A motorbike rider is entitled to almost $1.2 million in damages after a motorist hit him on the Princes Highway and left him with a traumatic brain injury.
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Edwin Fletcher has been unable to work since a Ford ute driven by Marcus Neal struck his motorcycle from behind near Milton about 7.20pm on August 28, 2018.
The District Court heard a civil case for damages and had to determine whether Mr Neal was liable for the crash; whether Mr Fletcher had contributed; and what Mr Fletcher's most probable earning capacity would have been, had the crash not occurred.
On the day of the crash, Mr Fletcher - then 56 - and a group of motorcyclists were returning to Ulladulla from Wollongong when Mr Fletcher passed two riders who had stopped in the southbound breakdown lane.
He decided to turn around to see if they needed help so he turned right onto a side road, made a U-turn and rejoined the highway heading north.
Mr Fletcher gave evidence that he then stopped in the northbound breakdown lane and was waiting for a gap in traffic to rejoin the highway when Mr Neal's ute hit him.
One of the riders who had originally stopped, Cameron Wayte, said he saw Mr Fletcher's bike move slowly along the breakdown lane with his right indicator flashing, before the ute drifted onto the shoulder.
He then heard the collision and saw the ute move back onto the highway's lane. Both vehicles caught fire.
But in a statement, Mr Neal said Mr Fletcher had pulled out in front of his vehicle as he attempted to make a U-turn.
In his statement he also argued against evidence given by Mr Fletcher and Mr Wayte.
This adversarial tone, Judge Ainslie-Wallace said, suggested he was not giving a straightforward account of what happened and reduced the weight she gave to his evidence.
She said she preferred Mr Wayte's evidence as to what happened, describing him as a "dispassionate bystander".
Mr Fletcher and Mr Neal each sought accident reconstruction experts, both of whom agreed that a side-on collision had not occurred as suggested by Mr Neal's version that he hit Mr Fletcher as he made a U-turn.
It was suggested to Mr Fletcher that there was no reason he would ride 500 metres north and use a side road to turn and go back to the other two riders, rather than a U-turn.
But Mr Fletcher said he would never do a U-turn on a highway with vehicles going 100 km/h because doing so on a motorcycle was too slow, and there was the danger of falling in front of a car.
Judge Ainslie-Wallace said, given Mr Fletcher's experience, his evidence and the evidence of the experts, she was satisfied he had not tried to do a U-turn.
Expert evidence could not help Judge Ainslie-Wallace determine whether the point of impact occurred in the breakdown lane or on the road, but she said it was improbable Mr Fletcher had pulled out in front of Mr Neal, noting he was a careful rider who had never had an accident in his many years of riding.
She concluded Mr Neal had drifted into the breakdown lane and did not see Mr Fletcher there until it was too late to avoid a crash.
Judge Ainslie-Wallace found Mr Fletcher's motorcycle was well-lit and obvious in the breakdown lane, and if it were not for Mr Neal's negligence, the crash would not have occurred.
She also ruled that Mr Neal could not establish any negligence on Mr Fletcher's part.
Judge Ainslie-Wallace assessed Mr Fletcher's damages - including his loss of past and future earnings and superannuation, tax deducted from worker's compensation payments, and non-economic loss - to total $1.192 million.
Mr Fletcher's lawyer informed the court he intended to update some of the damages components, so both parties now have to agree on a final order that conforms with Judge Ainslie-Wallace's findings and submit it to the court by Friday.
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Natalie Croxon
Reporter at the Illawarra Mercury, mostly covering social affairs. Previously of the Bendigo Advertiser, Northern Daily Leader and Quirindi Advocate. Our Watch award winner.
Reporter at the Illawarra Mercury, mostly covering social affairs. Previously of the Bendigo Advertiser, Northern Daily Leader and Quirindi Advocate. Our Watch award winner.
