will prolong and increase the costs of trials.  It will increase the margin for judicial error as occurred here, and will also lead to uncertainties and difficulties in courts of appeal.  No court is bound to accept evidence of no probative value and evidence of slight probative value will rarely provide a foundation for any confident finding of fact, particularly if strong contrary evidence is available.”

Circumstances of the accident

7. On 14 July 1998 the plaintiff, who was born on 16 July 1976 and was aged almost 22, was working as a trade’s assistant with “On the Spot Automatics” at Morayfield where he had been employed for about 18 months.  He had purchased a Yamaha RD 350 motorbike from a work colleague.  The bike was in need of repairs.  The plaintiff had undertaken those repairs himself.  The bike was neither registered nor had a roadworthiness certificate on 14 July.  The plaintiff had proposed registering the bike at the end of that week on Friday (17 July).  Although the plaintiff had considerable experience riding motorbikes off road he did not have an endorsement on his driver’s licence permitting him to drive a motorbike.  He had done a Q‑Ride course which, he said, on payment of a fee, would have entitled him to ride a motorbike up to 650cc.

8. The plaintiff set out in his lunch break to join his then fiancée who was working as a strawberry picker at Wamuran. He was in no particular hurry, he was very familiar with the road, the day was fine and there was little traffic.

9. Bellmere Road at Bellmere was a two lane bitumen road passing through timbered country on one side and open country on the other.  The plaintiff was travelling in a westerly direction.  Travelling in that direction, Bellmere Road made a sweeping curve left, with Stern Road entering on the plaintiff’s right apparently at a point halfway through the curve.  I say apparently, because, as is well known, distances in photographs can be deceptive as can curves, rises and what seem to be flat stretches.  This was commented upon by one of the witnesses - Mrs Thomason - and the plaintiff in cross‑examination said the photographs did not “really appreciate that accident scene” (t/s 44).  The plan of the corner detail drawn by surveyors (p 2 of exhibit 14) compared with photograph 6C, looking back to that curve from the culvert, might be thought to demonstrate this.  I do note, however, that Senior Constable Sinclair, when shown a photograph (exhibit 6E) looking west along Bellmere Road from about the intersection with Stern Road, agreed that it was “the approximate view one would have down Bellmere Road and the scene of the accident”.

10. After passing the Stern Road entrance, Bellmere Road travelled in a straight line for about 100 metres before making a sweeping curve right.  This curve, according to measurements made at the scene by surveyors, straightened out about 21 metres from the culvert.  The width of the road was measured from line edge to line edge as approximately 7 metres.  After discounting the painted double centre lines each side was 3.4 metres wide.

11. The speed limit along that part of the highway was 100 kilometres per hour.  The photograph, exhibit 6D, suggests a rise in the road on the plaintiff’s side of travel approaching the culvert.  From the position of the photographer it is not possible to see far past the culvert in the plaintiff’s direction of travel.  The camera was set at 1500mm, said to be a typical motorbike rider’s height. 

12. The culvert struck by the plaintiff’s motorbike was on the western side of an unsealed entrance road to a property and located almost two metres from the edge of the bitumen and 3.4 metres from the edge of a painted line on the left hand edge of the carriageway. The side of the culvert was raised above ground level by about 200mm. There is another culvert pipe opposite on the eastern side of the entrance road which the plaintiff’s motorbike missed. They were measured at approximately five metres apart.

13. The plaintiff said he would have been travelling at the speed limit or just below it. The speed limit varied along different sections of the highway. When passing the intersection of Stern Road he had slowed to about 70 kilometres per hour (the speed limit was then 100 kilometres per hour at that part of the highway).  He travelled down the straight stretch of road into the right sweeping curve and travelled through it.  He said

“I looked up and I seen the vehicle approaching me from the opposite direction.  It was coming over the hill.  It was two‑thirds on my side of the road.  I think I grabbed the brake.  I laid off to the left to alter the bike’s travel.  I remember travelling along the gravel and then hitting the concrete culvert.”  (t/s 34 lines 45‑50).

14. The plaintiff’s impression was that the car was white and either a Magna or a Cressida make. He next remembered lying on the ground, noticed that his hands were floppy and thought that he had broken his wrists. He lost consciousness. That was his evidence‑in‑chief.  In cross‑examination, not surprisingly, he said that his memories in relation to those events were not fresh.  In his s 37 notice of claim (exhibit 2) pursuant to the Motor Accident Insurance Act 1994, amongst other things, the plaintiff said that he thought the driver of the vehicle was a male and that he was balding, a description which he continued to maintain in cross‑examination but which he could not further elaborate.

15. The cross‑examination of the plaintiff by Mr Williams was robust and although some concessions were obtained from the plaintiff they did not, in my view, alter the central thrust of the plaintiff’s evidence‑in‑chief.  An example will suffice.  It concerns how much of the on‑coming car the plaintiff first saw

“You see, when you gave your evidence‑in‑chief you describe your movements as down, into and through the corner and then saw a car come over the hill two‑thirds on your side of the road.  Where was your motorcycle when you saw that car?---  Oh, I – I can’t be exactly sure.  It was nine years ago, mate.  I’m---

Where was the car then?---  It was coming over the crest of the hill.

What did you see of the car?  Did you see the top of the roof of the car?  Did you see the apillars [sic] of the car?  They’re the ones that run up from – to the roof from the bonnet.  Could you see the windscreen?---  Seen the windscreen.

Could you see the bonnet, the grill?  This is on your first observation of the car?---  Well, the – well, the – I seen the car.  The car was there, that’s all.  I – I looked through and up and the car was there.  That’s all I can say.  It was there.

So your first observation was of a car fully on the road?---  Pretty---

It wasn’t a car that emerges over the crest of a hill.  You can see a car right on the road?---  Oh, I – I – no.  It was there.  There was a car there.  That’s all I can say, Jesus.

But, Mr Read, in the past you’ve said that you saw the car come over the crest of the hill and that’s what you’ve told her Honour today, that you saw the car come over the crest of the hill.  Do you agree with me that suggests that you saw the car emerge over the crest of the hill, roof first, apillars [sic], bonnet, grill, headlights, got the whole car, tyres?  That’s something emerging over the crest of the hill, or coming over the crest of a hill?---  It’s – it’s not a great hill as in such.

It’s enough to hide a car, is it?--- Not entire car I don’t think.

So can you explain why you didn’t see this car any earlier?---  Because I was watching where I was going through the corner.

What’s your evidence now as to seeing this car?  Did you see the whole car at your first observation --- ? ---  Yep.

--- or did you see part of it at your first observation?---  I – I can’t answer that.  It was nine years ago, mate.  I just remember the car being there.  I ---

Well, how far away --- ? ---  I can’t tell you.  I can’t tell you exactly how far away it was or – it was just there.  I went through the corner, I looked up to the straight and it was there.  I’m sorry.

Right.  So you can’t say how far away the car was.  You can’t say where it was relative to the crest.  You can’t say whether you saw the whole car or half a car or whatever on the first occasion;  is that right?---  Not now with any – any confidence, I’m sorry.  I can’t swear on the Bible and say, ‘Yes, the car was at this point’, or, ‘No, the car was at this point’.  I just know the car was there.”  (t/s 44 lines 38‑45, line 42)

16. This evidence was said to demonstrate the plaintiff’s poor recall of the event and to reveal inconsistencies with his evidence‑in‑chief and show that he was likely to be making up the evidence about the car on the wrong side of the road.

17. Senior Constable Sinclair who happened upon the plaintiff lying on the side of the road shortly after the accident measured a 20 metre track from the flat section of the road at the end of the curve to the culvert which has been accepted as having been made by the plaintiff’s motorbike.  It travelled in a direct path from the road to the culvert.  The Nominal Defendant contends that this demonstrates a “drifting” off the road rather than an evasive movement to avoid colliding with an on‑coming vehicle on its incorrect side of the carriageway.  Mr Williams also challenged the plaintiff about the path of travel as shown in his s 37 notice but the plaintiff was then totally incapacitated in his limbs and the sketch was done by his then fiancée who also, erroneously, had the motorbike striking the eastern culvert.  She signed the form on the plaintiff’s behalf.  In any event, the sketch might be said, broadly, to support the plaintiff’s account as much as the theory proposed by the Nominal Defendant.

18. The plaintiff made a number of allegedly inconsistent statements about the circumstances of the accident to witnesses. Before turning to them, it is useful to consider the chronology at the scene.

19. Mr and Mrs Thomason were returning home to their property on the corner of Bellmere Road and Stern Road at the time the plaintiff was travelling along that stretch of road.  They were not interviewed by anyone about the accident until 2005 despite, as I find, that Mrs Thomason was at the scene near the plaintiff when Senior Constable Sinclair arrived.  As a consequence, their recollection has suffered from the passage of time. 

20. Mr Thomason stopped the family car opposite Stern Road with his right indicator on preparatory to making a right turn into Stern Road and then into their property’s entrance.  He was looking into Stern Road particularly because there were numbers of strawberry pickers who entered that road in the vicinity at some speed and he was keeping a good lookout to his right for them.  He heard his wife say something out loud and she told him to drive straight on which he did. 

21. Mrs Thomason had been looking ahead up Bellmere Road.  She saw a light coloured car on their side of the highway coming towards them fast about opposite the entrance to the property where the plaintiff came off his motorbike.  Whilst protesting that she was not good at estimating distances, she thought that when she first saw this motor vehicle it was 300 to 400 metres away.  She then saw a motorbike “whipped” into the air and someone come off.  Neither she nor her husband was able to recall the car passing their vehicle on the road nor, indeed, did Mrs Thomason connect that vehicle with the motorbike she saw in the air.  When pressed on this by Mr Williams on the basis that there must have been a time gap between the car on the wrong side of the road and the motorbike and driver seen flying through the air such that the pale car had already passed the Thomasons’ vehicle, Mrs Thomason was firm and confident in her oral evidence that that was not so.  Neither Mr nor Mrs Thomason had been aware of being passed by or seeing ahead the plaintiff on his motorbike.

22. In a statement Mrs Thomason gave in 2005 she had said in paragraph 17

“It is very hard to tell how long after I saw the car on the wrong side of the road that I first saw the motorbike.  I really cannot say if the car had passed us by the time I saw the motorbike for the first time, when it went up in the air.” (exhibit 11)

She explained that the person who took her statement had asked her the same question many times.  I am prepared to infer that although Mrs Thomason signed that statement she did not examine it minutely to see if it could bear the interpretation which Mr Williams contended for it, namely, that there was a significant time lapse between seeing the car on the wrong side of the road and seeing the motorbike and plaintiff in the air.  Mrs Thomason said that the Beachmere community was a small one and she did not hear of anyone being seriously injured in a motor vehicle accident and thought nothing more of it at the time. 

23. Mr and Mrs Thomason saw the injured driver lying on his back off the bitumen with his helmet visor down as they drove up to the scene.  They got out of the car and Mr Thomason spoke to the person lying on the ground but received no answer.  He then went to their property to telephone for an ambulance.  Before he could have done so, on Mrs Thomason’s estimation, a police car pulled up.  She thought the car was out on patrol and it contained two if not three police officers – two men and one woman.  On her evidence, the men walked past her as she stood near the plaintiff but without acknowledgment of any kind as to her presence.  Mrs Thomason was rather astonished at this attitude and that no effort was made to take her or her husband’s details when he returned.  On their evidence, they left before the ambulance arrived.

24. Mr Thomason confirmed that he left his wife at the scene, telephoned for an ambulance, returned and eventually left with her as the police did not seem interested in speaking to them.  The ambulance incident report (exhibit 17) records Mr Thomason as the caller for an ambulance at 12.23 pm on 14 July 1998 and identified the call as coming from the Thomasons’ home telephone.

25. It is necessary to mention this detail as Senior Constable Sinclair, who saw the plaintiff lying on the side of the road as he drove past on the opposite side, denied that any other person was present when he arrived. He said he spoke to the plaintiff and then returned to his car and called for an ambulance. The records and evidence show that this call was received immediately following that of Mr Thomason’s.  Senior Constable Sinclair recalled a man driving up, who was clearly Mr Thomason, and having a short conversation with him about an ambulance.  He said that man remained at the scene for a period and then left unaccompanied. 

26. Senior Constable Sinclair was, probably, focusing on the plaintiff and simply did not register Mrs Thomason’s presence even though she was quite close to the plaintiff and not an insignificant presence.  Mrs Thomason was mistaken in recalling two or more police officers.  No doubt Mr Williams was seeking to establish her general unreliability as a historian when suggesting that she was not present.  Both Mr and Mrs Thomason gave their evidence firmly and, I thought, fairly.  They were complete strangers to the plaintiff.  They had not seen the advertisement placed in the local newspaper about a month later by police seeking witnesses as they did not receive it at their property.  Mr Thomason mentioned a conversation to his wife that he had had with a solicitor acting for the plaintiff many years later in 2005 and they linked it to the event on 14 July 1998.

27. It is the Nominal Defendant’s position that the plaintiff concocted (or reconstructed) his evidence implicating the white car on the wrong side of the road after he was admitted to the Princess Alexandra Hospital when he was feeling depressed and suicidal about his condition.  This is said to be demonstrated because the plaintiff allegedly gave inconsistent accounts of what had occurred and/or had failed to mention the car to anyone prior to speaking to police at the Princess Alexandra Hospital on 30 July 1998.  The plaintiff said that he had little recollection of conversations at the scene of the accident or at the Caboolture Hospital where he was taken by ambulance. 

28. Mr Williams tendered the statement of Mrs Jai Menzies, the triage nurse on duty at the Caboolture Hospital when the plaintiff was admitted, by consent (exhibit 18).  Nurse Menzies (formerly Bowerman) swore

“On the 14^th July 1998, I was the triage nurse in the Emergency Department.  A Patient, Gary Read was brought into the Emergency Department on this day by the Queensland Ambulance Service.  The triage note I made indicates that the patient was travelling at 40 to 60 kilometres per hour around the corner and missed the bend and came off his motorbike.  I am unable to recall with any certainty whether this information came from the patient or the Queensland Ambulance Service.”

The plaintiff could not recall a conversation with Nurse Menzies.  The evidentiary value of her statement is slight when regard is had to her equivocation in the final sentence.

29. Dr Christine Waller is a specialist in Emergency Medicine.  She was on the staff at the Caboolture Hospital when the plaintiff was admitted.  She had some independent recollection of the plaintiff’s emergency admission in 1998 but was, not surprisingly, reliant upon her statement of December 1999 and addendum statement of 2003 (exhibit 20).  Those statements were prepared assisted by the hospital records.  Of particular relevance was the following passage in her statement

“He stated that he had been riding his motor cycle when he had lost control going around a bend and fallen off.  At the time of initial assessment, Mr Read was very upset.  He realised that he had suffered an acute spinal injury and that it was very likely that he would never be able to walk again.”

In her addendum statement Dr Waller added that she needed to assess the mechanism of injury to determine the likely extent of the injury and repeated the plaintiff’s above alleged statement.  Dr Waller added that she was particularly interested how the accident had occurred and whether the plaintiff had been involved in a collision with another vehicle although she did not recall specifically asking that question of him “particularly as he had said he had fallen off his motorbike”.  She was confident he had made no mention of another vehicle being involved during her discussions with him at the hospital or in the ambulance that afternoon when travelling from the Caboolture Hospital to the Princess Alexandra Hospital.

30. When Dr Waller was cross‑examined it became evident that the hospital notes, which had been compiled by Dr Hubbard, the resident medical officer, whilst purporting to be contemporaneous were in fact written at a time after the Caboolture Hospital had arranged for the plaintiff’s transfer to the Princess Alexandra Hospital and after the results of the xrays were known.  Those notes record, amongst other things, that the plaintiff was travelling at 60 kilometres per hour.  The letter written by Dr Hubbard on behalf of Dr Waller which accompanied the plaintiff to the Princess Alexandra Hospital stated unequivocally “no other vehicle involved”.  The letter stated that the accident occurred at 1.00 pm and that the plaintiff was travelling at about 60 kilometres per hour and that he was wearing a helmet.  It is highly likely that at least some information was provided by the Queensland Ambulance officers as they could estimate the time and had removed the helmet from the plaintiff’s head at the scene.  It is sufficiently uncertain as to whether the plaintiff conveyed the information “no other vehicle involved” to Dr Hubbard and/or Dr Waller or whether the information was derived from the ambulance officers or, indeed, Nurse Menzies to be cautious about it.  The plaintiff was described as lucid but upset and in pain.

31. Mr Louis Kereszteny was formerly the Police Service’s South Brisbane District Hospital Liaison Officer.  He spoke to the plaintiff at the Princess Alexandra Hospital in the spinal unit on 30 July 1998 about his accident.  He was particularly concerned to investigate any breaches of the traffic regulations.  He noted that the plaintiff had many attachments to his person and was attended to by nurses and was very upset.  He cut short the interview because the plaintiff was so distressed.  Senior Constable Kereszteny recorded in his notebook the following exchange

“Q.What caused you to have the accident?”

“A.I remember seeing a white car comming [sic] down the middle of the road and I veered to my left and lost control, I don’t remember anything else.”

“Q.What speed were you doing on that road that day?”

“A.I would have been doing the speed limit.”

32. The Nominal Defendant’s focus was on the use of the word “veered”, contended to be inconsistent with the straight trajectory of the motorbike identified from the marks on the road and the verge. Whether “veered” to the plaintiff implied a straight line of travel but off the bitumen or whether he meant, then, to convey a sharper angled turn is not able to be resolved now but the path drawn on the s 37 notice form a month later is consistent with the former meaning.  The word “veer” is also used in the plaintiff’s worker’s compensation statement taken at the end of August in a way not inconsistent with his oral evidence.  And Mr Williams’ use of “veering” in a question quoted in paragraph [33] below might be noted.

33. The plaintiff gave a statement to a worker’s compensation officer on 24 August 1998 whilst still in traction in the spinal unit at the Princess Alexandra Hospital.  After the statement was prepared from the officer’s notes the document was read over to the plaintiff and his father signed it on his behalf.  Some words have been deleted or added to the statement in the hand of the officer.  Relevantly, the following passage appears

“… On my way to see her I was involved in an accident.  I was riding a motorbike and along Bellmere Road about 6klm from the intersection of King St Caboolture.  I had come around a corner & was riding along a straight section of road towards the crest of a hill.  A motor vehicle came towards me ^ ^slightly on the wrong side of the road.  As the vehicle vehicle approached me, it veered towards me & I took evasive action.

I veered to my left to try to avoid a head on accident and was off the road for about 2 or 3 seconds when I hit a concrete culvert.  The car was a Magna I believe and it was travelling at an excessive speed.  He had to know that I had an accident but did not stop.  I estimate I was doing 75km/hr in this 100klm/hr zone.”  (exhibit 4)

34. The word “slightly” has been inserted above the words on either side of it and there is no gap between them. The plaintiff was unable to recall when the corrections were made to the document. At the time he said he was feeling suicidal about his injuries and would have signed anything “to get people out of me face” (t/s 42 line 48).  The plaintiff was given the opportunity to consider this statement and indicate what changes he would make to it.  The following was his response

“… Just this thing – like, this – with his [the worker’s compensation officer] interpretation of what was said or how he took it, or whatever, the part that ‘vehicle slightly on the wrong side of the road’ I’d change, and where ‘as the vehicle approaching it veered towards me’, it was veering towards me because it was two‑thirds on my – my side of the road anyway.

MR WILLIAMS:  All right.  So if you were making the statement today the word ‘slightly’ wouldn’t be there?---  Well – yeah, I’ve never had it slight on the wrong side of the road anyway, but this was his words.

And you would say that the vehicle remained a constant distance on it’s incorrect side of the road.  You’ve said about two‑thirds or so of the car was on the wrong side of the road.  Was that the way it was all the way?---  The – the vehicle – you can’t say – well, from what I can remember, it wasn’t directly – the line directly up the centre and the vehicle directly in the centre.  It was on the – on the angle towards – coming towards me on my side of the road two‑thirds.

So it was veering across the road?---  Yes.

All right.  Could you see any reason for the car to be in that position and veering across the road?---  Well, I don’t know.  Well, he was driving, not me.

The sentence before the one with the word ‘slightly’ in it reads, ‘I had come around a corner and was riding along a straight section of road towards the crest of the hill.’  Do you agree that’s accurate?---  No.  That’s not accurate.

Right.  What’s inaccurate about that?---  I was coming to a straight section of road but I wasn’t riding along a straight section of road.

Well – yes.  You see, the diagram drawn with the earlier document showed a straight section of road, didn’t it, the diagram drawn with the section 37 notice?  Do you want to see that again?---  I didn’t draw that diagram, sir, and if you’ve been to the accident site, you will see that once you’re – that – that corner, it is fairly straight where I leaned off to get out of his way.”  (t/s 43 lines 34‑44, line 20)

35. The Nominal Defendant contended that the plaintiff’s account of what happened ought not be accepted because he did not, immediately after the accident when describing what had happened, implicate the oncoming car which he said caused him to run off the road and hit the culvert. The plaintiff has no recollection of conversations with those who attended him at the scene of the accident or at the Caboolture Hospital.  Senior Constable Sinclair said the plaintiff spoke lucidly to him when lying on the side of the road and that the plaintiff made no mention of any other vehicle being implicated. 

36. Mr Wayne Kirk and Mr John Foster of the Queensland Ambulance Service attended the plaintiff at the scene and conveyed him to the Caboolture Hospital.  Mr Kirk was the designated patient care officer for that day.  He spoke to the plaintiff whom he described as alert.  When he gave a statement in August 1999 and again in oral evidence, Mr Kirk could not recall if he questioned the plaintiff as to how the accident happened nor if the plaintiff mentioned another vehicle. 

37. As a consequence of the assertion by the Nominal Defendant that the plaintiff had made no mention of a culpable motor vehicle immediately following the accident, Mr Ambrose sought to lead evidence from Mr John Foster that the plaintiff had mentioned the car at the scene.  Mr Williams objected to the admission of this evidence on the basis that it would constitute impermissible prior consistent evidence.  I overruled this objection identifying the facts in this case as falling within the principle enunciated by the several members of the High Court in The Nominal Defendant v Clements (1960) 104 CLR 476.  If Mr Foster’s evidence was admissible it would not be as proof of the fact but to re‑establish the plaintiff’s credit.

38. At the trial of the action in Clements, which had taken place more than four and a half years after the accident, the plaintiff was cross‑examined to show that he had no memory of the occurrence and that the account of it given by him in evidence was the result of coaching by his father who had written out answers for him to learn.  A doctor said in cross‑examination that six months before the trial the plaintiff had told him that he could not recollect the details of the accident.  To rebut the suggestion that the plaintiff’s account was an afterthought reconstructed for the purpose of the litigation counsel for the plaintiff tendered a statement about the accident obtained by a sergeant of police from the plaintiff two months after the accident and it was admitted. 

39. Although there is much that is valuable in the analyses of the exception to the evidentiary rule which makes prior consistent out of court statements admissible in the judgments of Dixon CJ at 479 to 490 and Menzies J at 484-485 and 486-490, a succinct statement of principle may be found in the judgment of Windeyer J at 494.  His Honour said

“The kind of imputations and allegations that – if sufficiently clearly made – will let in prior consistent statements are:  First, that the witness’s testimony is a recent fabrication, in the sense of being invented at or after a particular time.  Evidence that he had said the same thing before that time becomes admissible.  Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before.  Evidence that he had said the same thing before that time becomes admissible.  The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated.”

40. This passage was quoted by Doyle CJ with approval in R v Martin [1996] SASR 590.  There his Honour suggested that there was no clear statement in the judgments in Clements as to whether or not the basis for the admission of a self‑serving statement must be something made explicit by counsel in questioning the relevant witness or whether the basis might be something which is necessarily implicit in the questioning.  There may be cases where the subtlety of counsel in cross‑examination makes it difficult to conclude that counsel is laying a foundation for impugning the witness’s account of a material incident or fact as a recently invented, devised or reconstructed story, as observed by Dixon CJ at 480 in Clements.  With the greatest of respect to Mr Williams’ advocacy, his cross‑examination of the plaintiff was not so subtle that his purpose could not be readily discerned.  At trial transcript page 37 and following, Mr Williams put to the plaintiff that he had not mentioned the car to anyone at the scene of the accident and that he introduced it after he had had an opportunity to appreciate the seriousness of his injuries.  That line of cross‑examination plus the way other relevant witnesses were cross‑examined was such as to allow Mr Foster’s evidence to be admitted. 

41. Mr Foster was first contacted by the plaintiff’s representatives about a year prior to trial as to his recollection.  He denied that he was prompted in the sense of being asked whether he could recall an accident where a motor cyclist went off the road because another vehicle was involved.  He said he was asked for his recollection and wrote out a statement.  He said he had a good recollection of the accident and that it was quite vivid.  This was because before he got out of the ambulance he had “pretty well summed up” that the person on the side of the road had a severe spinal injury and not many jobs were so clear cut.  Mr Foster recalled having a general conversation with the plaintiff while he and Mr Kirk were treating him.  He and Mr Kirk were going backwards and forwards to get necessary equipment from the ambulance.  Mr Foster said

“Well, the main things I can recall him saying is that a car had forced him off the road and he was – he had been out to see his girlfriend, who worked on a strawberry farm.  He joined her for lunch, and I think he was heading back to work.  So that’s the things that I can recall him saying.”  (t/s 109)

Mr Foster made no note of that conversation because it was not relevant to the plaintiff’s condition but he was firm that he recalled it being said.

42. Mr Foster had given a statement to a person investigating the claim on behalf of the Nominal Defendant dated 19 August 1999.  In paragraph 5 he had said

“The patient was not asked what had occurred and a Police Officer was in attendance on our arrival.  There was a curve in the road at this location.  I think we assumed that the bike hit a drain off the side of the road.”

In paragraph 6 Mr Foster noted

“I recall the patient saying that he was on his way to have lunch with his girlfriend at a strawberry farm.  He did not discuss the details of the accident with me.”

Mr Williams tested the correctness of Mr Foster’s present recollection of his conversation with the plaintiff in light of the contents of paragraph 5

“And when the witness says, ‘He did not discuss the details of the accident with me’ – sorry.  When you say in your statement he did not discuss the details of the accident with you, you mean that he did not respond to any questioning or offer you any details of the accident?---  I mean we would have spoken to him while we were treating him, and these things would have just been said while we were at the scene.  I wouldn’t have asked him specifically, ‘How did it happen?’ because I knew how it happened.  I saw what happened you, know.  Well, I assumed what had happened.  So---

But when, ‘He did not discuss the details of the accident with me,’ would you regard something like being run off the road as a detail of the accident?---  I suppose so.  But, I mean, he may not even have been speaking to me at the time.  But as I say, it was – the only reason I can remember him saying it, that it sticks in my mind, is I thought at the time – being a bit cynical – that, you know, it’s always somebody else’s fault, sort of thing, you know.”  (t/s 113‑114)

43. Mr Foster had no connection with the plaintiff.  I accept that Mr Foster accurately recalled that the plaintiff had mentioned that a car had forced him off the road.

Conclusion on liability

44. That there are some inconsistencies in the plaintiff’s evidence over time and between his evidence‑in‑chief and cross‑examination are referable to a number of circumstances which do not impair his credit.  For some time he was in pain and shock after a terrible accident, the seriousness of which was steadily brought home to him.  He has no recollection of any conversations with anyone shortly after the accident.  Some of the inconsistencies are, in truth, semantics, for example, whether the plaintiff “veered” off the road and what that meant, or ran straight off the road.  His use of that expression will not alter the likelihood or otherwise of his assertion that he was compelled to take evasive action.  The path of the motorbike’s track, measured by Senior Constable Sinclair, may have commenced earlier in the curve had the plaintiff been travelling at excessive speed and failed to take the curve or not travelling with due attention to the topography of the road.  There is nothing inconsistent between the plaintiff’s accounts and the geography as can be understood from the photographs, the survey plan and the evidence of other witnesses of the scene. 

45. The recollection of Dr Waller must be largely discounted because there is a real possibility that the information conveyed in her statement as coming directly from the plaintiff to her may well have come from either of or both of the Queensland Ambulance Service officers or the triage nurse or from some assumption made by them. 

46. If the evidence of the plaintiff stood alone there might be some anxiety in accepting it although the plaintiff himself presented as an honest witness. This is because the evidence of the driver of the alleged offending motor vehicle was not available to give evidence of the circumstances, Van Muyen v The Nominal Defendant (Qld) [2002] QSC 344 per Mullins J at para 31‑34 and the authorities there referred to.  However, Mrs Thomason’s relevant evidence seems to me both reliable and corroborative of that of the plaintiff, namely, that at the time the plaintiff’s motorbike collided with the culvert a pale coloured car was seen very close by travelling on its incorrect side of the road and at an excessive speed.  There were no other vehicles on the road.

47. This is not a circumstantial case of the kind confronting Mullins J in Van Muyen where the plaintiff had no recollection of being injured and no witness could give direct evidence.  But even when the plaintiff’s evidence is carefully scrutinised, I am satisfied that on the whole of the evidence that more likely than not the plaintiff was forced to take evasive action due to the negligent (if not reckless) driving by the driver of a motor vehicle who after due search and enquiry, cannot be found.  The consequence was that the plaintiff’s motorbike hit an off‑road culvert and he sustained serious personal injury.

Contributory negligence

48. The Nominal Defendant alleges that the plaintiff contributed to his own injuries in any or all of the following ways

• travelling at a speed excessive in the circumstances;
• failing to keep any or any proper lookout;
• failing to keep his motorcycle under proper control;
• driving without due care and attention;
• failing to stop or slow down when a prudent motorcyclist would have done so in the circumstances.

49. In Green v Hanson Construction Material Pty Ltd [2007] QCA 260 at para 29 the Court of Appeal quoted with approval the definition by Professor Fleming of contributory negligence as

“… the plaintiff’s failure to meet the standard of care to which he or she is required to conform for his or her own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about the plaintiff’s injury.”

50. There is no evidence to support the allegation that the plaintiff was travelling at excessive speed for the circumstances then prevailing. As for the other particulars of contributory negligence, I accept the plaintiff’s evidence that he was an experienced motorbike rider, had his eye on the curve and was straightening up when confronted with a motor vehicle on its incorrect side of the road. In order to avoid a collision the plaintiff concluded that he needed to lay off to the left. He was confronted with a dangerous situation and took evasive action. He cannot be criticised for being unable to avoid contact with the culvert on the side of the road.

51. The Nominal Defendant has not discharged the onus of proof that the plaintiff was not taking proper care for his own safety when he took evasive action.

Order

52. It follows then that judgment should be entered for the plaintiff.

53. The order of the court is judgment for the plaintiff in the sum of $4,000.000.