Hills v Raunio & Nrma Insurance Ltd & Silvicultural Services Australia Pty Ltd t/a Rl Newman & Associates [2003] ACTSC 5 (21 February 2003)

Last Updated: 25 February 2003

JAMES HILLS v SAM RAUNIO and NRMA INSURANCE LTD and

SILVICULTURAL SERVICES AUSTRALIA PTY LTD t/a RL NEWMAN & ASSOCIATES [2003] ACTSC 5 (21 February 2003)

CATCHWORDS

PERSONAL INJURY - motor vehicle accident - claim of brake failure - claim not established as balance of probabilities.

Supreme Court Act 1933, s 60A

Raunio v Hills [2001] FCA 1831, (2001); 188 ALR at 409

Jamison v The Government Insurance Office of New South Wales [1988] Aust Torts Reports 80-214

No SC 751 of 1996

Judge: Connolly J

Supreme Court of the ACT

Date: 21 February 2003

IN THE SUPREME COURT OF THE )

) No SC 751 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JAMES HILLS

Plaintiff

AND: SAM RAUNIO

First Defendant

AND: NRMA INSURANCE LTD

Second Defendant

AND: SILVICULTURAL SERVICES AUSTRALIA PTY LTD trading as RL NEWMAN & ASSOCIATES

Third Defendant

ORDER

Judge: Connolly J

Date: 21 February 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the defendants with costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 9 June 1995 when the plaintiff, who was riding a motorcycle owned by the first defendant (Mr Raunio), collided with a fence post near a forestry settlement near Burraga in New South Wales. The plaintiff sustained profound injuries as a result of the accident, and was rendered paraplegic. It is his case that he sustained his injuries as a consequence of the faulty nature of the brakes on Mr Raunio's motorcycle, and that both Mr Raunio and his employer, Silvicultural Services Australia Pty Ltd, the third defendant, were aware of the faulty nature of the brakes, and breached a duty of care by failing to warn him of the faulty brakes. The hearing of this matter was confined to questions of liability, counsel agreeing that, if liability be established, damages should be assessed at $1.55 million.

2. The second defendant, NRMA Insurance, was added to the proceedings at a time when there were issues concerning indemnity between the insurer and the first defendant, but these issues were resolved by a consent order entered by Crispin J on 8 April 1998, and so the second defendant has no further role as an independent entity in the proceedings, apart from its status as the insurer of the Mr Raunio, the owner of the motorcycle.

3. The matter was properly heard before me as Master, and the hearing extended over four days from 26 August 2002 and over a further two days from 2 December 2002. Since that time I have been commissioned as a Judge of this Court, but as the jurisdiction of the Master is in all respects co-extensive with that of a Judge, it is entirely appropriate that I deliver judgment in the matter. Moreover, s 60A of the Supreme Court Act 1933 expressly authorises a judicial officer whose term of office has expired, to deliver judgment in a matter heard before that term of office expired.

4. At the time of the accident the plaintiff was employed with a group of workers at a commercial pine plantation operated by the third defendant. He was engaged as a forestry field assistant, and his role was that of a labourer in the plantation, pruning pine trees to assist with their growth. The workers lived at a homestead on the property during the working week, and on weekends they were free to return to their homes. Their normal working hours were from 7.30 in the morning to 4.30 pm, but they worked on a quota system, and when they had achieved their tally of trees they could finish work for the day. It is common ground that on the Friday that this accident occurred the plaintiff had completed his week's tally at around 10 am.

5. The plaintiff and some of the other workers lived in Canberra, and a practice had developed whereby the plaintiff would drive a four-wheel drive vehicle owned by the company back to Canberra with the other workers after they had all finished on the Friday, returning with the crew on Monday morning. On the Friday of the accident the plaintiff, after finishing his quota, asked his supervisor, Mr G Henry, if he could take the company vehicle into town to obtain some cigarettes for his own use, and also to refuel the vehicle from the Burraga store, where the third defendant had an account, for the subsequent trip to Canberra. The town of Burraga is about 15 kilometres from the forestry camp, and involves a drive along an unmade road known as Moss Grove Lane, which connects to the bitumen road which connects Burraga to Rockley.

6. The plaintiff departed the forestry camp for Burraga in the company vehicle. Some time later two of his fellow workers, Mr Raunio and Mr Jiri Salonen, also finished their quotas and decided to ride their motorbikes while they waited for the plaintiff to return and make the trip back to Canberra in the company vehicle with him. Both Mr Raunio and Mr Salonen owned motorbikes, which were road registered trail bikes. Mr Raunio's bike was a Yamaha IT 490. Mr Raunio said that he had purchased the bike from a friend of his in Canberra, and took it to the job site. He described it as a powerful bike, capable of rapid acceleration. He said that it had a front brake operated by a lever on the front handlebar, and a rear brake operated by a foot pedal. He said that the brakes always worked.

7. It is common ground that Mr Raunio and Mr Salonen met with the plaintiff as he was driving back towards the forestry camp, and that they stopped and had a discussion, and, as a consequence, the plaintiff rode back to the camp on Mr Raunio's bike with Mr Salonen, while Mr Raunio drove the company vehicle. It is common ground that only the plaintiff was authorised to drive the company vehicle.

8. There is a conflict in the evidence as to where the meeting and vehicle transfer took place, and this is of some significance. The plaintiff says that he drove the company vehicle along the Rockley Road and turned off the bitumen road into Moss Grove Lane, and had travelled about 500 metres along Moss Grove Lane before meeting the other men on the bikes. He says he rode the bike then along Moss Grove Lane until the accident occurred. The significance of this is that it is apparent from the evidence, both from photographs (Exhibit A), a video film (Exhibit C) and a map of the area that there is a very sharp turn from the bitumen Rockley Road onto the unsealed Moss Grove Lane, and that the unsealed road is then fairly straight until a sharp turn just before the settlement. On the plaintiff's version he would not have had to apply the brakes on the motorcycle to any great extent before the accident occurred, as when he was on the bike he was on a relatively straight road.

9. Mr Raunio says that he and Mr Salonen had ridden down Moss Grove Lane and had turned into Rockley Road in the direction of Burraga when they met the plaintiff and the exchange took place. He says that he followed in the four-wheel drive, and he recalled observing the motorbikes slow down as they took the sharp 90 degree turn off the bitumen road onto the dirt road. The significance of this version is that, if the exchange took place as described by Mr Raunio, then the plaintiff would have had to have applied the front brake in order to execute this turn. Mr Raunio says that when he was riding the other way, he used the brake on this turn and there were no difficulties.

10. Mr Salonen gave evidence in the plaintiff's case, and his version of the meeting, it seems to me, supports Mr Raunio's version and is not consistent with the plaintiff's version. He was asked by Mr Capelin what had happened as they rode out of the front gate, and his evidence was (transcript page 205 line 37 ff):

"Well, we've ridden down the road, which I think there's around about 4 kilometres. It's a dirt road heading towards Burraga, you can turn when you get----

Sorry, just keep your voice up and a bit slower. --- When you get to the T intersection at the end of this four kilometre dirt road, you can turn right to go to Bathurst or left to Burraga. And I think we had only turned and got down the road, not even five, eight hundred metres before James came the other way and that's when James and Sam have had a conversation.

Just stopping there. Do you mean that you were - on what road- from - in what direction from the intersection of Moss Grove Lane and the Burraga Bathurst road were you when you met Mr Hills, James Hills?--- On the left side, going left.

So that means that you had turned out of Moss Grove Road? ---Yes.

And were on the Burraga Road?---Yes."

11. On this point I find in accordance with the evidence of Mr Salonen and Mr Raunio, and contrary to the evidence of the plaintiff, that the three men met on the bitumen road. It follows from this that the plaintiff rode the motorcycle back along the bitumen road, and made the 90 degree turn from the bitumen road into Moss Grove Lane on the return journey. Mr Salonen said that they were probably doing about 80 kilometres an hour on the bitumen road, and then had to decelerate to make the corner onto Moss Grove Lane, and I find that in order to do this it would have been necessary for the plaintiff to have used the brakes on the bike.

12. The extent to which the plaintiff was familiar with the operation of the bike is relevant to the pleaded case. The plaintiff acknowledged that he had ridden the bike before the day of the accident, and in his evidence acknowledged that it had exceptional performance and was very quick (T 129). Similar evidence about the performance of the bike was given by Mr Salonen (T 222) and Mr Raunio (T 260). In his evidence in chief the plaintiff acknowledged that he probably rode the bike three times on the pine plantation before the day of the accident. In cross-examination he maintained that he had ridden the bike on three occasions, and said that he could remember each separate occasion. He said that his use of the front brake on those occasions was "very minimal" (T 107).

13. The plaintiff tendered in his case a number of statements made by Mr Raunio. It will be necessary for me to go into the circumstances of these statements in some depth, but for present purposes their significance is that they confirmed Mr Raunio's oral evidence that the plaintiff had ridden the bike on numerous occasions, about a dozen in number. I note also that the plaintiff acknowledged in cross-examination that he had previously given incorrect instructions to his solicitors that he had only ridden the bike on one occasion, and that this was "merely a steer at the front of the house". He acknowledged in cross-examination that that statement was not true, and that it had been made in order to convey the impression that he was unfamiliar with the operation of the motorcycle and its brakes. It seems to me that the plaintiff has sought to minimise his involvement with the bike, and I take into account that this included his assertion that he had only ridden the bike on the day of the accident from a point on Moss Grove Lane. I am not satisfied that the plaintiff had ridden the bike on only three occasions before the accident.

14. It is appropriate to turn now to the mechanism of the accident. The plaintiff described this in his evidence in chief with the aid of a series of photographs in exhibit A. It is common ground that as a rider or motorist approaches the homestead it is necessary to reduce speed in order to execute a turn. The plaintiff said that he first applied the front brake at a point on the roadway approximately 200 metres from the accident site, which he identified by reference to photograph 3 in exhibit A (T 114, lines 26-29). He estimated his speed at this point at about 80 kilometres per hour (T 114, lines 31-32).

15. He says that he applied the rear brake at a point on the roadway identified in photo 6 of exhibit A, and says that he was again travelling at about 80 kilometres per hour. The first defendant was shown photo 3 of exhibit A, and on the assumption that the bike was there travelling at 90 kilometres per hour, said that it would be possible by reducing the throttle, going through the gears and using the rear brake to bring the bike to a halt before the accident site (T 283 lines 6-32). The difficulty, it seems to me, with the plaintiff's version of events is that if he first applied the front brake at the point he says he did, at the speed he says he was going, and had noticed some problem with the front brake, he should still have been able to bring the bike to a safe stop before reaching the point where the road goes through a gate, and where the bike hit the gate post.

16. The plaintiff's case as pleaded is that the front brakes failed when the plaintiff approached a right-hand bend in the road, resulting in the plaintiff colliding with a fence post. The precise nature of the failure has not been particularised, and the first defendant makes the point in submissions that in his evidence the plaintiff gave conflicting versions of the claimed failure.

17. In his evidence in chief the plaintiff said, "I applied the front brake, felt a little bit of resistance but not enough" (T 114, lines 34-37). Later in his evidence he said, "It was no - not enough resistance there. It just didn't seem to work enough." (T 116, lines 22-24). Again (at T 115, lines 33-36) he said, "After I applied the front brake there wasn't enough resistance there, so I went down again and then put the rear brake on". On each of these versions he describes the brakes providing some resistance as he applied them, but not enough. Later in his evidence, however, he described there being no resistance (T 117, lines 27-28). He said:

"I - when I applied the front brake I first went down a gear just before I applied the front brake and then I applied the front brake with my left hand. Now with the brake like that and especially on gravel road you don't just pull it all the way back. But what happened was I pulled a little bit back and there wasn't any resistance there so then I pulled it virtually all the way back and there was still no - no resistance there. Or not enough to pull the bike up safely and to get around that bend".

18. He gave a further account (T 122, line 45):

"I came up the crest, I went down a gear and coming into the corner which was the very top of the crest I applied the front brake. There was no resistance there. I went down another gear and applied the rear brake and then I laid the bike down."

19. These versions seem to describe a total absence of resistance, and this is consistent with his claim in cross-examination that "there was no resistance there" (T 135, lines 44-45), and that when he pulled the lever it came right back to the handle (T 163, lines 10-14).

20. The proposition that there was no resistance at all and that the lever came right back to the handle cannot be reconciled with the evidence of Mr Raunio that he had ridden the bike before and after the accident and had no problems with the front brake, and with the evidence of Constable Doherty, who attended at the accident scene. Constable Doherty said that he examined the motorbike, which had by this time been loaded into a trailer, and tested the clutch and brake levers, and felt tension in both. He said that he pulled the right-hand brake lever and it did not travel back to the handlebar, and appeared to tighten the brake. He maintained this in cross-examination.

21. Mr Raunio said that during his ownership of the bike the front brake had always worked, and never required a cable replacement. He said that the lever had never come back to the handlebars. He says that on the day of the accident he rode the bike down Moss Grove Lane and made the turn into the bitumen Burraga road and experienced no problem with the front brake. He says that after the accident, he rode the bike back to the camp, and the brakes were fine (T 272, lines 15-19). He was cross-examined on this point, it being asserted by the plaintiff that the motorbike was walked back to the homestead after the accident. Mr Raunio said at this point, "It's half a kilometre. It's about like half a kilometre and the motorbike weighs about 140 kilos, you're not pushing it ... Not for half a kilometre, no way" (T 323, lines 14-17). Constable Doherty said that he did not see or hear the bike being pushed or ridden back to the homestead, but was not paying attention to this at the time. I accept this evidence. He agreed that it was about 500 metres from the accident site to the homestead, and that this was at least partly uphill, and this, it seems to me, confirms the likelihood of Mr Raunio riding, rather than pushing the bike. It is not a matter of dispute that the bike was mechanically able to operate after the accident, and Mr Raunio gave uncontradicted evidence of the relatively minor repairs effected after the accident, which did not involve the brakes. The plaintiff acknowledged in cross-examination that he did not know of any mechanical explanation as to how the front brake of a bike could fail and then work again without intervention.

22. In addition to the conflicting versions of the nature of the brake failure given during the course of the hearing, varying between a total absence of resistance to resistance but not enough, the plaintiff acknowledged that there had been a number of other variations over time.

23. The defendants tendered an ambulance report compiled by Ambulance Officer R Lewis, who attended the scene. This stated "Pt (patient) on motorcycle. Speed unknown. Took corner too quick. Layed (sic) bike down and crashed into pole/fence" (Exhibit 1). In cross-examination Mr Lewis said that the words "took corner too quick" were the patient's words to him (T 255, lines 8-9). He recorded five full scores of 15 on the Glasgow Coma Scale during his attendance upon the plaintiff between 11.42 am and 1.15 pm which, he says, establishes that the plaintiff was alert and oriented at these times (T 248, line 25). Mr Lewis said that the plaintiff's history was taken before any drugs were administered because the history was considered important (T 251, lines 4-9).

24. There was no reference in the Ambulance Report to brake failure, and Mr Lewis had no knowledge of such a claim.

25. The plaintiff was transferred by ambulance to Bathurst Base Hospital, where the history is there recorded that he had come off the bike and slid into a tree. No reference appears in these notes to brake failure. He was then transferred by air ambulance to Royal North Shore Hospital, and again there is no reference in any of the notes to a claim of brake failure. One reference was read to the plaintiff from these notes which on the day after the accident referred to encountering an unexpected closed gate on a country road (T 139).

26. It was put to him that in a letter from Professor MD Ryan, a treating specialist, there was a history from the plaintiff that the front brake cable snapped. In cross-examination the plaintiff said that he did not believe that he had ever said this, and the doctor must have misunderstood him (T 139, lines 18-19).

27. There is a similar history in a report from Dr R Evans of 16 December 1998, which states that as the plaintiff slowed to turn into a gateway the front brake cable broke. The plaintiff said that he could not recall saying this (T 143, lines 29-30), and he maintained that the fact that both Professor Ryan and Dr Evans had recorded the same wrong histories was just a coincidence (T 144, line 9). In a later report of 30 November 1999, Dr WGD Patrick recorded a history which said "Mr Hills states that he was riding a Yamaha motorbike and was wearing a helmet. He was braking to go into a gateway when the front brake cable broke." The plaintiff said that he had no recollection of saying this (T 144, line 43) but acknowledged that it did seem like lightning striking three times, in that there were three identical, and acknowledged incorrect, versions of the accident being caused by a broken brake cable. It was not part of the plaintiff's case that the brake cable broke, and he acknowledged that a description "brake cable failed" would be incorrect (T 166, line 11).

28. In a signed worker's compensation claim form dated 25 July 1995 the plaintiff declared "Lost control of bike on bad gravel road surface. Front brake cable failed at the same time causing collision with fence post". The plaintiff acknowledged that this description, "brake cable failed" was a term that he had agreed was incorrect (T 167, line 10). This form asked the question "Who or what was responsible for the accident/injury?" and the answer given was "No road signs and bad surface". The plaintiff acknowledged that he had signed this form, although the answers were not in his handwriting. He says that this was not the cause of the accident.

29. In his evidence the plaintiff described his actions as he approached the gateway as attempting to apply the front brake with his left hand. He demonstrated this movement in court (T 116, lines 1-5, T 117, lines 30-38). He acknowledged in cross-examination that this was incorrect, and that on this bike the clutch was on the left side of the handlebars, and the front brake on the right (T 130). He acknowledged that if indeed a person in an emergency situation pulled hard on the left-hand lever they would experience no resistance and no braking effect, because they were pulling, not on the front brake, but on the clutch. Counsel for the defendant submitted that this could explain the accident.

30. It was common ground that the plaintiff, although he did not at the time of the accident and in fact had never held a valid driver's licence in respect of a motorcycle, had been riding motorbikes for many years, and had in fact owned a motorbike for about six years prior to the accident. He agreed in cross-examination that he would regard himself as a highly skilled rider (T 127, line 18). No issue was pleaded going to any negligence by the defendant in allowing an unlicensed rider to operate a motorbike, nor was this pleaded as an issue in contributory negligence. In cross-examination the plaintiff conceded that as an experienced rider he would, when riding an unfamiliar bike, test the controls to determine whether the brakes were working (T 126, line 31 ff).

31. In this case, as in all common law claims in tort, it is for the plaintiff to prove his or her case, and this involves adducing evidence to establish, on the balance of probabilities, the factual basis of the claimed tort. This case has been pleaded on the basis that the accident was caused by failure of the front brakes of the motorbike, and that the defendant knew of the faulty nature of the brake. The plaintiff can only succeed if he can establish both that the accident was caused by front brake failure, and that the defendant knew of the faulty nature of the front brake and was in breach of a duty of care in not warning him of the fault, or in allowing him to ride the bike with faulty brakes. I am not satisfied that the plaintiff has established the first essential element, that is, that the accident occurred due to front brake failure.

32. His evidence during the hearing was, it seems to me, not consistent, in that he variously described finding no resistance or some but inadequate resistance when he applied the front brake. He described the action of applying the front brake with his left hand, which he acknowledged was in error, as the left hand lever applies the clutch and not the brake. The evidence does not, it seems to me, reach the requisite standard of proof in establishing what in fact did, in his case, occur with the front brake. Even with the inconsistency between total absence of resistance or inadequate resistance, I also have the evidence of Mr Raunio that the brake operated adequately after the accident with no repair, and Constable Doherty, who applied pressure to both the brake and clutch levers had found appropriate resistance. The plaintiff acknowledged in cross-examination that he knew of no way in which a brake which did not offer resistance would then offer resistance without the intervention of a mechanic.

33. The plaintiff also has the difficulty that the contemporaneous records do not refer to any form of brake problem. This was a catastrophic accident, and was recognised immediately as such. The ambulance officer recorded a history that the plaintiff attributed the accident to taking the corner too quickly. He said that, although clearly seriously injured, he was at the time cogent. Mr Morris, for the defendant, made the point, appropriately, that one would expect in such circumstances that if there had been an obvious brake failure, which is now said to have been the cause of the accident, it would be expected to have been mentioned at the time. There is also the issue of the claim, recorded by three doctors who have reported in the plaintiff's case but denied by him as ever being a history given by him, of the brake cable snapping or breaking. On all the evidence, I am not satisfied that the plaintiff has discharged the onus on him of establishing that this unfortunate accident occurred as a result of some form of brake failure. On this basis alone I would enter a verdict for the defendants.

34. An important aspect of the plaintiff's case was two statements signed by the first defendant, Mr Raunio, which were said to amount to admissions that the front brake was faulty, and that Mr Raunio was aware of this fact. These admissions were tendered in the plaintiff's case as part of exhibit D. In a statement dated 28 December 1995 bearing Mr Raunio's signature it is stated, relevantly:

"I admit that, prior to the accident, the brakes on the motorcycle were in need of readjustment. Whilst I had knowledge of this fact prior to James' accident, I was yet to make the necessary adjustments. I had not told James of this.

....

The accident may have occurred due to the failure of the front brakes on the motorcycle. In the event that only the back brakes were operative, it is likely that the bike would skid when the back brakes were applied. In such circumstances, James would have been unable to steer the bike properly.

I rode the bike away from the scene of the accident back to the camp. I am unable to recollect whether I used the front brake during this journey. It is possible that I did not use the front brake.

Following the accident the following repairs were made to the motorcycle:

(a) exhaust pipe

(b) foot peg

(c) framework holding engine; and

(d) readjusted the brakes.

These repairs were minor in nature and conducted by me at home.

I am aware that James alleges that the accident was caused by the front brake cable becoming detached. I dispute this allegation. Following the accident, I did not buy a new brake cable, nor did I reattach the existing brake cable to the bike. As far as I am aware, no one else conducted any repairs to the bike following the accident."

35. In a subsequent statement dated 1 July 1996 and again signed by Mr Raunio it is stated, relevantly:

"I knew that the motor cycle's brakes needed readjustment. I could tell that the front cable was slack by riding the bike. When I pulled on the brakes, they worked but not as quickly as they should have done. The condition of the brakes were such that, in an emergency situation, the rider would not have been able to stop the motor cycle quickly. Adjusting the brakes is a simple task which involves tightening a knob and takes approximately 2 minutes. It was one of those things that I always intended to do but kept putting off until tomorrow.

On 9 June 1995, I had no hesitation in allowing James to ride the motor cycle. I knew that James had been riding dirt bikes for years and he had ridden the motor cycle approximately 12 times prior to the accident. It was because of James' experience that I had no problem with him riding the motor cycle on 9 June 1995. The fact that he had ridden the motor cycle on numerous previous occasions was the reason why I did not provide James with any warnings that the brakes needed readjustment."

36. On their face, these statements seem to lend significant support to the plaintiff's case, although in some respects, such as the assertion that Mr Raunio rode the bike from the accident scene and that the plaintiff had ridden the bike some 12 times prior to the accident, they are not consistent with the plaintiff's case. Mr Raunio, however, denies these statements as ever representing a version of events that he had given to the plaintiff's solicitors. He says that he had a conversation with the plaintiff's then solicitor, Ms Pearsall, in November 1996. Ms Pearsall made a record of this conversation. He says that he was subsequently asked by the solicitors to sign documents, which he did without reading them. He says that he just "signed the paperwork" (T 277). He denies that he ever made the statements in the nature of admissions, and says that the accurate version of what he told Ms Pearsall appears in the file note of the conversation of 27 November 1995.

37. This statement was not provided by the plaintiff to the defendant, and when its production was sought it was vigorously opposed. On 5 February 2001 I ordered, as Master, that Abbott Tout, as solicitors for Mr Raunio, and the NRMA were entitled to discovery of the file notes made by the plaintiff's solicitors, Colquhoun Murphy, on 27 and 30 November 1995. I formed the view that any privilege attaching to the conversation between Mr Raunio and the plaintiff' solicitors had been waived. This decision was taken on appeal to a Judge of this Court, who took the view that there had been no waiver. This decision was itself taken on appeal to the Federal Court, which held that no legal professional privilege attached to notes made by a party's solicitor of a conversation with an opposing party (Raunio v Hills [2001] FCA 1831, (2001); 188 ALR at 409). As a consequence, the notes were produced and formed part of exhibit D.

38. In the file note comprising the telephone attendance of the conversation between Ms Pearsall and Mr Raunio on 27 November 1995, it is recorded:

" Sam said that the section of road where the accident took place is very deceptive and quite difficult to negotiate.

The road goes over a crest and then turns into a gateway.

Whilst the gateway is visible from the crest, it appears to be much further away than it actually is and quite often drivers do not allow themselves adequate time to slow down to turn into the gateway.

Sam estimates that, when he saw our client driving the motor bike, our client was travelling at approximately 60-70 kph.

Sam believes that our client was travelling too quickly too(sic) turn the corner, realised that he wouldn't be able to slow down in time, laid the bike down and hit a stainer post.

......

Following the accident, the police arrived and the motorcycle was examined by police officers. The police told Sam that there were no apparent problems with the bike that may have caused or contributed to the accident.

As a result of the accident, the following repairs were made to the bike:

(i) exhaust pipe

(ii) foot peg

(iii) framework holding engine.

These repairs were conducted by Sam at home and he says that they were minor in nature.

Sam said that he rode the bike from the accident to the camp at approximately 40 kph and the brakes were fine. The bike had two sets of brakes - both front and back. The front brakes were operated by a lever on the handlebars and the back brakes were operated by foot. Sam said that both sets of brakes operated following the accident.

I put to Sam our client's version of the story that the accident was caused or contributed to by the motorcycle's brakes failing. In particular, our client believed that the brake cable had become detached from the bike. Sam disputed this. He said that the brakes were in working order both prior to and following the accident. Furthermore, it would have been necessary for our client to brake on numerous occasions prior to the accident taking place.

In short, Sam believes that the accident took place as a result of our client's negligence and not because of the defective condition of his motorcycle."

39. Mr Raunio maintained in his evidence this version of events, save that he says that at all time he maintained that the minor repairs were done not by him alone but with the help of a friend.

40. The statement is clearly quite contrary to the signed statement. It expressly denies that there were any problems with the front brake, and it says that the only repairs done after the accident were to the exhaust pipe, foot peg and engine frame. The telephone attendance record is quite contrary to the statement that was sent to Mr Raunio for his signature. The letter covering the statement signed by Mr Raunio on 28 December 1995 is dated 12 December 1995, and it does ask Mr Raunio to read the statement carefully and advise of any necessary amendments. It also says:

"In the event that negligence on your part is established and such negligence is found to have caused or contributed to James' accident, a damages award will be made in James' favour. There is compulsory third party insurance which will cover you against your liability.

In order to ensure that James receives some compensation for his injuries, we require your assistance and cooperation. Accordingly, in the event that you recall any further details relating to James' accident, we would be grateful if you would inform us of the same."

41. Mr Morris, for the defendant, was most critical in his cross-examination of Ms Pearsall of her decision to communicate directly with Mr Raunio when it was, as she conceded, apparent that his interests were adverse to the interests of the plaintiff, and indeed when it was apparent that the plaintiff would be bringing a claim for damages against Mr Raunio. Ms Pearsall was unable to provide any satisfactory explanation for the very significant differences between the version of events contained in her telephone attendance record, which, on its face, could not support any negligence claim against Mr Raunio, and the version of events contained in the statement sent to Mr Raunio. She suggested that her principal solicitor, Mr Lucas, may have had a conversation with Mr Raunio which gave rise to a different version of events. Mr Lucas was involved in the litigation, and was present in court throughout instructing, and Mr Morris, properly, made the submission that I could draw an adverse inference from his not giving any evidence to support the assertion that Mr Raunio had made admissions to him. Mr Raunio said he did not, and I am not satisfied that Ms Pearsall had any basis for varying the statement.

42. Mr Morris was very critical of Ms Pearsall for writing to Mr Raunio in the terms of the letter of 12 December 1995 and seeking to obtain a statement of admissions which would form the basis of an action against him. She conceded that this was her purpose, as is apparent from the covering letter.

43. It is clearly inappropriate for a solicitor acting for a person bringing a personal injuries claim to directly approach the alleged tortfeasor to obtain a statement. In Jamison v The Government Insurance Office of New South Wales [1988] Aust Torts Reports 80-214, Carruthers J said:

"... it should be stated in unequivocal terms that it is not appropriate, in my view, for a solicitor acting for a person making a claim for damages against the Government Insurance Office pursuant to sec 14(1) of the Act to confer with the owner or driver of the relevant vehicle in relation to the accident alleged to have given rise to the litigation. It was suggested during the course of argument that a practice is developing to this effect. If so it should cease immediately."

44. With respect, I fully endorse these remarks, and, it seems to me, that this case well illustrates the hazards of a solicitor dealing directly with an adverse party in litigation.

45. The letter covering the statement that Mr Raunio was invited to sign, a statement which in no way reflected the conversation recorded in the file note of the 27 November 1995 conversation, in effect advised Mr Raunio that the plaintiff, who was a friend of Mr Raunio, and who Mr Raunio well knew had been rendered a paraplegic by the accident, would only be able to receive a sum of damages if Mr Raunio assisted him, and advised Mr Raunio that he would not be financially exposed because he would be covered by the third party insurance. Ms Pearsall was cross-examined about this statement, and resisted the suggestion that the letter had this effect, until eventually admitting that it could bear that interpretation (T 67, lines 34-36).

46. Mr Raunio, in his sworn evidence, says that he did not read the statement before signing it because he assumed that the solicitor would have included in the statement the contents of their conversation. I accept this evidence. Mr Raunio was criticised by counsel for the plaintiff as not being a credible witness, but I accept his evidence that, as a forestry labourer, he simply signed the statement without reading it, although it does appear that he did correct the spelling of his name.

47. On all the evidence I do not accept that the statements signed by Mr Raunio and dated 28 December 1995 and 1 July 1996 are true, and I prefer the oral evidence of Mr Raunio, which confirms the truth of the original record of the conversation between Mr Raunio and Ms Pearsall of 27 November 1995. Ms Pearsall was unable to provide a satisfactory explanation as to how the December statement, which contains assertions contrary to the facts reflected in the 27 November record of conversation, came to be drafted.

48. On this finding, it follows that there should be judgment for the defendant, as the plaintiff's case was heavily dependant on the version of events contained in the so-called admissions, which I do not accept. The only other piece of evidence, which supports the proposition that there was any known fault in the brakes, was a statement of 10 August 1995 by Mr Henry, who was the site supervisor at the camp. This statement is not surrounded by the ethical difficulties of the statement obtained by the solicitors for the plaintiff directly from Mr Raunio. This statement, contained in exhibit E, was obtained in the proper manner, that is to say, it was obtained by the solicitors for the plaintiff from the solicitors for the defendant.

49. That statement relevantly states:

"Sam's bike has always had a defective front brake, it was down to about 10 per cent capacity. I would assume Ossie [the plaintiff] was aware of this because he had ridden the bike before and you would have only had to ride it to be aware of it."

50. Mr Henry was not called to explain this statement, and on its face the assertion that the bike has "always had a defective front brake" is inconsistent with the evidence of Mr Raunio and the police officer.

51. Mr Raunio did acknowledge in cross-examination that the front braking system on the motorbike, as it had been manufactured, was not optimal. It was put to him that that model of bike "was a type of model which was well-known to have a deficient front braking system". He replied:

"I don't know so much about being deficient, but it was a common practice for a lot of people who bought IT 490s to replace the front suspension with a later model bike so you could put disc brakes front on it ." (T 292, lines 30-34)

52. Mr Raunio acknowledged that his model bike, with front drum brakes, did not have as efficient a braking system as the later model bikes with the same engine that had a different front suspension and front disc brakes. Mr Raunio acknowledged that by replacing the front suspension and installing front disc brakes the braking "could be improved" (T 307, lines 6-8). Mr Capelin expressly disavowed making any claim for negligence based on a failure to upgrade from the manufactured braking system (T 307, lines 41-43), and this was clearly never pleaded. Mr Henry's statement, it seems to me, in the absence of any explanation from Mr Henry, is quite consistent with the evidence of Mr Raunio concerning the bike having a less efficient braking system than later model bikes, and this, as Mr Capelin acknowledged, does not found any claim in damages. Mr Henry's statement, it seems to me, does not assist the plaintiff's case. Moreover, Mr Henry also said in his statement that the plaintiff would have known of the condition of the brakes, and that he had "previously seen Ossie riding that bike around the property at high speeds, I would estimate at least 100 miles an hour". This is consistent with the defendant's evidence that the plaintiff had ridden the bike on numerous occasions and knew it well. Mr Henry offered the same explanation in his statement that Mr Raunio gave to Ms Pearsall, that is "it appeared that Ossie had deliberately laid the bike over because he was going too fast to negotiate the corner."

53. On all of the evidence I am not satisfied that the accident occurred due to any failure of the braking system on the bike. It follows from this that there should be judgment for the defendants. The case against both Mr Raunio and the employer depends upon the establishment as a fact that the accident was caused by a defect in the brakes, such defect being known to Mr Raunio, who, it is said, breached a duty of care by failing to warn the plaintiff of the defect in the brakes when lending him the bike. It is pleaded against the employer that it breached its duty in allowing the plaintiff, an employee, to ride a bike with brakes that it knew to be defective. Both breaches of duty depend upon there being established a brake defect, and this has not been established.

54. It follows that there should be judgment for the defendants, with costs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 21 February 2003

Counsel for the plaintiff: Mr P Capelin QC with Mr B Meagher

Solicitor for the plaintiff: Colquhoun Murphy

Counsel for the first and second

defendants : Mr LM Morris QC with Mr M McDonogh

Solicitor for the first and second defendants: Abbott Tout Harper & Blain

Counsel for the third defendant: Mr R Williams QC with Mr S Pilkinton

Solicitor for the third defendant: Hunt & Hunt

Dates of hearing: 26, 27, 28 and 29 August 2002 and 2 and 3 December 2002

Date of judgment: 21 December 2003