Melenewycz v Whitfield

1. [1]

   The facts of this case could only have taken place in Australia. On 12 August 2011, the plaintiff was riding his friend’s motorcycle in a generally southerly direction on a red dirt road between Hungerford in Queensland and Bourke in New South Wales. The plaintiff commenced his journey in Noccundra and took lunch at Hungerford. He then set off for Bourke. Around 20 minutes later either he or his motorcycle (or perhaps both) was struck by a kangaroo. The plaintiff landed heavily on his right shoulder and has little memory of precisely what happened after colliding with the kangaroo. He believes that he lost consciousness.

2. [2]

   The road, known as the Hungerford Road, is an unsealed red dirt road typical of outback Australia. It is almost completely straight and quite wide. It was described as 20 meters in width with a clearing either side such that the clear width between the foliage on either side of the red dirt is between 23 and 32 meters. The scrub on each side of the road varies along the 200 kilometres between Hungerford and Bourke. The speed limit is 100 km/h. The road is “corrugated” and is “graded roughly every six months”. [1] The engagement between the plaintiff and the kangaroo occurred toward the end of that cycle. The road was last graded in “late March, early April” of 2011. [2]

3. [3]

   The plaintiff brings an action against the owner of the motorcycle and the third-party insurer (respectively the first and second defendants).

4. [4]

   Whether the plaintiff is entitled to succeed in his claim turns on the application of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”). That part makes provision for what are described in the heading as “no-fault claims”. In particular, the plaintiff calls into aid Division 1 (ss 7A -7I) which provides for “recovery for blameless accidents” (“Division 1”). In their amended defence, the defendants deny that it was a blameless accident and that the plaintiff’s injury was occasioned by a blameless accident. It further asserts that the plaintiff was negligent by riding at an excessive speed and by failing to keep a proper lookout.

5. [5]

   The case raises a difficult and moderately interesting question as to the construction of the relevant statutory provisions. That question is whether the blameless accident provisions can ever apply to a driver or a driver involved in a single vehicle accident. The defendants submit that they cannot and rely on s 7E which provides that a driver cannot recover damages under the Division where the collision “was caused by an act or omission of that driver”. Section 7E(2) makes a substantial modification to the common law concept of causation. I am told that the particular question of statutory interpretation upon which this part of the case turns has not previously been decided by this or any higher court. The provision has been subject to consideration by the District Court including by Judge Norton in Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89. The defendants contend that Connaughton was wrongly decided although I gather that it was not the subject of any appeal. In any event, the decision is not binding on this Court. The provisions have been considered by the Court of Appeal in a different context (namely the contributory negligence of a pedestrian who relied on the no fault provisions): Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36. The defendants also contend that Axiak v Ingram was wrongly decided but acknowledge that I am bound to follow that decision in so far as it is relevant to the questions that arise in the present case. Special leave to appeal to the High Court was refused on 15 March 2013: Ingram v Axiak & Ors [2013] HCATrans 64.

6. [6]

   If the defendant does not succeed on its statutory interpretation point, there are factual questions as to whether the plaintiff caused the collision with the kangaroo in the relevant sense and whether he was negligent in his riding of the motorcycle. Those questions turn on a consideration of the evidence given by the plaintiff and duelling experts called by each party as to the speed at which it was appropriate to ride in the time leading up to the kangaroo’s intervention in the plaintiff’s journey to Bourke.

7. [7]

   At the heart of the litigation is the question of whether the plaintiff was involved in a “blameless motor accident” as defined in s 7A and, if so, whether the defendant is liable for damages in view of the provisions in the sections that follow and in particular s 7B and s 7E.

8. [8]

   The evidence was relatively confined and consisted of a joint memorandum of agreed facts, the evidence of the plaintiff himself, expert evidence given by two engineers with expertise in motor vehicle accident reconstruction, a draft statement (unsigned) of the plaintiff and a number of records generated by the police to whom the accident was reported.

9. [9]

   The parties agreed that the question of liability should be determined first, with the damages to be agreed or assessed at a later date if the plaintiff establishes liability.

10. [10]

    In his statement of claim the plaintiff avers that the accident was a blameless motor accident. Section 7C of the MAC Act provides that such an averment is “evidence of that fact in the absence of evidence to the contrary”.

11. [11]

    The defendants put what was described as a series of cascading submissions. In written submissions at [99] the construction point was articulated as follows:

12. [12]

    On the facts of this case, and putting aside the question of whether a driver might ever avail themselves of the blameless accident provisions or whether the driver in a single car accident could ever so avail themselves, the defendants submit that the plaintiff caused the accident in the relevant sense. He did so by riding at a speed that was excessive in the circumstances and by failing to observe the kangaroo at an earlier stage. The defendants contend that those two propositions are related in that the plaintiff was more likely to see the kangaroo earlier had he been riding more slowly.

13. [13]

    The defendants submit (correctly) that it is not strictly necessary under the statute to determine that the plaintiff was at fault or negligent but only that his act or omission caused the collision. However, the defendants submit that the evidence establishes that the plaintiff was in fact negligent and failed to take reasonable care for his own safety.

14. [14]

    The plaintiff submits that the defendants’ interpretation of s 7E, and in particular the submission that the Division can never apply either to a driver or to a driver involved in a single car accident, is wrong. Further, the plaintiff submits that the evidence does not establish on the balance of probabilities that the plaintiff’s own act or omission caused the collision for the purpose of s 7E. That submission is more than a submission that the plaintiff was not negligent (a submission which, on the terms of the statute, would not be sufficient for the plaintiff to succeed). Rather, it is a submission that there is a difference between an act or omission that causes something to occur and an act or omission that is “a background fact which explains no more than why he was in a position where he could be” struck by the kangaroo: see Connaughton at [71].

15. [15]

    Relating that submission to the facts relied upon by the defendants as causing the collision, the plaintiff says that the fact that the defendant was riding at a speed of 90 to 100 km/h did not cause the collision with the kangaroo but rather created the coincidental circumstance whereby the kangaroo and the plaintiff collided at that particular time and place.

16. [16]

    The opaque terms of the relevant provisions and the ambiguity of the Minister’s Second Reading Speech – upon which Senior Counsel for both sides rely in attempting to make precisely the opposite point – create difficulties in resolving the issues. While the factual question of whether the plaintiff caused the collision and whether he was at fault or negligent in doing so are questions readily and properly resolved by a judge at first instance, the question of whether these provisions exclude drivers altogether (or drivers involved in single car collisions) is a question which will inevitably be resolved by the appellate courts (probably the High Court) in the absence of some clarifying amendment. Nevertheless, I have had the great advantage of thoughtful submissions by Senior Counsel appearing for each of the parties.

17. [17]

    For the reasons that I will presently provide, I have come to the conclusion that the defendants’ submissions should be rejected. There will be a judgment for the plaintiff with damages to be agreed or, if necessary, subject to further evidence and submissions. I will deal with the defendants’ submissions in turn and will recount the relevant parts of the evidence in doing so. I will commence with the defendant’s most expansive submission (which is the most restrictive in terms of the scope of the legislation) and finish with the submission that the plaintiff caused the collision and that, on any interpretation of the statute, the collision with the kangaroo was not a blameless or inevitable accident or, if it was, is one that is excluded by operation of s 7E.

Legislation

1. [18]

   It is necessary to set out some of the relevant provisions:

2. [19]

   Section 3 defines “fault” as “negligence or any other tort”.

Authorities in the District Court

1. [20]

   In Connaughton v Pacific Rail Engineering Pty Ltd, the plaintiff was driving a vehicle owned by the defendant when a tree fell on the roof of the cabin, causing injury to the plaintiff. The plaintiff sought damages under the blameless accident provisions. The defendants submitted (at [39]) “the plaintiff in this case is precluded from recovering because he was a driver and his act of driving was sufficient to attract the specific exclusion in s 7E as it is clear that Parliament never intended to cover drivers in single vehicle accidents.” Judge Norton considered the context in which the provisions occurred and found a textual reading difficult because the provisions “involve a departure from the rest of the Act in that they operate outside concepts of fault and establish a partial no-fault scheme, or more accurately, a deemed-fault scheme” (at [48]). Her Honour rejected the defendant’s submissions and concluded:

2. [21]

   In Hossain v Mirdha [2015] NSWDC 108, the plaintiff was driving a taxi when a dog ran in front of his vehicle. The plaintiff applied the brakes and steered the vehicle in an attempt to avoid hitting the dog. In doing so he collided with a stationary truck and suffered injuries. He sued pursuant to the blameless accident provisions and a preliminary hearing was conducted to determine whether those provisions applied in those circumstances. The defendant did not allege fault on the part of the driver [4] but submitted that his act of braking and steering caused the collision. As in this case, counsel for both sides referred to parts of the Second Reading Speech in support of their respective submissions. Judge Elkaim was not assisted by the excerpts relied on by the parties and also noted the absence of appellate authority. It seems that his Honour accepted the defendant’s submission that Connaughton was distinguishable on the facts because in the earlier case there was no relevant act (apart from driving) that could be said to have caused the collision. Judge Elkaim concluded:

3. [22]

   Nothing in either of those District Court decisions supports the proposition that a driver can never rely on the provisions of Division 1. Nor do they support the proposition that a driver injured in a single car collision is never entitled to recover damages under the division. The reference in Judge Elkaim’s decision at [28]-[29] to the possible outcome had the driver been injured by colliding with the dog (as opposed to actively steering the vehicle away and thus colliding with the truck) suggests that his Honour contemplated the possibility of recovery had the driver not taken the evasive action that caused the collision. It was critical to his Honours’ decision that the collision with the truck would not have occurred had the plaintiff not steered away from the dog.

Axiak v Ingram

1. [23]

   Both parties referred to the case of Axiak v Ingram. As I have said, the defendants submitted that the judgment of Tobias AJA (with whom the President and Sackville AJA agreed) is wrong. [5] In written submissions the defendant submitted that Axiak “should not be followed” although in oral submissions it was conceded that it was a binding authority.

2. [24]

   Axiak v Ingram was not concerned with the driver of a motor vehicle and did not address the question that arises in this case. Further, the plaintiff was a child and the matter fell to be determined under Division 2 of Part 1.2. Section 7K allows a claim even where the child is at fault unless the actions of the child constitute a serious offence and materially contributed to the death or injury. Accordingly, the decision should be treated with some circumspection in addressing the issue in the present case.

3. [25]

   The facts were that a child (the appellant) alighted from a school bus, darted behind the bus and then ran across the road into the path of the defendant’s car. She suffered horrendous injuries as a result. The appellant abandoned any allegation of fault on the defendant’s part and relied on the “blameless accident” provisions. The trial Judge accepted the defendant’s submission that the accident was caused by the fault of the appellant and that, for the purpose of s 7A, it was therefore caused by “the fault of any other person”. The trial Judge entered judgment for the defendant and the child plaintiff appealed.

4. [26]

   Tobias AJA undertook a careful examination of the statutory scheme having earlier observed at [1] that the “serious inconsistencies and/or anomalies” which prima facie existed in the MAC Act seemed to make construing the statute in accordance with the principles of harmonious goals [6] “at one point difficult to achieve.” His Honour accepted the appellant’s submission that the definition of “fault” in s 3 must be construed such that the word “other” was a “reference back to the word ‘negligence’”. [7] His Honour said that it was appropriate “to read the words of the relevant definitions into the substantive enactment and then construe the provisions so extended”. [8]

5. [27]

   The plaintiff relies on his Honour’s analysis to submit that the use of the word “fault” in s 7A is a reference to “tortious negligence” on the part of the driver. In the present case “the plaintiff did not owe the kangaroo a duty of care” and “he wasn't negligent because there was no damage suffered by anyone to whom he owed a duty of care”. Accordingly, the accident is a “blameless motor accident” under s 7A. This accords with the analysis of Hoeben CJ at CL in Nettleton v Rondeau [2014] NSWSC 903 where the Chief Judge explained the ratio of the decision in Axiak v Ingram with his customary clarity:

6. [28]

   As the defendants point out, Tobias AJA acknowledged at [64] that his construction of the word “fault” in s 7K was anomalous and the only example in the MAC Act of the word being used to mean “contributory or non-tortious negligence”. Accordingly, in considering s 7E(2)(a), the injury is “taken to have been caused by an act or omission of the driver” even if the act or omission “does not constitute fault” (that is, tortious negligence) on the part of the driver. In other words, a driver cannot succeed in a claim under Division 1 even if his causative act was not a negligent one.

7. [29]

   Axiak v Ingram does not resolve the fundamental question raised by the defendant in the present case. The judgment does not determine whether drivers are excluded from the operation of the blameless motor accidents provisions in Division 1. However, the analysis of the legislation generally, and the meaning of the word “fault” as it is used throughout the MAC Act (subject to the anomaly in s 7K), is instructive in considering the use of that term in both s 7A and 7E(2).

Davis v Swift

1. [30]

   In Davis v Swift [2014] NSWCA 458, Meagher JA noted at [3] that neither party had submitted that Axiak was wrongly decided. Each of the judgments suggested or implied aspects of the decision in Axiak might be reconsidered in the future with Adamson J observing that it was binding on the trial Judge. [9]

2. [31]

   Davis v Swift was not a case involving a claim by a driver and did not address the question of construction raised by the defendant in the present case. However, in terms of whether the accident was “blameless” Meagher JA provided an example at [34] which has some relevance to the present case:

3. [32]

   While that passage, and the example given in parenthesis, has some relevance to the question of whether an accident is “blameless”, it does not address the issue of causation, as that concept is modified by s 7E(2), that arises in this case.

Mamo v Surace

1. [33]

   For completeness, I refer to the decision in Mamo v Surace [2014] NSWCA 58. That case involved a collision between a car and a cow that ran onto the road at night. The passenger in the car was injured and brought an action for damages against the driver. At trial, the plaintiff alleged fault (negligence) on the part of the driver. No reliance was placed on the blameless accident provisions. The trial Judge found that there was no breach of duty and, if there was, the breach did not cause the injury. The Court of Appeal upheld those findings. On appeal, for the first time, the appellant sought to raise a case based on the blameless accident provisions and did so by reference (amongst other things) to the decision in Axiak. The Court of Appeal refused to entertain the argument. [10] Any observations made by McColl and Ward JJA as to the construction of Division 1 were necessarily obiter and, like Axiak and Davis v Swift, the case was not concerned with an action by the driver of a vehicle in single car accident.

Second Reading Speech

1. [34]

   I have considered the submissions of the parties that rely on things said by the Minister in the Second Reading Speech. I am unable to gain any assistance in an interpretation of the relevant provisions, or in resolving the present question, from what the Minister said. As I observed at the outset, the parties relied on the Second Reading Speech in support of diametrically opposed propositions.

2. [35]

   I respectfully adopt what was said by Elkaim DCJ in Hossain v Mirdha when confronted with similar submissions based on the Second Reading Speech:

Conclusion: Division 1 does not exclude drivers (or drivers involved in single car accidents)

1. [36]

   The authorities to which I have referred either do not decide the point directly or are not binding on this Court. The Second Reading Speech is ambiguous.

2. [37]

   I have concluded that the words in s 7E are capable of being understood on their plain terms and consistently “with the language and purpose of all the provisions of the statute” based on an understanding that the MAC Act, and the provisions of Part 1.2 in particular, “are intended to give effect to harmonious goals.” [11]

3. [38]

   With the exception of Part 1.2, the purpose of the MAC Act is to establish a scheme for the compensation of people injured in motor accidents where the compensating party (or their insurer) is at fault. Section 3A makes it clear that the Act applies only in respect of an injury that was “caused by the fault” of the driver. Part 1.2 is an exception in that it provides for compensation where the accident was “blameless”. It does this through s 7B which deems the death or injury “to have been caused by the fault of the owner or driver of the motor vehicle”.

4. [39]

   The defendants’ submission that a driver involved in a blameless accident is not entitled to compensation turns on a particular construction of s 7E. It essentially requires an interpretation that means that the very act of driving is a (but not necessarily the only) cause of the injury. It also essentially requires an interpretation that means that all of the words after “driver of a motor vehicle” in sub-s 7E(1) add nothing to the provision. That approach is contrary to the general proposition, oft repeated and emphasised in paragraph [71] of the judgment in Project Blue Sky, that “a court construing a statutory provision must strive to give meaning to every word of the provision.” [12]

5. [40]

   If the driver may never recover under the blameless accident provision, there need be no inquiry - otherwise required by s 7E(1) - as to whether “the motor accident concerned was caused by an act or omission of the driver”. [13] Further, the significant modifications to the meaning of the phrase “caused by the act or omission of the driver” made by s 7E(2)(a)-(d) are mere surplusage.

6. [41]

   Senior Counsel for the defendants submitted that by adding the words in s 7E(2):

7. [42]

   I should also refer to an argument advanced by Senior Counsel concerning the provision in s 7F that allows for a reduction for contributory negligence in the damages to be awarded to the plaintiff who was injured in a blameless motor accident. It was submitted that:

8. [43]

   I am unable to accept this submission. Section 7E(2)(c) would disentitle a driver whose act or omission was the cause of their injury even if it was not the sole or primary cause. As cases such as Axiak and Davis v Swift show, s 7F still has significant work to do in cases where a plaintiff (other than a driver) is found to have contributed to an otherwise blameless accident. It is not the case that a construction that allows a driver to obtain damages under Division 1, except when their act or omission was the cause of their injury, would render otiose the contributory negligence provision in s 7F.

9. [44]

   While there can be little doubt that s 7E is designed to place significant limitations on the circumstances in which a driver may recover in the case of a blameless accident, I am unable to conclude that the terms of the section mean that a driver may never recover under Division 1. Accordingly, I do not accept the primary submission advanced by the defendants.

10. [45]

    Equally, and for the same reasons, I do not accept the defendants’ second submission that the Division cannot or does not apply to any driver involved in a single car accident.

11. [46]

    In coming to those conclusions, I acknowledge that the facts of a particular case may give rise to a finding that the act of driving itself was the real and practical cause of the collision and injury. An example, taken from the criminal law, is where a person voluntarily drives a vehicle with the knowledge of the possibility that they may suffer a seizure or fall asleep while at the wheel. [16]

12. [47]

    The next alternative interpretation of s 7E advanced by the defendants is that the section “excludes all claims by drivers of vehicles (and riders of motorcycles) where for a measureable period of time, the act of driving continues between the happening of an event without which the motor accident would not have occurred, and the motor accident itself”.

13. [48]

    One only needs to formulate the matter in this way to recognise the unworkable nature of such an interpretation. The phrase “measurable period of time” is insufficiently precise to give real content to the provisions contained in s 7E. It is the terms of the section that need to be applied to the facts of the case rather than what is, with respect, a gloss on the provisions that the parliament chose to enact.

14. [49]

    The defendant finally submitted that the s 7E “excludes any claim by the driver of a motor vehicle or rider of a motorcycle except where the manner in which the vehicle or motorcycle is being driven or ridden is completely irrelevant to the occurrence of the accident. While this formulation and interpretation comes closest to reflecting the apparent legislative intention behind s 7E, it is not a substitute for an application of the particular words of the section.

15. [50]

    The terms of s 7E(2) make it inappropriate to apply ordinary principles of causation to the questions that arise. However, for the plaintiff driver to be excluded from the operation of the Division, their act or omission must have been the cause of the accident in the relevant, and very expansive, sense contemplated by s 7E. Causation under the section can be established even if the act or omission “does not constitute fault” (that is, tortious negligence), was involuntary, was not the sole cause of the injury and even if the act or omission “would [not] have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event.” [17]

16. [51]

    The plaintiff placed some reliance on cases concerning causation decided under the common law. For example, I was taken to a passage in R v Hughes [2013] UKSC 56; 4 All ER 613 where there was a discussion of “the distinction between ‘cause’ in the sense of a sine qua non without which the consequence would not have occurred, and ‘cause’ in the sense of something which was a legally effective cause of that consequence”. [18] There are many similar discussions by courts of high authority. [19] However, I accept the submission of Senior Counsel for the defendants that the legal backdrop to the case of R v Hughes (that is, attribution of criminal liability) is very far removed from that of the present case (that is, the deeming of fault in a provision creating liability for a blameless accident). The modification of the law of causation made by s 7E makes it impossible to apply such statements to an interpretation of the provisions contained in Division 1.

17. [52]

    Even allowing for these significant modifications to the concept of causation, I agree with the conclusion reached by Norton DCJ in Connaughton that the act or omission must be something more than an act of driving that “was no more than a background fact which explains no more than why he was in the position” where the accident occurred.

Omission in failing to see the kangaroo?

1. [53]

   A key part of the defendants’ case that it was the plaintiff’s act or omission that caused the collision with the kangaroo was based around the plaintiff’s evidence as to the manner in which he was keeping a lookout on the road ahead. Senior Counsel for the defendant challenged the plaintiff repeatedly, and quite appropriately, to the effect the plaintiff was focused almost exclusively on the road a short distance and directly ahead of him. The defendants relied on that part of the plaintiff’s statement that said “I was driving along a straight stretch of road looking directly ahead concentrating on my ride and the road ahead”. [20] However, in the same statement, the plaintiff went on to say:

2. [54]

   The defendants relied on the condition of the road and put to the plaintiff that his concern about the condition of the road meant that he was focussed on the road immediately in front of him and that he was not scanning the road ahead. An earlier, unsigned version of the plaintiff’s evidentiary statement said “the road was of bad quality”. [22] The plaintiff agreed in cross-examination that he would describe the road as being of bad quality. [23]

3. [55]

   The agreed facts assert that the when the plaintiff first saw the kangaroo, it was only around 20 metres ahead of him and about 6 metres to the right side of the roadway. [24] The expert evidence suggested that this may be an underestimate. However, the plaintiff maintained under cross-examination that the estimate was correct:

4. [56]

   The distance attested to by the plaintiff can only be an estimate and I allow for the possibility that it may well be an underestimate. Both experts agree that at a distance of 20 metres no human being would be capable of reacting either by braking, slowing down or swerving. The evidence does not allow for any conclusion as to the precise distance between the kangaroo and the plaintiff when the marsupial was noticed by the plaintiff.

5. [57]

   The defendant relied on the evidence of its expert who said that the combination of the speed at which the plaintiff was travelling (which the defendants say was too fast in the circumstances) and the plaintiff’s concern as to the condition of the roadway, meant that it was likely that the plaintiff was not scanning the verge or side of the roadway where wildlife might be located. The defendant’s case was that had the plaintiff been travelling more slowly, perhaps at 60 or 70 km/h, he would have been more likely to see the kangaroo at an earlier stage. The expert gave an opinion that the kangaroo “should have been detectable” from 100 metres [26] and that there was “a delay in detection for some reason”. [27] Earlier detection would provide a greater reaction time to take some form of evasive action. It was pointed out in cross-examination that there was an assumption involved in this evidence that the kangaroo was stationary in the moments leading up to the plaintiff noticing it. The plaintiff gave evidence that the kangaroo was stationary when he saw it but the evidence is necessarily silent as to the movements of the kangaroo before that moment.

6. [58]

   While the defendants’ challenge to the plaintiff was a strong one, the plaintiff did not deviate from his fundamental position that he was maintaining a proper lookout. It was not established through the plaintiff that his vision and focus was on the roadway directly, and a short distance, ahead of him. I do not accept that it was. I accept that the plaintiff, who is an experienced motorcycle rider, was maintaining focus on the road well ahead of him and scanning the roadway.

7. [59]

   I also accept the plaintiff’s evidence that the kangaroo blended with the background. The evidence on this issue was somewhat unsatisfactory, it being difficult to reconstruct four years later the precise colour of the foliage behind the kangaroo or even the colour of the kangaroo itself. The plaintiff was unable to say whether the kangaroo was of the red or grey species and his description of a four-foot tall kangaroo of a brown or grey colour does not allow that distinction to be made. There is evidence in the photographs tendered in the defendants’ expert report that shows shadows from the left hand side of the road were cast almost on to the roadway. That photograph was taken at about the same time of the year but at 11am. Senior Counsel for the plaintiff postulated in cross-examination of Mr Keramidas that at 2pm there may have been shadows on the right-hand side of the roadway. If that were so, the visibility of the kangaroo would have been further diminished. However, whether or not there were shadows at 2pm on the day of the plaintiff’s ride is a matter of speculation. The height of the foliage at the relevant time and place is not known and nor is the precise direction of the road at the place of the collision. The evidence is not sufficiently clear and cogent to come to any determination as to whether the kangaroo was in shadow as the plaintiff approached. However, the best evidence is the evidence of the plaintiff himself that the kangaroo was blending with the surroundings. I accept that evidence.

8. [60]

   I do not accept that the failure of the plaintiff to observe the kangaroo earlier and thereby take evasive action was a relevant omission that caused the accident for the purpose of s 7E.

The speed

1. [61]

   The defendants’ case is that the plaintiff was travelling at a speed that was excessive in the circumstances and that his act of driving at that speed caused the collision. The agreed facts said that he was riding at 90 to 100 km/h. The plaintiff’s evidence was that the speed at which he was travelling was safe and appropriate. He agreed in cross-examination that his unsigned statement said 95 to 100 km/h and that he may have being doing 100 km/h but that the best estimate was 90 to 100 km/h. [28]

2. [62]

   The experts gave conflicting opinions as to an appropriate speed for the conditions. For the purpose of preparing their reports, both of the experts travelled the road from Hungerford to Bourke in cars. As far as I am aware, neither of the experts was an experienced motorcyclist and neither undertook the journey on a motorcycle.

3. [63]

   The defendants’ expert, Mr William Keramidas said:

4. [64]

   In cross-examination, Mr Keramidas acknowledged that the italicised portion of the above quote was based on an erroneous understanding of the evidence and of the plaintiff’s familiarity and experience with the kind of motorcycle he was riding. [29] It is common ground that the plaintiff was an experienced motor cyclist and was very familiar with the type of motor cycle that he was riding (a BMW F650 GS Dakar) which was designed for similar conditions to those prevailing at the time of the accident. [30]

5. [65]

   Mr Keramidas’ opinion was that the optimal speed, providing a balance between safety and convenience, would be in the range of 60 to 70 km/h, while a prudent “driver” would not generally be expected to exceed 70 to 80 km/h. He said that at 80 to 90 km an hour the limits of control, particularly laterally, would be approached while at 90 to 100 km/h a two wheeled vehicle would be approaching an inherently unstable motion. These opinions are contrary to the evidence of the plaintiff. Nothing in the plaintiff’s evidence suggested that the speed at which he was travelling (90 - 100 km/h) created the kind of instability to which Mr Keramidas referred in his report. On the contrary, the plaintiff’s evidence was that driving at that speed created a smoother and more comfortable ride. Apart from the opinion of the defendant’s expert, there is no evidence that such instability manifested itself at the time or contributed to the plaintiff landing on the roadway.

6. [66]

   The plaintiff was an experienced motorcycle rider and had experience in riding the type of bike that he was using on this occasion. It is the type of motorcycle designed to be used on dirt roads. The cross-examination included the following:

7. [67]

   The plaintiff’s expert, Nigel McDonald, provided two reports. The first report was directed mainly towards reaction times and possible dangers in braking and swerving to avoid the kangaroo. His second report was mainly responsive to the report of Mr Keramidas. He “found a speed of 80-100 km/h to be comfortable and safe”. [31] He explained this opinion in various parts of his reports including:

8. [68]

   Mr McDonald also referred to the average speed on his own journey as follows:

9. [69]

   Over objection, Mr McDonald also gave some anecdotal evidence of his own experience concerning the visibility of kangaroos. That evidence was not based on a relevant area of expertise and, while I allowed it at the time, I have disregarded it in reaching my conclusion.

10. [70]

    I accept the evidence of the plaintiff (as an experienced motor cyclist and based on his perceptions in the time leading up to the collision) and Mr McDonald (as an expert) that the speed at which the plaintiff was travelling at the time of the accident (90-100 km/h) was unexceptional in the prevailing conditions. I do not accept the evidence of Mr Keramidas that travelling at that speed would have created lateral instability or diminution in control. There is no evidence that it actually did so and the plaintiff was steadfast in refuting the suggestion. The accident did not occur because of any instability caused by a combination of the speed and “rutting” or corrugation in the road surface. It occurred because the kangaroo crossed the road when it did and collided with the plaintiff. I accept that the “cone of vision” is decreased at higher speeds but also accept that the plaintiff was able to, and did, maintain a view of the road ahead.

11. [71]

    While it must be accepted as a matter of logic and common sense, that a slower speed creates a longer reaction time, the evidence does not lead to a conclusion on balance that a slower speed would have resulted in the collision not occurring. The obvious exception to that proposition is the fact that the speed at which the plaintiff travelled meant that he was in the location where the kangaroo ran into him at the time the kangaroo decided to bound across the road. However, even on the expanded concept of causation established by s 7E, that happenstance does not lead to a conclusion that the accident was caused by an act or omission of the plaintiff. As was pointed out by Senior Counsel for the plaintiff, on the same basis it could have been said that the actions of the plaintiff in not leaving Noccundra half an hour earlier caused the collision, or that the plaintiff’s decision to stop for lunch at Hungerford caused the collision, because he would have arrived at the place where the kangaroo crossed the road half an hour before the kangaroo. However expansive be the modified and extended concept of the phrase “caused by an act or omission” in s 7F, it does not go so far.

12. [72]

    I am satisfied that no act or omission of the plaintiff caused the collision or injuries. His actions leading up to the accident do no more than provide the background narrative by which he came to riding at the same time when, and place where, the kangaroo crossed the Hungerford Road and, in doing so, knocked the plaintiff from his motorbike causing him injury. The motor accident was blameless and the provisions of s 5F do not disentitle the plaintiff to damages.

13. [73]

    The amended defence asserted that the plaintiff was negligent. However, it appears to be accepted by both parties that the provisions of s 7F have no application in the case of a driver. Clearly, by operation of s 7E(2)(c), a negligent driver whose actions were at least partly the cause of their injuries would be disentitled to compensation. Questions of contributory negligence would not arise.

14. [74]

    For the reasons explained above, no act or omission of the plaintiff caused the collision. For the same reasons, the plaintiff’s riding of the motorcycle was not negligent. He was not riding at an excessive speed, did not fail to keep a proper lookout and was not otherwise negligent.

15. [75]

    For those reasons, I make the following orders:

    1. (1)

       Judgment for the plaintiff.

    2. (2)

       Defendant to pay the plaintiff’s costs on the issue of liability.

    3. (3)

       Parties to agree on damages or upon a timetable for the future conduct of the proceedings.

    4. (4)

       The matter is adjourned for mention on Friday 11 December 2015.