Suvaal v Cessnock City Council S384/2002 [2003] HCATrans 663 (4 April 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S384 of 2002

B e t w e e n -

ANTHONY PETER SUVAAL

Appellant

and

CESSNOCK CITY COUNCIL

Respondent

GLEESON CJ

McHUGH J

KIRBY J

CALLINAN J

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 APRIL 2003, AT 10.03 AM

Copyright in the High Court of Australia

MR G. O'L. REYNOLDS, SC: May it please the Court, I appear for the appellant with my learned friend, MR D.R. CONTI. (instructed by McClellands)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D.T. MILLER, for the respondent. (instructed by Moray & Agnew)

GLEESON CJ: Mr Reynolds, have you and Mr Jackson made the agreement as to time foreshadowed by Justice Gaudron?

MR REYNOLDS: Yes, we have, your Honours. We have agreed between ourselves that I am to have one hour and 20 minutes, including my reply, and that Mr Jackson is to have one hour and 10 minutes, subject, obviously, to the Court's convenience, but that is the agreement which we have reached.

GLEESON CJ: Thank you. Yes, Mr Reynolds.

MR REYNOLDS: Obviously, your Honours, I only have a short time today. I hope that each of your Honours has a copy of our written submissions.

KIRBY J: Not only have them, read them.

MR REYNOLDS: The reason I ask that is that I want to take a slightly unusual course. I want to use these written submissions effectively as the basis of my oral argument and take your Honours through the written documents so that I can make my submissions within the appropriate time. I want to track through the document fairly closely. I will not read your Honours the statement of issues, or anything in the first three sections. Can I take your Honours briefly to the facts as we have stated them in section 4, the narrative statement of relevant facts. We have attempted to set out the facts there in a non-argumentative form.

Your Honours will see that the basic findings of the master are not that complicated. Essentially, my client went on a bike ride. He was a cycling enthusiast. He left his home at about 4 o'clock. He went up to a town called Heaton, along a road called the Quorrobolong Road. He turned around and commenced his return journey.

At a particular point he commenced what was described as a speed section, which was due to be about 15 kilometres. He got about 13 to 14 kilometres along the way and the accident occurred about 1.5 kilometres short of the end of that speed section, where your Honours will note he was travelling at about 25 miles per hour which on my rough calculation is about 40 kilometres per hour.

We note in paragraphs 4.9 and 4.10 that at the time of the accident he was travelling on the left-hand side of the road as close as possible to the edge of the road but out a bit to avoid the potholes at the edge, and he was travelling at this stage in a northerly direction. What then happened, according to the findings of the master, was that he diverged into the potholes as a result of a loss of concentration - - -

KIRBY J: Now, in 4.10 you state that as a fact, but that was the conclusion of the master. It was never the statement of your client in his testimony, was it?

MR REYNOLDS: No, your Honour.

KIRBY J: He propounded the theory of the missing car.

MR REYNOLDS: The parties, I believe, are ad idem on that point. There was no direct evidence from my client to that effect. The only evidence is circumstantial and I will be submitting in due course that it is a fairly obvious and available inference in all the circumstances. But what happened was - - -

KIRBY J: The thing that concerns me, though, from the point of view of the appellate restraint of the Court of Appeal is that if it was never stated by your client, then at some stage you will have to explain how the protections of Abalos and the other line of authority attached to it. If it is merely an inference from the facts, then on one view it is as open to the Court of Appeal to draw inferences in an appeal, paying due respect to the judge and so on, or the master, as it is for the primary judge, if it is a matter of inference as distinct from a matter of assertion believed by the primary judge.

MR REYNOLDS: Your Honour, I accept that I do have to deal with that and I will be attempting to do that in due course. But just to respond to your Honour briefly, since it is a matter that your Honour is concerned about, we submit that there is no difficulty with the primary judge disbelieving the plaintiff on an aspect of his evidence, then drawing a conclusion based on obvious circumstantial evidence as to a matter upon which he gave no evidence. That is what I will be submitting in due course, particularly where there is a reasonable explanation for his failure to give evidence of loss of concentration and that is that, to his mind, the accident was caused by the unidentified motor vehicle.

So that if one is talking about drawing inferences from the way the case was presented, no inference can be drawn from the fact that he gave no direct evidence on the point, we say, because there is a reasonable explanation for that, namely that his version was that there was an unidentified motor vehicle.

If I can just pause for one moment, if your Honours are interested in that as a matter of legal principle as opposed to just assertion by me on the facts, one way that my learned friend might have pitched his argument on this point - it is not in the written submissions but he might have done it this way - is to say that where a witness gives evidence and he could have given evidence on a particular point and he fails to give that evidence, an inference may be drawn that no evidence that he could give on that point would be favourable to him.

That is a proposition of law which is to be found not yet as I understand it in any decision of this Court, but there are authorities which support that proposition elsewhere. It is a derivative of the principle in Jones v Dunkel but the point that I want to make presently is this, that just as the principle in Jones v Dunkel is subject to reasonable explanations or the failure to call a witness so this principle, if my learned friend relies upon it, is subject to the existence of a reasonable explanation for him not giving evidence. Here the reasonable explanation is that it was his bona fide belief apparently, because he was not found to be a liar, that there was another motor vehicle involved.

KIRBY J: Yes, Justice Gaudron made that point in the special leave. She said that the fact that he did not establish the point does not mean that it is untrue; it is a logical fallacy.

MR REYNOLDS: Quite, it is a non sequitur to say because he did not give evidence on that point, it cannot be found as a matter of fact. It can be. I mean a lot of nominal defendant cases are compensation to relative cases where the victim of the accident is not around to give evidence. That does not mean that inferences cannot be drawn from the facts.

CALLINAN J: But, Mr Reynolds, how does the respondent have an opportunity to deal with this case? In a sense, the case was invented, with all due respect, by the master. There is almost a natural justice point here. How can the respondent possibly deal with what is an entirely different scenario and different case?

MR REYNOLDS: Your Honour, can I say a few things about that. First of all, that is really a matter which arises by way of a notice of contention, rather than for me to deal with as part of my submissions in chief. I am not taking up a purely formal point; I am just explaining something. Secondly, if there was any breach of natural justice of the kind that your Honour has just mentioned, it would be nothing short of astounding that my learned friend's predecessor, Mr Rofe, failed to take that point in the Court of Appeal.

KIRBY J: Are you suggesting he is always alert to natural justice?

MR REYNOLDS: Your Honour, I am suggesting that he is an experienced counsel who would not miss a point that is as blindingly obvious as that.

CALLINAN J: You will need a better response than that to persuade me, Mr Reynolds.

MR REYNOLDS: I have one, your Honour, and that is this, that when my learned friend in due course mounts his argument on that point I will, in response to that, take your Honours to various segments in the written submissions where this point was raised by both Mr Bartlett, who appeared for the nominal defendant, and my learned friend's predecessor also dealt with that. Just to anticipate things a little, what essentially happened here as a matter of forensic tactics on the part of the nominal defendant was that the Council suggested to the master that even if the case against the nominal defendant failed, there was a way of the plaintiff's case succeeding against the other defendant, namely, the Council.

Mr Bartlett in his submissions pointed that out and told the master in the written document that it would be possible to make that finding. When your Honours see in due course Mr Bartlett's written submissions, your Honours will in effect see the whole basis for the master's judgment set out in them. So the short response, and perhaps the response I should have made first to your Honour Justice Callinan's question, is that, with all due respect, it is nonsense to suggest that this issue was not argued at the trial and, second of all, the assertion that it was not pleaded.

CALLINAN J: I was going to ask you where we find it in the pleading or in an amended pleading. Do we find it there?

MR REYNOLDS: Your Honour, I am happy - - -

CALLINAN J: I do not want to take you off your - - -

MR REYNOLDS: With respect, your Honour is - - -

CALLINAN J: Come to it when it is convenient, Mr Reynolds.

MR REYNOLDS: I would like to deal with this in reply. My learned friend has to establish that this was a case not open on the pleading. Your Honours perhaps will have some response to that argument and I will reply, if your Honour pleases, in due course on that issue.

McHUGH J: You can always rely on the passage in the joint judgment in Williams v Smith 103 CLR, where five members of this Court in a joint judgment said in that case that the jury was not required to accept either party's case but was entitled to take a view somewhere between the two of them.

MR REYNOLDS: Quite.

McHUGH J: I am just looking for the passage.

MR REYNOLDS: That of course assumes that no party advanced this argument. What I am saying is in fact this was an argument advanced by the parties. Picking up what your Honour Justice McHugh said to me, there is an equivalent statement somewhere by Lord Wilberforce where he said, apropos of judges of tribunal of fact, that judges are able and do in fact think for themselves.

McHUGH J: The passage is at page 545 where it is said:

It was indeed a case in which the very divergent views of the parties might be compared by the jury and they might work out for themselves a view of the case which did not exactly represent what either party said. That is a possibility in such cases as this which every court of appeal must contemplate - - -

MR REYNOLDS: So that if this was an appeal from the jury, I would be able to implead that principle and still hold onto the judgment in my client's favour.

CALLINAN J: It is just a general verdict by the jury, is it not?

MR REYNOLDS: Yes, it would be. As your Honour appreciates, it is a bit easier to defend a jury's finding of fact than a judge's with reasons, but may I move on. Your Honours will see there basically how the accident happened. I will be coming to that in more detail later.

What happened is that the plaintiff skewed to the left into the potholes and then skewed all the way over to the other side of the road and ended up in a ditch on the right-hand side of the road, if I can put it that way. We note that the accident occurred about 5.30 pm. This was a summer evening, so there is no question about darkness being a relevant factual matter. If I go then to the next section where we set out the reasoning of Justice Giles - - -

KIRBY J: Could I ask, just to get it clear in my mind, were there in effect four hypotheses: the missing car; the potholes; the fact that he was riding on the wrong side of the road anyway and lost control; or the filing of the bar, the handles; and the snapping of that as a result of that action. Can we put three and four completely out of mind?

MR REYNOLDS: Your Honour, can I try and deal with that? As your Honours appreciate, the running of a common law trial is not always conducted by isolating precisely four hypotheses early on in the proceedings, but as an ex post facto analysis of what occurred can I put it this way? Your Honour is right, there were four hypotheses. The first hypothesis was that Mr Suvaal - this is what Mr Rofe said - was, in fact, travelling on the other side of the road where he ended up, and the master rejected that.

KIRBY J: Yes.

MR REYNOLDS: So that is the first hypothesis gone. The second hypothesis was the involvement of the unidentified motor vehicle, and that was rejected. That effectively leaves two hypotheses; what I have called the potholes hypothesis and secondly, the normal riding hypothesis. Apropos those two hypotheses, if your Honours go to page 4 of this document we set out at paragraphs 5.3 and 5.4 what these two hypotheses were. One is that the final overload fracture of the bicycle stem and loss of steering control occurred after and because the plaintiff went into the potholes. In other words, the potholes caused the break in the stem.

The second inference is that the final overload occurred while the plaintiff was simply riding along normally along the roadway and the divergence into the potholes was a consequence of the bike stem breaking while he is proceeding normally along the highway. We make the point in paragraph 5.5, the obvious point that if the potholes hypothesis is made out, the plaintiff wins on the issue of causation. If the normal riding hypothesis is correct, he loses because the break in the stem would not have been caused by the potholes and that means the Council would not be liable.

Now, having referred to those two possible inferences, and we say that this passage I am about to take your Honours to is most significant, what Justice Giles held, and I will give your Honours a reference, at appeal book page 1947, is:

the circumstances appearing in evidence . . . do no more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture.

We respectfully submit that, in what I will call a general sense, that is a fair summation of this case. It was what I will call a 50:50 case. Both of these hypotheses are open. They are both possible. They are both probable, even, and it was going to be touch and go as to whether the plaintiff succeeded. That is why Justice Giles referred to Holloway v McFeeters which is a case there was but exiguous evidence which was capable of tilting the balance in favour of the plaintiff's hypothesis.

Justice Giles then goes on to say that in his view the roadway hypothesis was more probable and, as we have said, the other two judges agreed with him. What we have done in these submissions is to try and set out what we submit are six errors and we have done that at page 14, paragraphs 8.2 to 8.7, so your Honours have the list, I hope in reasonably precise terms, of the errors which I seek to establish.

I am going to deal with those errors slightly out of order for reasons I will make clear in a moment. The first error and the fundamental error, we submit, is what we have called in shorthand, a failure to comply with the principles in Abalos and related cases. The key propositions that we advance are set out there in paragraphs 5.12 and 5.13. The submission, first, is that the Court of Appeal set aside a finding of fact by the trial judge which was based to a substantial degree on the credibility of the plaintiff as a witness.

Those are not our words we have used in that paragraph. They are the words which are found repeatedly in the Abalos line of cases in this Court. Can I give your Honours a brief reference to the use of those words in the decision of State Rail Authority of New South Wales v Earthline Constructions [1999] HCA 3; (1999) 73 ALJR 306. The relevant passage is at page 307. In the second column about three lines down is a quote from Devries and the words your Honours will see are:

If the trial judge's finding depends to any substantial degree on the credibility of the witness -

That is where we get the words in paragraph 5.12 from. We then attempt to identify the finding which was set aside and that is the pothole hypothesis finding, that is, the bicycle stem broke when the bicycle hit the potholes and rough edge of the road. That was a finding which the Court of Appeal overturned.

KIRBY J: Just let me understand, that finding would have been consistent with the mystery car hypothesis, that the car appeared and caused your client to go into a pothole that caused the stem to break.

MR REYNOLDS: Yes.

KIRBY J: Was that his proposition or not?

MR REYNOLDS: That, with respect, is an important point because it was part and parcel of my client's case always that the bicycle stem broke when he hit the potholes, so if I can put it in common parlance, the Council was always going to be in the frame on this case, even on the plaintiff's version of events, which was always that although the motor vehicle is what caused him to veer, the stem did not break until he hit the potholes. So what Mr Milne, who was my predecessor at the trial, was trying to do was, if I might put it in the vernacular, he was trying to nail both these defendants and say that the veer was caused by the unidentified vehicle - that ropes in the nominal defendant - but that the break in the bicycle stem was caused by hitting the potholes.

So that aspect of the case was always part of the plaintiff's case. What the master has done is rejected a portion of his evidence and accepted another portion of his evidence. It is not as if we are running on this potholes point a case which is inconsistent with his evidence. Now, I am asserting in these sections of the submissions that - - -

KIRBY J: Could you show me either now or at some convenient time that part of the plaintiff's own evidence where he indicated that it was the hitting of a pothole that caused the stem to snap even though he was suggesting that there was a car involved. Justice Heydon is pointing to page 46 at the bottom.

MR REYNOLDS: Can I try and come to that in due course.

KIRBY J: Because I indicated at the beginning my problem with the Abalos line of territory is that if your client's case was that he was escaping or avoiding a car and that is rejected, then you are in the realm of inference and appeal courts can do that as well as trial courts, subject to some considerations.

MR REYNOLDS: I have to establish this proposition I have articulated in paragraph 5.12 and if I establish that proposition then I submit I come under the aegis of the Abalos principles. What we have done is extract two paragraphs - - -

KIRBY J: There is no doubt on page 46 - I have read it now - that your client did say that he "bounced" into a couple of potholes "and then went on the rough edge of the road", so on his motor car belief he definitely said that it was bumping into the potholes that caused the anticlockwise motion.

MR REYNOLDS: If I take your Honours then to these two paragraphs which we have set out at page 6 which shows the finding of fact based upon an acceptance of the plaintiff's credibility. The master says:

It is my view, and contrary to the second defendant's submissions, that the preponderance of credible evidence establishes on the balance of probabilities that the plaintiff hit potholes which caused the change in the direction of the steering of the plaintiff's bicycle. I also accept that after the plaintiff hit the potholes he went onto the rough edge of the road. In the accounts given by the plaintiff of how the accident occurred he consistently mentioned the loss of control of his bicycle, the handlebars collapsing and the steering giving way. I accept the plaintiff's account that he caused his bicycle to go into potholes or hit patches and the rough edge of the road. His bicycle bounced two or three times. The tar in the potholes may have sunken in but he knows that he hit potholes. The handlebars of his bicycle turned anti-clockwise and at that point he lost control of the steering.

Then the finding that is made later on in the judgment is:

"It is my view that to cause the final fracture there needed to be two single overloads and a final overload fracture and it was more probable than not that these overloads occurred when the plaintiff's bicycle hit the potholes and the rough edge of the western side of the road. The plaintiff's bicycle hitting uneven potholes and the rough edge of the road caused the final fatigue fracture in the head stem and the consequence was that the plaintiff lost control of the steering mechanism of the bicycle and fell, suffering spinal injuries which resulted in quadriplegia."

We submit there that it is clear from those passages that the master's acceptance of the plaintiff's evidence that he lost control of the steering after hitting the potholes was critical in her determination that the final fracture was caused by the potholes. That is fairly obvious, we submit, that if you have somebody who is a cyclist and his perception is that the loss of control of the steering occurred when he hit the potholes then that is good evidence to suggest that the break in the bicycle stem occurred, as the master says, at that point. She accepts his evidence then that when he hit the potholes that is when he lost control of the steering. That is why this finding of fact that the stem broke when the bicycle hit the potholes is, we submit, irretrievably bound up in an acceptance of the plaintiff's credibility on that point.

Now, there are further observations which we have quoted about the plaintiff's credibility in paragraphs 5.20 and 5.22. I will not read those to your Honours, but, importantly, she did not find the plaintiff to be an untruthful witness and obviously devoted close attention to those aspects of his evidence which should be believed and those which have not.

Now, in that situation, we submit that if the Court of Appeal was going to overturn that finding, they need to confront this difficulty in terms and confront it directly. We point out in paragraph 5.25 that the person - - -

KIRBY J: Can you just help me on this, on the missing car theory; did the master say she did not believe the plaintiff or simply that she was not convinced that there was such a car? How did she express the - - -

MR REYNOLDS: The latter, and this is important, she did not find that he was a liar. She just said she was not persuaded by his evidence on that topic and the master did not speculate about why it was that he may have believed that there was another vehicle involved. I mean, I can suggest all sorts of possibilities, including the fact that he had been unconscious and was in hospital and with pethidine and the like; there are all sorts of possibilities. The master did not speculate, but she did not find that he was a liar and that was a core portion of Mr Wright's case at the trial. To implode this case, he wanted a finding that the plaintiff was a liar in various respects and then sought to implode the whole case through that submission and that primary basis of running the Council's case at the trial did not succeed.

Now, there are two initial observations I would like to make about this Abalos submission we are making. The first is that there is no reference at all in the Court of Appeal's judgment to Abalos or any of these cases, or to the fact that they are reversing a finding of fact based on the credibility of a witness. The third thing I would like to say is that your Honours will recall that I talked earlier on about Justice Giles describing this as what I said was a 50:50 Holloway v McFeeters point, a case which is touch and go either way or where the plaintiff could not succeed because the balance of evidence in favour of the two hypotheses was left in a state of equipoise.

The reason that I remind your Honours of that is that that whole type of analysis, I submit, is altogether different from the sort of analysis of the facts one would expect in an Abalos case. Abalos talks about findings of fact which are "glaringly improbable" and language of that kind and yet here is Justice Giles in his judgment saying, "Well, this is a difficult 50:50 case, is it not?" That, I submit, rather underlines the difficulty that my learned friends are going to have in defending this judgment on Abalos grounds.

Now, having made that submission, I need to point out to your Honours what we understand to be the possible ways of bringing this judgment into line with the principles in Abalos, and we do that on page 8 of our submissions. We attempt to front up to two possible analyses of the judgment which might bring it into conformity with the principles in Abalos. The first suggestion we make as to how the judgment can be read in conformity with Abalos is to focus - and this is in paragraph 5.31 - on Justice Giles' statement that there is:

"no foundation in the evidence for the Master's finding of lapse in concentration".

We say that if that is read as an assertion that the finding of loss of concentration is "glaringly improbable", then that indirectly amounts to an assertion that the potholes hypothesis is itself glaringly improbable. Why? Because lapse of concentration is a part of that hypothesis. So fronting up to that difficulty, or attempting to do so, we submit that the true reading of Justice Giles' judgment is that he does not assert at all that the potholes hypothesis is glaringly improbable. What he says, really, is that it was a 50:50 case or one where he was prepared to find, in the Court of Appeal, that the other hypothesis was more probable, but not that the potholes hypothesis is glaringly improbable.

The other way that we attempt to bring the judgment into line with Abalos is to focus upon the fact that Justice Giles agreed with Justice Rolfe, and what he said was that after compiling his own judgment he read Justice Giles' judgment in draft, so this is a - - -

HEYDON J: Justice Giles read Justice Rolfe's and then he added something at the end.

MR REYNOLDS: Yes, I am sorry, your Honour. I accept the correction. I apologise for that. So we say that - - -

KIRBY J: You just had a momentary lapse of concentration.

MR REYNOLDS: Your Honour, it happens all the time, even for those familiar with their task.

KIRBY J: What did Justice Rolfe say?

MR REYNOLDS: Justice Rolfe did say something which is consistent with Abalos because he said that the finding of unintentional divergence into the pothole was "totally improbable". Well, that will probably conform with the principles in Abalos. It is not just glaringly improbable, it is totally improbable. Can I point out that Justice Giles' agreement with Justice Rolfe, which is to be found in the appeal book at page 1947, is - in paragraph 17 he says:

Since writing the foregoing I have had the benefit of reading the further observations of Rolfe AJA in draft.

So this is what I will call an afterthought agreement rather than being central to the reasoning which his Honour adopted independently. So I have to attempt nonetheless to deal with Justice Rolfe's assertion that this finding of loss of concentration, which is inherent in the potholes hypothesis, was totally improbable. To do that I want to move to one of the back sections of our submissions, namely at page 11 paragraph 5.57. What I want to submit here is that it is very, very, very difficult indeed in this case to submit that there was no foundation in the evidence of the finding of loss of concentration or, adopting Justice Giles' phraseology, that that finding was totally improbable.

McHUGH J: Did the plaintiff give any evidence about his condition? One would assume that on this speed section riding at 25 miles per hour the lactic acid would be building up in his muscles, interfering with the oxygen supply and affecting concentration. I mean it is a well-known phenomenon. I do not know to what extent we can take judicial notice of it. It is certainly something I am well aware of. Is there any evidence from him concerning these matters?

MR REYNOLDS: We checked yesterday whether there was any evidence, for example, that he was tired, and there was no direct evidence from him on that point.

KIRBY J: You did quote something in the written submissions that he liked the flow of air, or something, past him. I think that is why he liked that straight stretch. I read that - - -

MR REYNOLDS: At any rate, we say that there is a matrix of circumstantial evidence here which meant that this finding of loss of concentration was easily open, on the evidence.

GLEESON CJ: For how long had he been riding at speed before this accident happened?

McHUGH J: Fourteen kilometres, was it not?

MR REYNOLDS: Thirteen and a half at 25 miles an hour. We did list these facts here. Can I just summarise them compendiously before I go to the detail? The first is that he is travelling very close to the potholes to begin with; the second is his speed, 25 miles an hour; the third is the distance that he has travelled; the fourth is the roughness of the edges of the road; the fifth is the repetitive nature of his task; the sixth is the time that he spent altogether on the bike and the seventh, although this is put against us, is his very familiarity with this road and this task and we say that when you view all the evidence on those points in the aggregate you could not possibly say that a momentary loss of concentration for a split second at 25 miles an hour is glaringly improbable - glaringly improbable. We list all this evidence here - - -

McHUGH J: Is this 13 to 14 kilometre speed section flat or did it have hills in it, do you know?

MR REYNOLDS: I think there is the odd undulation but this particular section, I should say, was dead flat, so I cannot say that he is negotiating rises or something like that.

McHUGH J: Yes.

MR REYNOLDS: Nor, as I have said before, do I say that there was darkness or poor visibility. I do not say that. So we list all of these factors and the evidence supporting them, or the findings, in this section. The potholes are located at the edge; that he was travelling only, as he said, out a bit. Can I just pause on paragraph 5.63 because at appeal book 1767 there is mention, too, of the plaintiff being "out a bit" and being "about 2 foot".

One of the things which the respondent does in its written submissions is to try and create a consistent margin of at least two feet from the edge of the roadway. The point that I want to make is that it is around about 2 feet. It is "out a bit" but one cannot say that he never veered within the 2 foot margin towards the edge of the road. We mention his speed, the distance that he travelled and the findings about the rough edges of the road, the edge breaks, the edge drops, that he had been riding for about 1.5 hours.

At paragraph 5.70 we respond to the only thing that Justice Giles raises on this issue, namely, that the plaintiff was an experienced cyclist familiar with the road and that you can therefore, on the basis of that alone, and I interpolate ignoring all the other circumstantial evidence, find that unintentional divergence into the potholes is unlikely.

We submit that familiarity with the road and experience as a cyclist is at best equivocal on this issue. As I understand it, there are a lot of cases in the industrial context of people who are expert at a particular task and familiar with it and engage in doing it repetitively and that is a matter which contributes to a loss of concentration and it is a matter which employers have to guard against.

McHUGH J: Lord Wright said so in Caswell v Powell Duffryn and I think the same point was made by Justice Windeyer in Meani v Sungravure.

MR REYNOLDS: In the face of this well-established principle in the area of employers' liability, this is the only matter that Justice Giles points to and he, with respect, ignores all of this very, very obvious circumstantial evidence which clearly negatives, I submit, a finding that loss of concentration is glaringly improbable. The true analysis is as Justice Giles himself said. It is a 50:50 case and the plaintiff has to get something to take him over the line. Given that there is an Abalos finding, it is not possible, we respectfully submit, to say that loss of concentration is glaringly improbable.

CALLINAN J: Mr Reynolds, I know what Abalos says, I know what is held there, but there is no reference to section 75A of the Supreme Court Act, is there, in Abalos? How do you get out of section 75A of the Supreme Court Act that, if I might say so, rather narrowing approach to appeals on questions of fact for which Abalos apparently stands, bearing in mind that there is no reference to Kendall's Case in it, or indeed to a number of passages in Warren v Coombes.

McHUGH J: Warren v Coombes had nothing to do with the case. That was why it was not referred to in Abalos. Warren v Coombes was an inference case and Kendall's Case, if it is all read, will be seen to be totally in accord with what was decided in Abalos. The reason courts have laid down these restrictive rules is because, as Justice Isaacs pointed out in Dearman's Case, they do not have all the evidence before them. A significant part of that evidence is the demeanour of the witnesses, and Justice Kirby referred to that in his judgment in SRA.

CALLINAN J: The significance, I thought, of Warren v Coombes was that it did refer to section 75A of the New South Wales Supreme Court Act and it did discuss generally the appeal under that section, albeit that it was an inference case.

MR REYNOLDS: Your Honour, could I say this, I hope directly to your Honour's question in a direct response? What your Honour raises really is that there is an argument - your Honour suggests a quite respectable argument - that there are problems with the decisions in this Court in Abalos, in Devries, in SRA v Earthline Constructions and the like.

Can I for the sake of argument concede that and say this, that it really would be incumbent upon my learned friend Mr Jackson to try and have those cases overruled. I think at least a couple of them were appeals from New South Wales. If he wants to do that and pick up your Honour's suggestion, seek leave to have this principle overruled, then at that point I will try and essay a response to his submissions. At the moment the short answer to your Honour's proposition is this: until such time as Abalos and like cases are overruled, that argument that your Honour has just put to me is not open to my learned friend.

CALLINAN J: Unless Abalos is distinguishable, and I might say Justice McHugh at page 178 of Abalos referred to the fact that there had been an in-court demonstration in that case. It seems to me that that was a relevant matter to the decision of this Court.

MR REYNOLDS: With your Honour's leave, I will wait to see how my learned friend - - -

CALLINAN J: Yes, see what Mr Jackson says.

MR REYNOLDS: - - - picks up your Honour's suggestion.

McHUGH J: This discussion reminds me of lines that T.S. Eliot attributes to Thomas Becket in Murder in the Cathedral: men learn little from other's experience; each generation has to learn the same lesson over and over again.

MR REYNOLDS: Indeed, that is the very matter that your Honour Justice Kirby pointed out in Earthline Constructions which is that although I stand here today as a representative of my generation, referring to Abalos, each generation of practitioners has had its own Abalos Case in the High Court since very early on after Federation. So it is a very well-established principle. It is not as if, if I can add to my answer to your Honour Justice Callinan, this is some doctrine which emerged fresh from the head of Zeus in the 1990s. It has a very long line of antecedent authority.

CALLINAN J: It may do, Mr Reynolds, but how you can decide a case and state a general proposition in relation to appeals without discussing and even referring to the statutory provision under which the appeal is brought which confers a general appeal, at the moment I do not fully appreciate.

MR REYNOLDS: Your Honour, as I say, I will leave it there and wait to see how my learned friend develops this point.

KIRBY J: In New Zealand last week I was told that the High Court of Australia decision which is most used in the Court of Appeal of that country is SRA. It is quoted all the time. SRA in a sense tries to reconcile the Warren v Coombes, Abalos and other decisions on the stream of this Court and to find a place in the total schema of the section of the Act, the duty to the Act, the principles in Warren v Coombes to conduct a rehearing, but the deference to the trial judge including in matters of credibility. You have to be consistent with all of these streams and put them together in a coherent way. That is I think what SRA says. SRA is a very important decision and it is a great pity it was not reported in the authorised reports. It was one of Mr Jackson's big wins.

MR REYNOLDS: Well, he is going to be throwing that sort of argument again today I suspect, your Honour. Can I just note, your Honours, that I am running into a little bit of danger here because I have only got, as I understand it, about 25 minutes to go, so I am going to need to get a bit of a move on here in dealing with the remainder of my points.

Before I leave this point I would like to draw your Honours' attention to paragraphs 5.71 and 5.72. It is only a small point, but I submit an important one, and it is this, that in determining whether there was evidence of loss of concentration the court cannot leave out of account the evidence that makes the potholes hypothesis itself more probable. That is because the potholes hypothesis involves a finding of loss of concentration, therefore any evidence which makes the potholes hypothesis more likely will, as a matter of logic, make the finding of loss of concentration itself more likely. That is the spring back, if you like, into the other submissions that I want to make about this particular case, in particular that - - -

KIRBY J: Is that a necessary logic? Is there not a possibility that the plaintiff could have hit a pothole because he was riding too fast or enjoying himself too much, or it is not a loss of concentration, it is maybe an attention - - -

MR REYNOLDS: Those scenarios, if I may say so, involve loss of concentration. That is the point I am trying to make. Going into the potholes, on this hypothesis, inevitably involves loss of concentration. So, for example, the plaintiff's evidence that that is when he felt the steering go is also indirectly evidence of loss of concentration - - -

GLEESON CJ: One of the things you are trying to concentrate on is keeping your bike on a smooth surface.

MR REYNOLDS: Indeed. So, I mean, it is not a complicated point, but I say it is a significant one. So can I move back then to the other areas we have attempted to identify. I will try and move through this fairly quickly.

HEYDON J: Mr Reynolds, this is intended to be a helpful remark. I have personally have read these submissions about four times and referred to all the evidence and I am sure other members of the Court are equally familiar with the material or probably more so, but I do not think it is necessary to take us through it line by line.

MR REYNOLDS: Your Honours, I am happy to take whatever direction your Honours give me on this issue and, indeed, if this is what your Honour Justice Heydon is suggesting and your Honours are fully - - -

HEYDON J: It is an opportunity to highlight things, but I think we are fairly familiar with the structure of your submissions and the - - -

KIRBY J: And I might say they are good submissions on both sides. They really present the problem to us.

MR REYNOLDS: I do apologise, your Honour. I would not, if I may say so, normally just read portions, but we have tried to do this because of the time limit so that I do not have to chase every reference in the appeal books. Can I then, taking up, I hope, the invitation that your Honour Justice Heydon has extended to me, just briefly highlight the points that I want to make in these other sections.

In the paragraphs beginning at 5.37 we highlight what we say are three errors in Justice Giles reasoning. The first is that he did in fact make a direct finding as to what the plaintiff said at paragraph 5.46. Secondly, we say that he relied upon it. Thirdly, we say that he was entitled to accord weight to it.

Can I just make one comment about paragraph 5.48 and it is this, that there is what I will call a duality in the master's reasoning. By that I mean that when one looks at the basic way the master decided it, what she did - and this was picked up in Mr Bartlett's submissions - is she, in effect, said "Well, look, I have to decide this very difficult 50:50 case. How am I going to decide it? I am going to rely on the statements which the plaintiff made pretty well straight after the accident and I am going to base my findings on those because my commonsense tells me that those statements are likely to be the most accurate ones about what happened because it is immediately after the accident when the recollection is fresh. There is no opportunity to rationalise what happened or for people to tell him perhaps what he ought to be saying or what they think happened", and that is the key reason why the master rejected the plaintiff's evidence as to the involvement of the unidentified motor vehicle.

GLEESON CJ: Because of what he did not say.

MR REYNOLDS: Because of what he did not say and - - -

KIRBY J: But that was only hypothesised a week or so after the accident.

MR REYNOLDS: Indeed, but the important thing about Senior Constable Barber's evidence is that it shows that this evidence I took your Honours to up front, that is, that he felt the steering give way when he hit the potholes - evidence very consistent with that was given to Senior Constable Barber soon after the evidence. So it was corroborative, in effect, of the version which he ultimately gave in evidence, that is, that almost contemporaneously with the accident he had said something very similar.

KIRBY J: Was it in the police notebook? Was it written down? Did we get the extract from the police notebook? It is in the P1 form or whatever they call it.

MR REYNOLDS: I do not believe so, your Honour, and, as I understand it, in some form that is a point which my learned friends try and make. Your Honours, the only other section - - -

KIRBY J: He also makes the point that in a number of statements to medicos, though by inference after any statement was made to Senior Constable Barber, there are versions which fall short of the pothole theory. I am referring to footnote 79 on page 11 of the respondent's submissions, where statements were made to various people that he was riding the bike and the "handlebars collapsed", riding the bike when the "steering failed". I suppose it depends on the extent to which people record detail in these reports.

MR REYNOLDS: Your Honour, as I understand it, Senior Constable Barber did not record this conversation in a notebook.

KIRBY J: He did not?

MR REYNOLDS: He did not.

GLEESON CJ: One of the matters that the Court of Appeal found some difficulty with was, was it not, that is not just a question whether your client hit a couple of potholes, it is a question of when and in what circumstances he hit the potholes?

MR REYNOLDS: Yes, your Honour.

GLEESON CJ: The Court of Appeal theory being that he hit the potholes after there had been some kind of failure of the mechanism of the bike.

MR REYNOLDS: Yes. If your Honour looks at the finding which is quoted at the top of page 10, the finding there is:

"The plaintiff told Constable Barber that he hit a couple of potholes, the handlebars of the bike came away and he hit a tree."

I concede that that is what the grammarians call parataxis rather than inserting a process of cause or reasoning. In other words, he does not say that he hit a couple of potholes and as a result of that the handlebars came away, but that is the way ordinary people talk to indicate a relation of cause and effect - "What happened?" "I hit a couple of potholes, the handlebars of the bike came away", et cetera - and that indicates in the language of, I submit, ordinary people, a relation of cause and effect.

Can I finish finally with the evidence of Dr Thompson? The point that Justice Giles made about his evidence which we note in paragraph 5.51, is that having noted that the master accepted the evidence of Dr Thompson, Giles JA said that:

"Dr Thompson's evidence . . . did not rise above consistency, and could not do so" -

that is, was incapable of doing so. We then quoted a relevant passage from his evidence where we submit he indubitably embraced the potholes hypothesis. If your Honours want to read the context of that question in greater detail, I can give your Honours - - -

KIRBY J: I think we will have to because Mr Jackson says that there was a word on the assumption missed out in your submission, in effect.

MR REYNOLDS: Yes, on the assumption he means assuming this against me in the sense that I, as counsel, do not concede this point but putting to you these various assumptions.

KIRBY J: See at paragraph 52, page 17, Dr Thompson said "at the time of the assumed going into the pothole". He was not there, he cannot say whether or not this is what happened so he is accepting it as a hypothesis but do you say it firmed up in cross-examination to saying that on the evidence that was known this was the more probable explanation?

MR REYNOLDS: What happened was Dr Thompson was pushed by Mr Rofe beyond the point. He first of all said it is 50:50 - - -

KIRBY J: Your suggestion is that Mr Rofe for once asked that extra question.

MR REYNOLDS: Your Honour, that would be unkind and I do not say that.

KIRBY J: It looked a bit like it.

MR REYNOLDS: Sometimes one takes a risk. One hopes that the witness will say "Yes, I have to agree, I can't say that isn't more probable than not", but sometimes the witness bites you back and that is what happened here.

KIRBY J: We had better look at that, I think.

MR REYNOLDS: Your Honours, before we come to that I need to explain what Dr Thompson's reasoning is on this point because it is not very clearly set out, unfortunately, in any particular small section of his evidence.

I need to explain to your Honours, at least briefly, what is the logic behind his acceptance of the proposition that the potholes hypothesis was more likely. Unfortunately, I need to go a little into matters metallurgical to do this, but I would like to take a couple of minutes and try and explain that.

Your Honours, this case was partly about cracks in a bicycle stem and the experts agreed that as to 50 per cent of the stem there was fatigue cracking. So there was cracking as to half. They further agreed that there were three further cracks which occurred. They called the first two further cracks "the first sub-critical overload", they called the second "the second sub-critical overload", and they called the third one "the final overload", that is, when the stem broke. So you have 50 per cent cracking and then what I will call three further cracks.

Now, one of the issues which they focused upon was the time interval between the last three cracks. They focused upon whether those last three cracks occurred virtually simultaneously or whether there was some more substantial time interval between them. The view that Dr Thompson came to on this issue is very clearly set out in his re-examination in volume 2 of the appeal book at bottom of page 321 to 322. If your Honours only read one portion of his evidence, I would ask your Honours to read this half page of very focused and precise re-examination from Mr Milne. I will not read all of it to your Honours, but I will try and summarise it. Mr Milne asks him, does he remember questions about the sub-critical cracks. He says, he does. He then says:

You then gave some evidence to say that if that had been the case, you would expect to have found something about the pre-existing fatigue cracks?

A. Yes, I would have expected if the bicycle had been used in that condition with the 50 per cent fatigue crack and then the two sub-critical overload impositions - if the bicycle had been used for a few hours or -

for a longer time -

then I would expect to have seen evidence of fatigue cracking similar to what accounted for 50 per cent of the cross-sectional -

the earlier cracking.

Q. Did you see that?

A. No, I didn't.

Q. Are you able to make upon the balance of probabilities a deduction from your failure to see that?

Paraphrasing his answer, he says, well:

My failure to see that . . . sways my balance of probability to the fact that the two sub-critical overload impositions were not there prior to the final overload.

In other words, the three overloads occurred at a similar time. That is, the two earlier overloads:

occurred at a similar time as the final overload fracture.

When your Honours read the answer we have quoted there in our submissions, that is what the point is coming back to. Now, his reason then for saying that these three later cracks occurred at a similar time is fairly simple as a matter of physics, so let me try and explain. You have a crack as to half of the bicycle stem and he is saying, "Well, when I inspect this, I can see three cracks. Crack, crack, crack. But what I do not see is any fatigue cracking after the first two cracks". In other words, you do not see crack and then creak, and then crack and then creak, and then final crack. You do not see that. You see crack, crack, crack. That is his observation of the physical state of the bike stem.

His point is simply this, that if there was any substantial time gap between these last three cracks then he would have expected to have seen fatigue cracking between the first and the second, and the second and the third. So that is why he can say that the last three cracks occurred, as he said, "at a similar time" with each other. Now, why is that significant on the issue of which hypothesis should be preferred? What he says in his evidence in that answer is that that makes the potholes hypothesis more likely. Why? Because three major cracks at the same time - crack, crack, crack - are more likely to happen if a cycle hits potholes - bang, bang, bang - than three crack, crack, crack as you are sailing along the normal roadway.

That is his point, is that the absence of that fatigue cracking shows that potholes is a more likely hypothesis because when you go into potholes you have a scenario where you will have crack, crack, crack, whereas, if you were on the roadway it is, as a matter of commonsense, far more difficult to think of how you could get three cracks like that almost at the same time. That is his point. When he was pushed in cross-examination he said, "Well, yes, I can say the potholes hypothesis is more likely." "Why do you say that?" He says, "Well, because of the absence of fatigue cracking."

KIRBY J: But is there a flaw in that logic, that we just do not know all of the pressures to which the stem has been placed over the years? We have no idea of the little accidents and little stresses that have occurred. They are just not known. You would have to have a total chronology of the bike. There was some suggestion that this was a handlebar that was added or in some way was modified by your client, was it not?

MR REYNOLDS: Your Honour, I am making a submission in response to what Justice Giles says. He says that Dr Thompson's evidence did not arise above consistency between these two hypotheses and was - he uses the word "could" - was incapable of doing so. Your Honours, when he was pushed, Dr Thompson reached out and he grabbed that hypothesis as one that was more probable than the normal riding hypothesis and he gave what I submit are very coherent reasons for embracing that hypothesis, reasons which, with respect, even a barrister can understand and which even a barrister can explain to your Honours. It was a matter of commonsense.

KIRBY J: Where is the answer to Mr Rofe that you say embraces the - - -

MR REYNOLDS: We have quoted in our submissions at paragraph 5.4 to 5.55. Your Honours, while my learned junior is fetching something from our papers can I raise a matter in respect of which I owe your Honours an apology and it is this, that in both the notice of appeal and our written submissions we have set out orders that we seek and they have not been drafted well. We have some alternative short minutes of order which my friends have seen. Can I hand up some copies of those minutes.

GLEESON CJ: Thank you.

KIRBY J: He agreed with your former orders in the event that the appeal were allowed. Does he agree with these orders?

MR REYNOLDS: I understand not. I will deal with that when your Honours have the orders. I will indicate what I understand to be the area of disagreement. The difficulty with the orders we had proposed before is that we did not set aside the orders made previously by the Court of Appeal and we did not have an appropriate costs order about what happened previously in the Court of Appeal. We try and deal with the question of costs there in order 3. I understand that is the area of dispute is order 3. I wanted to indicate that. Perhaps I will leave that to Mr Jackson to deal with.

Your Honours, there is one matter that I would like to raise with your Honours before I conclude my submissions, and it is this. Your Honour Justice Callinan has already raised with me the question of whether this case was argued or pleaded.

Now, when we received the written submissions emanating from the respondent we noticed that there seemed to be in some form quite a few what I will call notice of contention points. One is the point that the case was never argued, another is that the case was never pleaded. The reason I mention that is first of all so that your Honours understand why I have not dealt with them because I would rather respond to what Mr Jackson says on that point.

The main reason that I want to raise it at this stage is this. It is to alert your Honours to what I respectfully suggest may be a problem, and it is this. As we read the submissions from the respondent there seems to be in there, in what I suggest is in some embryonic form, a sort of a notice of contention dealing with the Abalos issues; in effect that there is a judgment that the Court of Appeal could have written on this point which would have passed muster with Abalos and that is alluded to in the written submissions.

The reason I raise that is because that is going - first of all we submit that my learned friend should not be permitted to do that. Second of all, we submit that if he is permitted to do that, that that is going to cause us very real prejudice. I do not want to address your Honours like a jury but it will not have escaped your Honours' notice that this is a most significant matter for my client.

If my learned friend is in effect allowed to deliver on his feet the judgment which the Court of Appeal should have given on the Abalos issues then it is going to be, in a case of this factual complexity, virtually impossible for me to be able to deal with that today and I just wanted to highlight that difficulty. It may be that I am boxing at shadows and that I am raising a matter that my learned friend is not going to raise, but I did want to highlight what we say is a difficulty and the fact that this matter has not been outlined, this argument has not been outlined in the notice of contention. Your Honours, those are my submissions.

KIRBY J: Mr Reynolds, just one little thing. On the cost order in the Court of Appeal, did the Court of Appeal divide the issues and hear only argument on the matter on which it decided the matter or did it proceed to hear argument on all of the grounds?

MR REYNOLDS: Thank you, your Honour, for raising that with me because I should have dilated on that a little. What happened is this case was set down for four days to go through all sorts of issues, and Mr Bathurst appeared for my client, leading Mr Conti. They prepared for all of these issues, as did both sides, and the Court of Appeal raised this question of causation at the threshold of the case, and the argument was concluded before lunchtime. So my client has been put to a lot of expense as a result of that, and there would be a lot of costs thrown away if your Honours find that this appeal should never have been allowed.

We simply want to try and get my client some compensation for all of those costs that were effectively thrown away as a result of us - see we have to go back, even if we win this appeal, and deal with all of the other issues on negligence and the like. That is going to involve a whole lot of what I might call start-up preparation - - -

HEYDON J: Re-preparation.

MR REYNOLDS: Indeed.

KIRBY J: But these are results, not of anything the respondent did, but of a course that the Court of Appeal took in which apparently you acceded. Normally the rule would be, would it not, that the costs will follow the ultimate outcome?

MR REYNOLDS: Well, your Honour, we would submit it is an oversimplification to say that my client acceded to that. This was a result foisted upon my client, with respect, by the judges of the Court of Appeal.

KIRBY J: Foisted on the respondent too.

MR REYNOLDS: Well, indeed. They seek to sustain the - - -

KIRBY J: In criminal appeals this Court has said that the Court of Criminal Appeal should deal with all grounds. I do not think it has ever said anything like that in civil appeals, at least as far as I know.

GLEESON CJ: I presume that one of the outstanding issues was that the Court was being invited pass upon the reasonableness of the Cessnock Council works program.

MR REYNOLDS: Indeed. But the issue generally of negligence still remains, but there have been a lot of costs, we say, that will be incurred as a - - -

KIRBY J: The respondent has a lot of extra quivers to the bow.

MR REYNOLDS: At any rate, your Honours, are advised of the point.

GLEESON CJ: We understand that point.

CALLINAN J: Mr Reynolds, just one question, did you file written submissions in reply? None have reached me, that is all.

MR REYNOLDS: No, I did not. I do not believe them to be obligatory.

GLEESON CJ: Thank you, Mr Reynolds. Yes, Mr Jackson.

MR JACKSON: Your Honours, our learned friend's argument says that this is a case of great complexity but so far as the case as it presently stands is concerned that is not, with respect, correct. There is a great deal of paper, of course, but it is a case which turns in the end on quite narrow circumstances. I will come to those in just a moment if I may.

Could I say one thing before doing so and it is this, your Honours, in relation to the rush of lactic acid. Your Honours will see that one sees first of all in the findings of the primary judge in volume 8 at page 1766 that it was not as if he was travelling at full speed. What he was doing was travelling at three-quarter speed. It is page 1766 and your Honours will see it about line 20. This is the flat training section which included the speed section where he rode his bicycle at three-quarter pace for a set section and timed himself with a stopwatch. His evidence in relation to that is at the bottom of page 87 to the top of page 88 in volume 1. So that one is not speaking about someone who is going full speed along. Your Honours, if I could come then to the basic circumstances - - -

KIRBY J: What is the significance of that factual point?

MR JACKSON: Your Honour, the point I am seeking to make is this, that Justice McHugh appeared to be putting to my learned friend the proposition that he was pedalling a bike very fast and, therefore, the possibility of loss of concentration by virtue of the effect of the activity on the brain was greater.

Your Honours, could I come to the very basic facts, because that is the way in which the matter essentially has been dealt with, in our submission, in the courts below incorrectly first up, correctly on the second occasion. They are these, that the plaintiff was found in a ditch - I use the term without any particular accuracy - on the eastern side of the road. He had been riding his bicycle north on the road. The bicycle was one which had a potentiality to fracture in the steering mechanism and at some point, leaving aside the present accident, would have fractured.

After the event the potentiality to fracture is found to have been realised. It was a situation, your Honours, where he was very familiar with the road; he had been along it hundreds of times. He was travelling along a path which would not have involved him coming into contact with the rough edges of it. I emphasise that in passing because what one sees from the way in which the case was dealt with in the Court of Appeal, the position was specifically adopted by counsel appearing for him.

Could I take your Honours in that regard to the transcript of the argument in the Court of Appeal which your Honours will have in a bundle we have given the Court. It is a folder and it is the last item in the folder. It is page 9 of that. Your Honours will see about line 10 on that page Justice Rolfe saying:

Does that mean, Mr Bathurst, that you accept the potholes that were hit were the ones to the left?

Your Honours will see the passage. I will not read it out. It goes down to about line 52.

CALLINAN J: I am sorry, Mr Jackson, I cannot find it.

MR JACKSON: It is the last document in that folder. It is the transcript of the argument in the Court of Appeal and it is page 9. It commences about line 10 and goes through to about line 52. So the proposition that is put to Mr Bathurst by the court and accepted by him is that if he had continued on in the way in which the evidence was that he was going, he would not have run into any potholes; there were no potholes in his path. So your Honours will then see between lines 35 and 40 Justice Rolfe saying:

So you've got to get him over on to the left hand -

side in effect. Mr Bathurst agreed with that. Your Honours will see Mr Bathurst saying at about line 48:

We do not put a case that this occurred as a result of a pothole two feet out, there's no basis.

Now, your Honours, there were rough edges. Whether one calls them rough edges or edges of potholes or patching or whatever, there were rough edges and they would have been capable of causing the final fracture of the steering mechanism. But the question which had to be answered was: how did the bicycle come into contact with the edges when he would not have come into contact with them unless the bicycle veered towards them. He said that it was because a car struck him or came into contact with him and that caused him to veer from his path and onto the rough edge.

That was the cause that he suggested and it was the only cause that he suggested. It was his case. No other case was suggested on his behalf at trial by pleading, evidence or submissions. Indeed, as your Honours have seen from passages we have extracted in paragraph 6 of our written submissions, he refused to contemplate any other reason than the fact that he was pushed into that part of the road by the car.

Could I take your Honours for just one moment to volume 1, page 45. Your Honours will see this is one of the instances of his evidence. Commencing at about line 45 on page 45:

Q. And what happened?

A. I was riding my push bike along there and a car brushed up against me and forced me on to the rough edge of the road on to the pot holes and patches in the rough edges of the road.

The passage, your Honours, goes through the remainder of that page and goes on really through to the bottom of page 46. Now, your Honours will see that our learned friend's argument, in effect, is that one can extract a bit from what was said and say he gave evidence that the bike came into contact with the potholes but, your Honours, that is in a context where he is endeavouring to provide an explanation of how the bike got into that part of it and it is very difficult, indeed, in our submission, to say - one can almost divide the sentence in two and accept part of it but not accept the part to which it relates, namely, the only cause about which he was giving evidence.

Now, your Honours, one sees then a situation where the judge found that no car was involved so what emerged then was that there was no evidence - I think I should perhaps emphasise the word "evidence" - there was no evidence to support any reason for the plaintiff to have diverted from his course and the diversion is the matter of importance unless it was caused by the failure of the steering.

Now, your Honours, in those circumstances there were really two objective matters that needed to be taken into account, and why would one neglect to take into account as, with respect, the primary judge's reasons appear to do because one does not really see any discussion of this aspect of probabilities, why would one neglect to take into account the most basic objective fact likely to have caused the veering from the course, absent a car, namely, that the steering, potentially wonky, if I can use that dated word, had failed?

There was a second objective fact - and one bears in mind that this was a trial which commenced six years after the accident - and the second objective fact which was important was that in no contemporaneous note of what had happened in the accident was there any mention of potholes as the cause and the only reference to potholes is in the oral evidence of Constable Barber who had made no note of the conversation that he said took place.

Could I go for just a moment, your Honours, to the places where one sees the passages to which we have referred in footnote 79 of our written submissions at the bottom of page 11? Your Honours, I think we may have omitted one or two references and could I, as I take your Honours to these, invite your Honours to note the references particularly. The first is to Senior Constable Campbell in volume 4 page 919. He gave oral evidence to the same effect.

Could I invite your Honours to note that there were two police officers who came to the scene, Senior Constable Campbell and Senior Constable Barber? The one who made the notes on the occasion was Senior Constable Campbell. Your Honours will see at page 919 about two-thirds of the way down the page he notes:

10-05 pm PUSH BIKE RIDER INJURED - TONY PETER SUVAAL

Then if your Honours go down about six or seven lines into it he said:

SUVAAL was conscious and complained of injury to his back. An ambulance was consequently summoned. It was established from SUVAAL that he was riding his pushbike south in Kitchener Road when it collapsed from beneath him. It is unknown what he came into collision with but the impact -

and that seems to be the impact with his body -

shattered the bicycle helmet he was wearing.

And on the next page, page 920, the second paragraph in effect:

An inspection of the bicycle revealed that that the steering rod assembly had come out of the respective socket.

And he gave oral evidence to the effect that those were the things that he was told by him at the time.

KIRBY J: Just let me understand, is that the agreed explanation, that the steering and handlebars came out of the socket or that there was a fracture of some kind of the stem? I have been acting on the latter assumption but it seems that that report postulates a different assumption.

MR JACKSON: I am sorry, your Honour.

KIRBY J: I am referring on page 920 to the second entry there:

An inspection . . . revealed the steering rod assembly had come out of the . . . socket.

I mean that is easy for his handlebar to do, come out.

MR JACKSON: Yes, because of the fracture.

KIRBY J: That is what I have assumed but that does not seem to be saying that. There is no mention there of a fracture, is there?

MR JACKSON: Your Honour, he was not carrying out a detailed inspection of it.

KIRBY J: No, of course not, and from a police point of view, if there is no other vehicle, they are not going to be too concerned.

MR JACKSON: Yes, and you will see on page 921, which is the collision report, it is divided with a line down the middle, in effect, and on the right-hand side where the other driver and the address is given it is given "Tree", that is what he collided with. Your Honours will see the oral evidence of a witness in - - -

KIRBY J: It does say on page 921 that it "may have snapped".

MR JACKSON: Yes, and your Honour will see at about line 32 on page 921:

Vehicle 1 appeared to crash into a tree. Handle bars of push bike may have snapped. Driver ejected and unable to account for crash.

KIRBY J: But is it fair to say that because he was not - a policeman normally goes to a scene in order to find out whether there is some other vehicle involved, not to find out if there is some liability in a council, and he does not record that because that would not have been the sort of thing that a policeman would normally be worried about.

MR JACKSON: What he said he recorded, your Honour, was what he was told - no more, no less. That is what he was told and he wrote it down at the time. You will find the reference in out footnote.

KIRBY J: I suppose what I am saying, Mr Jackson, is that what is recorded does not bear out the hypothesis that is propounded but it is not incompatible with the hypothesis that is propounded because it does not have a contradiction in the report. It simply does not mention potholes and there is nothing there that is contradictory to potholes.

MR JACKSON: What I am saying, your Honour, is this, that if one looks at the four references I am in the course of giving, and they are all notes made by people at that day or the next day about what he had told them had happened, none of them says a word about potholes.

If ones goes to the next one which is Mr Clark, who is an ambulance officer, page 917, you will see a little before halfway down the page at "HISTORY", the second line:

supine in gully alongside road - [patient] states he was riding push bike when handlebars collapsed causing to be propelled forward into gully.

GLEESON CJ: Is there anything in this about a vehicle threatening him or brushing him?

MR JACKSON: No, and that does not really appear within any days immediately after the accident. The vehicle comes later in any versions he gave. What does appear, your Honours, in the recorded versions in the day of the accident and the day after the accident is that the bike, in effect, collapsed and off he went.

GLEESON CJ: When did he first blame a motorist?

MR JACKSON: I will give your Honour the date in just a moment, if I may. Could I take your Honour in the interim to page 918? Another ambulance officer took a history from - Ms Alderson, a paramedic, at page 918. You will see again, "HISTORY".

Pt rider of push-bike which steering failed and crashed down a 1 mtre embankment landing heavily on boulders on the neck -

et cetera.

KIRBY J: Whose report is - - -

MR JACKSON: That is a Ms Alderson, your Honour. There were two ambulance reports, to put it shortly. One is the one at page 917 from Mr Clark; one is at page 918 from Ms Alderson who is a paramedic. The reference to their oral evidence your Honours will find in the footnote to which I adverted earlier. Finally, your Honours, in this regard, Dr Ruff. Now, Dr Ruff was the doctor who, on his arrival at the spinal hospital for spinal treatment, was the doctor who had to look after him. Your Honours will see in volume 5 at page 1253, that 11 months after the event he is saying to another doctor:

Tony is a 34 year old C6 quad, whose associated skeletal injury was multiple fractures in the posterior elements of three contiguous cervical vertebrae, sustained 12 months ago when the handle bars on his push bike failed causing him to dive head first into the road while pedalling at speed.

Could I say, your Honour, I said that was 11 months after, but on the next page, 1244, Dr Ruff says to my instructing solicitors:

In reply to your correspondence of 19^th February, 1999, the source of history recorded by me in the referral to Dr Sorby -

to put it shortly -

was from Tony Suvaal himself, in history taking on admission to the Royal North Shore Hospital, under my care -

and his oral evidence was that that was, I think, the day following the accident which had occurred on the night before.

Now, your Honours, if one pauses at that point, one does see that there were recorded versions of the accident given by the plaintiff, given at times which were very close to the accident, indeed, which are all along the same lines - no reference to potholes or to the collapse of the mechanism of the bike. That was material of considerable significance. That was not oral evidence being given years later, as was the evidence of Senior Constable Barber; it was evidence of matters that were recorded at the time.

If one goes to the evidence of Constable Barber, you will see that in volume 3 at page 600. At about line 26 on the page, when he arrived - the plaintiff knew him slightly - he said:

"Harley, I'm stuffed. I'm stuffed" . . . "I've got no feeling" . . .

Q. Did you further talk to him?

A. Yeah, I further asked him just a version of what had happened. Asked him was there a vehicle involved. He said "No". I said "Are you certain about that". He said "Yes".

Q. Yes?

A. He further told me he was travelling along the road, as he always did, saw him ride there all the time -

Barber's house was very near where this happened -

he hit a couple of potholes, and the handlebars of the pushbike came away and he hit a tree.

Now, you will see at page 601 between lines 10 and 15 that he was not the one carrying out the investigation. It was Campbell. He, Barber, had made no notes, and, your Honours, that was the position. One had the situation that there was simply an unexplained divergence from the normal path of travel. Indeed, it was a denied divergence except for the contention that it was caused by the vehicle. A possible cause of the divergence was that it was caused by the failure of the steering mechanism. The steering mechanism in fact was found to have failed. Every contemporaneous note of what the plaintiff had attributed the accident to referred to the failure of the steering mechanism.

Your Honours, in those circumstances, how could one possibly say, in our submission, that the more probable cause of the accident was that it was inadvertence. Your Honours, that is why it was right, in our submission, for Justice Rolfe to say, as he said in volume 8 page 1950, paragraph 29, once the motor vehicle, in effect, was taken out of the picture:

the question which arises is what caused the highly experienced cyclist, fully familiar with the road and aware of the dangers on its sides, to move from the route which provided safety to the area of danger.

Your Honours, there seemed no reason other than what, in our submission, was a complete speculation by the master, namely inability, inadvertence, or that there was a failure of the steering which in fact had occurred and which at the time, he told people, was the reason. Now, your Honours, if one goes to Justice Giles' reasons at page - - -

McHUGH J: What do you say about the evidence on 609 of Barber, the last question and answer?

MR JACKSON: Yes. He says at the top of the page that was his recollection of what he had said.

McHUGH J: Yes.

MR JACKSON: Your Honour, what he said was that that was his recollection of what he had said at the time. What I am saying, your Honour, is that that might be his recollection of what had been said at the time, but it would be very difficult, in my submission, to accept that evidence in the light of the other matters to which I have referred without giving attention to the fact that if one looked at the objective evidence it consisted of the two aspects to which I have referred, and that objective evidence did not support the view that there had been an inadvertence which led him into the potholes. All it established at the best was that in some way he got himself into the potholes.

GLEESON CJ: Mr Jackson, I have just been looking at some of these photographs here. For someone who is riding a bicycle at high speed along this country road it is not just potholes that constitute a peril once you get near or over the edge. There is loose gravel, highly irregular surfaces. Any cyclist who got too close to the edge of that road would be in a very risky situation if the cyclist was travelling at high speed, I would have thought.

MR JACKSON: Well, it is possible, your Honour, yes. Bear in mind, I do not know if your Honour has the photograph that is numbered 4, it is on page 4. Now, you see the car there; the car is in the entrance to the Barber's property. You will see a pole next to it and the cyclist was coming, as the finding was, towards us in the picture and - - -

KIRBY J: Barber is the Senior Constable?

MR JACKSON: Yes, there are two senior constables.

KIRBY J: Is the "X" where the accident occurred?

MR JACKSON: The "X" is where he said he went off the road.

KIRBY J: So by coincidence he had his accident straight outside the Senior Constable's home?

MR JACKSON: I do not think he intended that, your Honour, with respect, no.

KIRBY J: No, I am sure he did not.

GLEESON CJ: There are actually two "Xs" on this photograph. Which is the relevant one?

MR JACKSON: Yes. The first one, your Honour.

GLEESON CJ: The red one?

MR JACKSON: Yes, how they go, your Honour, is this: perhaps if I could hold this up. You see the two "Xs". The first one is that he came down the road and went off the road; the second one is where he came back onto the road and veered onto the other side and he was found in the area where the tree is.

GLEESON CJ: I was only offering for your comment the suggestion that unless the rider of a bicycle pedalling at high speed in this area had ceased to concentrate on anything, one of the things that he would certainly be concentrating on was keeping the front wheel of his bicycle away from the edge of the road.

MR JACKSON: Yes, your Honour, one would expect so and, indeed, really, whether the road be good or bad, in a sense, one would not be deliberately riding off the edge of a road as a bicycle rider - - -

GLEESON CJ: Yes, I am not commenting on whether that road is up to standard for a country road, but I suppose that is part of what the rest of the case is about, but it is self-evidently dangerous for a speeding cyclist to get his wheels on or near the edge of that road.

MR JACKSON: What he would have seen, your Honour - the photograph on page 14, that is in the direction he was going. That is a photograph taken in May 1993 a few months after the accident and you can see the entrance to the Barber's property on the left.

KIRBY J: So 14 is him coming - - -

MR JACKSON: That is the direction he was going.

KIRBY J: - - - that is the way he was going, so he can see that the road was about to veer to the left.

MR JACKSON: Yes.

KIRBY J: So is there a hypothesis that he might have anticipated the veering to the left and gone towards the left earlier?

MR JACKSON: It is quite a distance, your Honour. I just do not have it immediately but it is not part of the curve. He has not got to the curved part of it yet.

KIRBY J: No.

MR JACKSON: But, your Honour, that is why, with respect, the finding by the master does have, with respect, in our submission, an air of unreality because the whole case was that he was travelling along the road and a car pushed him off.

KIRBY J: But is a problem presented by the fact that he said that he went into a pothole? That was confirmed by the constable and the master, whilst projecting the cause of going to the pothole vis the vehicle accepted that he went into the pothole and the master saw him give that evidence and appears to have accepted that part of his evidence?

MR JACKSON: Well, your Honour, the problem with that - - -

KIRBY J: Although you were attacking it and saying to the master what you are now saying to us?

MR JACKSON: Well, your Honour, we were dealing so far as the master was concerned with the case - I do not mean this is just saying it is a matter of form, your Honour - but no such case was advanced by the plaintiff, and, indeed - - -

KIRBY J: A pothole case was advanced.

MR JACKSON: No pothole. The case was they were put into the pothole by the driver.

KIRBY J: I realise that, but it was still a pothole case. It was driver plus pothole, but now the theory is pothole but some other explanation.

MR JACKSON: Well, I mean, it is like riding into a telegraph pole. If your case is that you rode into a telegraph pole because you are pushed off the road by a car, that is one thing, and it would be very difficult to find that at the end of the day there was a case that the telegraph pole was too close to the road in case someone should ride off.

CALLINAN J: Mr Jackson, if the appellant had tried to make a case on this basis, "I was knocked or pushed by a car. In the alternative, if I'm wrong about that, if there was no car there, I came off the bicycle and the bicycle broke because I ran into some potholes", he would be laughed out of court.

MR JACKSON: It would be very difficult, your Honour, unless one could - - -

CALLINAN J: Unless he had been unconscious or there was post-traumatic amnesia or something of that kind, otherwise it would be a ludicrous case.

MR JACKSON: Yes. I was just going to go to Justice Giles. At page 1944 your Honours will see his Honour's reasons. Your Honours will see in paragraph 9 that the judge says, and correctly, in our submission:

On this finding, the order of events was divergence due to lapse in concentration, going into the potholes, and then loss of steering control from the fracture of the head stem.

KIRBY J: This is travelling at 25 kilometres an hour, so it is not miles an hour. It is not going to be a big space between the three elements.

MR JACKSON: No. Your Honours will see that in paragraph 10 he says, in our submission, entirely correctly:

There was no foundation in the evidence for the Master's finding of lapse in concentration.

There was simply nothing at all to suggest that the accident happened in any way other than the cause that was attributed to the car.

McHUGH J: But if you accept he went into the pothole, it is not difficult to infer it comes from a lack of concentration. Probably every day joggers and other people are running into poles, tripping over, because they lack concentration; the same with bike riders.

MR JACKSON: Your Honour, it might not be hard to accept that if you had a situation where there was nothing else, but this is not that. If all you had was a situation where he was found and he was found in the ditch, let us say, and nothing more, that inference may be open. Could I just say that that really was not quite this case because what you had was two other things of importance. One was that he was riding a bike which had the potentiality to fracture because it was at least halfway worn through and the relevant bit was split already. That was the first. It would fracture; it was a question of when.

The second thing about it was that it was not as if there was no statement about what happened. He had told people what happened and it was recorded what happened: the bike collapsed. So one is not just saying - - -

McHUGH J: That is true, but the question is whether anything is left out. You know from common experience that, particularly when there is no other vehicle involved, the policeman comes back, types up a report. He is not thinking about what is going to happen in the High Court of Australia years later. He just says it collapsed.

MR JACKSON: All the more reason for it being accurate, one might think, with respect.

McHUGH J: No, but from the police officer's point of view, the handlebars failed or collapsed or snapped - there are different versions of it. That is all he says.

MR JACKSON: Your Honour, one could imagine a very sick man lying there and the policeman says to him, "What happened, mate?", or something like this, and he tells him a story. One can imagine the ambulance people ask him what happened. He tells them. He is then taken to hospital and it is a serious business now. He knows his condition and the doctor asks him what happened: "Tell me what happened". Of course any of those things could happen once, perhaps twice, but not four times, in our submission.

McHUGH J: Why? The handlebars have collapsed. He is not going to think about every step along the way. This is the real world. We are dealing with ordinary people.

MR JACKSON: Of course we are.

McHUGH J: Not highly trained lawyers who analyse every statement.

MR JACKSON: No, we are dealing with people who tell you what happened. He said, "I'm riding along and the handlebars collapsed and I went off".

McHUGH J: Well, you must have conducted enough conferences, Mr Jackson, with plaintiffs and defendants, trying to get out of them what happened, and you have a great deal of difficulty getting them to give a coherent account of it.

MR JACKSON: Well, I think I am misarguing it, your Honour. One has a situation where a pretty coherent account is given, a very simple account is given. It is consistent with the condition of the bike and it is one which is also entirely consistent with the fact that he says nothing about a car, and in fact no car is found to exist. Your Honour, I do not think I can take it beyond - - -

KIRBY J: Your point is that in so far as we go to the safest source, objective recorded material, the safest source, there is no mention of potholes.

MR JACKSON: That is so, your Honour.

McHUGH J: The point is it is not objective. That is the whole point.

KIRBY J: It is not complete.

McHUGH J: It depends on human recollection, people putting things down. It is not like a document that contains a contract or so on. It just depends on people's recollection.

MR JACKSON: Your Honour, of course. But the people who made these things were making them in the course of their obligations to do so. They endeavour to do their best and they get from him what happened in the accident. Now, your Honour, I cannot take it beyond that. But it is not unimportant. It is entirely consistent with the fact that he was riding a bicycle which was prone to failure.

Now, your Honours, could I just say one sees also in paragraph 14 of the judges' reasons, of Justice Giles in the Court of Appeal, at the bottom of page 1945, it is said here:

the respondent accepted in the appeal the he could not properly contend that the roadway where he normally followed his safe course was potholed or otherwise so rough as to connote negligence on the appellant's part: hence the importance of the divergence from the safe course into the potholes.

Now, that is the point that was important. In relation to that aspect one simply had a situation where, in our submission, it was impossible to arrive at the conclusion at which the master did. Your Honours, could I just say if one looks at the two findings by the master that are relevant, one sees them at paragraph 309 at page 1906, the last four lines on that page. Then your Honours will see a little earlier at page 1039 paragraph 167 - - -

HEYDON J: Which paragraph I am sorry?

MR JACKSON: I am sorry, it is paragraph 167 - two paragraphs at 309 and 167. At paragraph 167 the expression that was used by the master is at about line 36:

I accept the plaintiff's account that he caused his bicycle to go into potholes or hit patches -

Your Honours, that is a most curious, with respect, description of what his evidence was.

GLEESON CJ: On page 1906 at line 25 the master says:

The plaintiff . . . lost concentration when he allowed the steering of the bicycle to put him into the potholes and rough edge of the road.

What exactly does that mean?

MR JACKSON: Well, your Honour, we have some difficulty with it in trying to identify that with the evidence. Your Honours, could I say, and I will endeavour to do so very briefly, a couple more things. One is that the statement of claim was based on the presence of a motor vehicle. I think your Honours have been given copies of an amended statement of claim. It is not significantly different, for relevant purposes, from the one that is in the appeal book.

KIRBY J: Is this the earlier version of the statement of claim?

MR JACKSON: Yes. Your Honour, there was an amendment. It was missed in the documents, I think. But your Honours will see from that - and the statement of claim is in the start of volume 1 on page 1. Your Honours will see when one comes to the essence of the case, paragraph 6 on page 2, it is a case of:

an unidentified motor vehicle . . . brushed against the Plaintiff . . . forcing him off the sealed bitumen surface onto the said edges of the road -

the edges of the road described in paragraph 5. Now, when one sees - - -

KIRBY J: Mr Jackson, can I just interrupt you to say that for the first time I have seen that my brother who was then a member of the firm of solicitors who appeared for the plaintiff was the solicitor on the record in this case. I did not realise that before this minute.

MR JACKSON: Your Honour, we would not have the slightest objection, I am sure.

KIRBY J: He is no longer a member of the firm and has no interest in the matter and it has never been mentioned to me. So I just put that on the record but I did not realise it until this minute.

MR JACKSON: No. Your Honours, if one looks at the allegations of negligence, first, against the nominal defendants, paragraph 8, they are predictable, then paragraph 9 against us. It refers to the "said injuries, loss and damage" and then the particulars of negligence all, with one exception, relate to the edges of the road. I would invite your Honours to read them. The one exception is the generally expressed paragraph (i) in the particulars. The whole case is one of being pushed by the motor vehicle on to the edge.

Now, the evidence at trial was directed only to an accident caused by the motor vehicle. We have dealt with that, your Honours, in our written submissions. May I give your Honours the paragraph references. They are paragraphs 4, 6, 19 to 24 and 26. Your Honours have in the folder I gave your Honours earlier the written submissions of the appellant at trial. There is not a word in those submissions to suggest a loss of concentration case. The whole case for the appellant was based on the car. Indeed, your Honours, there was in fact a cross-appeal which was withdrawn by the appellant - you will see it referred to at the start of the transcript - and in that there had been a contention there was no basis for a finding of contributory negligence on the basis of loss of concentration. There was no evidence of loss of concentration but that - - -

McHUGH J: Does the evidence indicate in which way the frame snapped, the fork snapped? Did it snap to the right or to the left?

MR JACKSON: Your Honour, what it was was that it snapped within - - -

McHUGH J: I know that but - - -

MR JACKSON: Front to back, I think, your Honour. Front to back, I am told.

KIRBY J: There is a statement that it went anticlockwise. The handlebar went anticlockwise.

MR JACKSON: The handlebars, yes.

McHUGH J: Yes.

MR JACKSON: Front to back, your Honour. The loss of concentration issue was referred to at trial in the first defendant's written submissions, page 33, paragraph 9, where what was floated, as it were, was that there might have been - I will not take your Honours directly to it because of the time - where what was floated was the notion that perhaps his attention was diverted because he thought he saw a car. Our submission, which appears in our written submissions at trial, page 4, paragraph 9, was that it was not open to the judge to find that.

Your Honours, on appeal one of the points we made was that there was nothing to support the master's loss of concentration theory. Your Honours will see that in our written submissions in the Court of Appeal, paragraphs 27 to 30.

KIRBY J: Is that in the compilation?

MR JACKSON: Yes, your Honour, in a bundle we have given your Honours, the submissions that were made are set out. There may be something left out, our learned friends suggest, but I have no objection to them giving your Honours the additional material.

Could I also say that the master's decision has its unsatisfactory aspect in that the way in which she expresses her findings rather suggests that the potholes were in the ordinary course of travel. If I could go to paragraph 167 of her reasons at page 1839, your Honours will see she says:

I also accept that after the plaintiff hit the potholes he went onto the rough edge of the road.

In the preceding sentence she said:

the preponderance of credible evidence establishes . . . that the plaintiff hit potholes which caused a change in the direction of the steering of the plaintiff's bicycle.

Your Honours, that leaves of course the anterior question of how did he come to hit the potholes? We would submit that that was contrary to the plaintiff's evidence. We have quoted relevant passages in paragraph 6 of our reasons and as your Honours have seen from page 9 of the oral argument in the Court of Appeal that was not the case on appeal.

GLEESON CJ: You mean that that passage seems to suggest that there were potholes in the path of the plaintiff.

MR JACKSON: In the path, yes, that is what it seems to suggest. I cannot say it is absolutely clear that that is so but that is what it does seem to suggest. Your Honours, could I come for just one moment to Dr Thompson's evidence and your Honours have seen that much reliance was placed on his evidence that he thought the subcritical fractures were caused at the time of going into the assumed potholes.

Your Honours have been taken to the passage I think. What he thought essentially was that the two subcritical overloads and the final overload occurred at the same time. You will see that in volume 2 page 322 lines 13 to 18. It is a passage your Honours have been taken to already. It is the final passage in his reasons. The evidence which the master accepted, however, also showed that a relatively light impact could have caused these things to happen.

Could I take your Honours to page 1904 in volume 8 at about line 13 on the page; your Honours will see that she said she preferred "the evidence of Drs Thompson and Robinson". Dr Thompson's evidence is summarised relevantly at page 1902 paragraph 299, where he said in the last sentence:

A very minor force would not have caused the final rapid overload fracture, but it was possible that the final rapid overload fracture could have occurred if the bicycle had been travelling along a smooth road at 25 miles per hour.

Dr Robinson's evidence is on the next page, page 1903 paragraphs 301 and 302, that it could have been:

generated by . . . a light impact with an obstacle such as a rock, or a tree -

branch dropped on the road.

Your Honours, may I come then to a number of matters. Our learned friend submits that in some way we need a notice of contention for some of the submissions which we seek to make.

Your Honour, could I say in relation to that, if one goes to the provisions of the Rules dealing with notices of contention, Order 70 rule 6(5), which deals with notices of contention, starts off by saying:

It is not necessary to give notice of cross-appeal if a respondent contends that some matter of fact or law has been erroneously decided -

in our submission, that means erroneously decided by the court appealed from, and that, in our submission, appears in a sense from the context -

and does not seek a discharge or variation of a part of the judgment, decree, order or sentence actually pronounced -

Now, we do not seek to vary the judgment of the Court of Appeal. We do not suggest that any part of the decision of the Court of Appeal has been erroneously decided and should have been decided in our favour. The fact that notices of contention in the Court do, and do only, what is said was adverted to, in a sense, by members of the Court in - perhaps if I could give your Honours copies of this case - Owners "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 68 ALJR 311.

The context in which the issue arose does not matter, I think, but if one goes to the last page, page 313 - I think, in the copies your Honours have it may be outlined, in fact, the passage. What was said between B and C:

As a general rule, a respondent to an appeal is entitled to support a judgment by an argument not presented below so long as the argument does not depend upon an issue of fact not litigated in the courts below and so long as it is open to the respondent on the pleadings and having regard to the way in which the case has been conducted. Whether O 70, r 6(5) applies to such a situation may be doubted but, having regard to what we have just said -

and your Honours will see the remainder of the paragraph. Everything that we have put in our written submissions, in our submission, reflects what was dealt with by the Court of Appeal. None of those issues was an issue that was decided adversely to us.

CALLINAN J: Mr Jackson, could I ask you this, though. Was there a ground of appeal in the Court of Appeal - - -

MR JACKSON: Ground 1. I am sorry, your Honour, I have answered your Honour's question without knowing what it was.

CALLINAN J: It raises a natural justice type of point, does it?

MR JACKSON: Your Honour, what it says, at page 1903, I think, in volume - - -

CALLINAN J: I appreciate, in a sense, you may not have had an opportunity to argue it in the Court of Appeal, if what Mr Reynolds says is right, in those terms, because the Court of Appeal seems to have decided the case on the basis of metal fractures and the like - well, substantially.

MR JACKSON: Substantially, your Honour.

CALLINAN J: At the moment, I must say I am not persuaded that the outcome of the case depends upon any close consideration of those matters.

MR JACKSON: No.

CALLINAN J: And they do not seem to have been raised by you in your notice of appeal, although a submission seems to have been made about that by your side.

MR JACKSON: Your Honour, I am not certain that we are talking about quite the same thing. I was going to take your Honour to page 1923, which is the notice of appeal, and the grounds of appeal, your Honours will see, for example, ground 1 - - -

CALLINAN J: Do you say it turns anywhere - perhaps you do not have to, I do not know - that your side were never given an opportunity of dealing with the hypothesis that seems to have been an invention of the master - - -

MR JACKSON: Your Honour, that was put in our submissions before the master that she was not entitled to make any such finding because really the lack of concentration intruded perhaps in one passage, which I adverted to before in the nominal defendant's submissions. It also seemed to be the basis upon which it was being put that there should be a finding of contributory negligence put by the nominal defendant. We said she was not entitled to find a lack of concentration - - -

KIRBY J: So that was fully debated at trial then?

MR JACKSON: Your Honour, fully debated in the sense that - the submissions of the trial were largely written. The trial went - various breaks in it - largely written, and a very short time devoted to oral argument. In the written submissions, your Honours, we were - really in response to the suggestion, in a couple of paragraphs in the nominal defendant's submissions there was the possibility of some finding of loss of concentration. We said to the judge, "Well, he's not entitled to make one". That was not the case.

Now, in the Court of Appeal your Honours will see that our written submissions again dealt with those issues and said the same thing. Perhaps the best way, your Honours, if we were to deal with this issue, would be simply to give your Honours a piece of paper which set out the relevant passages in the various documents, if there is no objection by my learned friend to doing it.

CALLINAN J: I think you should give it to Mr Reynolds.

MR JACKSON: Of course, your Honour.

CALLINAN J: Because he says he is at a disadvantage in relation to this aspect of your submissions.

MR JACKSON: Yes. Your Honour, I would intend to, of course.

CALLINAN J: No, I mean he should have an opportunity to - - -

MR JACKSON: Your Honour, my learned friend is perfectly entitled to reply so far as we are concerned.

KIRBY J: But if it was raised at trial, I do not see that there is a natural justice problem because it was raised and the subject of submissions - - -

MR JACKSON: There is, your Honour, in this sense, that if the first time the issue appears is when the evidence is at an end, the plaintiff does not take the point - this is not the case made by the plaintiff - and you have another defendant simply saying two things. One is maybe it all happened not because of us. Maybe they perhaps saw a car in the background somewhere and that diverted attention. That is the first thing. The second thing is saying perhaps there should be a finding of contributory negligence in any event because of loss of concentration. That is all there was.

GLEESON CJ: What do you mean by the issue in that context? You mean the suggestion of loss of concentration?

MR JACKSON: The suggestion, that is all it is, your Honour, yes. That is all there was, a suggestion of loss of concentration. Your Honour Justice McHugh referred to Williams v Smith 103 CLR. Your Honours, what the passage says of course, at page 545, the passage does not really go all that far. What was said was, at the first new paragraph on page 545"

It was indeed a case in which the very divergent views of the parties might be compared by the jury and they might work out for themselves a view of the case which did not exactly represent what either party said.

It does not really allow one to go to a completely different case.

Your Honour the Chief Justice asked me when was the car first mentioned. It was first mentioned about two weeks after the accident. Your Honour will see it referred to in Mr Mowatt's evidence in volume 1 at page 168, about line 25, and also in the master's reasons in volume 8, page 1810, about line 25. His mother had said also two to three weeks after the accident the car was first mentioned. That is in volume 1 at page 227, about line 40, referred to by the master at page 1811 line 25. Mrs Mowatt was his former wife.

Your Honours, as to the form of order, the part of paragraph 3 that, in our submission, should not be the subject of an order is the part following the second line commencing with "including" and going to the end of the matter. It may be that the appellant fails altogether on this issue and the matter is one which, in our submission, should be left to the Court of Appeal to determine.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, could I deal first with what I will call the notice of contention point. My friend has referred to copies of the relevant rule. Can I hand up to your Honours a copy not only of that rule but of the relevant form. If your Honours turn to the back, form 67, the form is in what I will call the usual form for a notice of contention, which is that:

The respondent wishes to contend that the decision of the Court below should be affirmed but on grounds other than those relied upon by the Court below.

That is what my friend is doing in respect of points (1) not argued; (2) not pleaded. It is, with respect, a cute interpretation of the rule to say, "Although this was never dealt with, I don't assert there's a `matter of fact or law that's been erroneously decided' because it was never touched". Most rules of court, on my recollection, dealing with this issue say that if you want to in effect compose an alternative judgment and then seek to defend that, then you need to put that in the notice of contention. At any rate, that is by way of technical response to my friend's interpretation of the rule.

So far as the point that my client's case was not pleaded or argued, we submit that it was both pleaded and argued. On the first point, could I take your Honours to the statement of claim in volume 1 of the appeal books.

CALLINAN J: Do we go there or to the amended document you sent us?

MR REYNOLDS: As Mr Jackson said, the amendment is relevantly inconsequential, so I will confine myself to the document I have looked at. This is at page 2 of volume 1. Your Honours will see that there is reference in paragraph 9 to a case which is said to be:

Further or in the alternative, the said injuries . . . were caused by the negligence of the Second Defendant.

I submit that it was easily open on that pleading for my client to run the case which he ultimately succeeded upon.

KIRBY J: I am sorry, I did not find that paragraph. Which paragraph is it?

MR REYNOLDS: At the bottom of page 2, paragraph 9 over the page.

KIRBY J: I see, yes.

MR REYNOLDS: ......in the alternative. Second of all, let it be assumed that I am wrong in that submission as to whether it was available on the pleadings, my second submission is that if I am wrong on the first issue, then the case was permitted to run off the pleadings in the submissions. Now, to do that, I need to take your Honours to some - - -

GLEESON CJ: Just before you pass from page 3, it was never any part of your case, was it, to suggest that there were potholes in the path that was being followed by your client? The potholes were all connected with the uneven surfaces of the edge of the road?

MR REYNOLDS: Your Honour, the finding by the master is the potholes were on or at the edge of the road.

GLEESON CJ: On any view of the matter, whether it was the result of pressure from a motor car or lack of concentration, there was, on your case, a deviation from the course being pursued by your client to bring him into a pothole. Whether the deviation resulted from a motor car or lack of concentration or a breakage of the frame of the bike, he had to deviate to hit the pothole.

MR REYNOLDS: He did, to at least some small extent was my point. It may only have been three or four, five inches.

GLEESON CJ: I presume a cyclist travels as close to the edge of the smooth surface as he thinks he can safely travel for reasons related to what might happen to him if he moves out into the middle.

MR REYNOLDS: Well, that is right. I mean, one assumes he is trying to keep out of the road of cars and stays as close to the edge as he can be.

GLEESON CJ: I mean, the very loose gravel off the surface of the road was dangerous itself to ride a bike in, was it not?

MR REYNOLDS: It would be, but the difficulty we are getting into here is that the respondents are trying to make an issue about exactly where the potholes were. The finding is that they were on or at the edge of the road. The difficulty I face is that - and I have had my learned junior look at this issue and he says that all of the evidence is that the potholes were actually right at the very edge of the road that is still part of the tar. If your Honours are going to be looking very closely at the words "at" or "on" the edge, I would like liberty to give your Honours a summary of the evidence on that point because - - -

GLEESON CJ: By all means do that. The photographs actually seem to indicate that. Were those photographs taken at about the time?

MR REYNOLDS: No. As I understand it, they were taken quite some time afterwards and the state of the road in those photographs, as I understand it, was not treated as - - -

GLEESON CJ: At all events, I just wanted to be clear about this, that whoever is right or wrong and whatever was the explanation for it, encountering a pothole involved a deviation.

MR REYNOLDS: To some extent, however small, yes. That is the real issue, in a sense, between my learned friend and I. My learned friend is striving with might and main to get my client as far away from the edge as he legitimately can and I am trying to get him as close to the edge as the findings and the evidence permit. But what I do submit is that he was travelling close to the edge. You cannot say on the findings or on the evidence that there was a definitive margin of 2 feet, nor can one say on the finding that the potholes did not intrude onto the tar. So that what I say is the evidence and the findings are in a state where it is very difficult to suggest that a minor deviation as a result of loss of concentration is glaringly improbable, that is what it comes down to.

So I am talking about a margin of this much and my learned friend is trying to squeeze it out a bit to make it, one assumes, less probable. So far as the argument that the case was, in effect, run off the pleadings can I hand up three bundles to your Honours?

GLEESON CJ: Thank you.

MR REYNOLDS: Do your Honours have a copy of each of the three documents?

GLEESON CJ: Yes, thank you.

MR REYNOLDS: I go then to the document which has :

Anthony Peter Suvaal v Nominal Defendant -

at the top of the page. This is a portion of Mr Bartlett's on behalf of the nominal defendant. I just want to read some portions of it. Starting at the top:

It is the plaintiff's case that it was the travelling of his bike over potholes on the edge of the bitumen surface which caused the final fracture -

Then these words:

be it whether this was caused by being forced into that place by a motor vehicle or otherwise -

That is how Mr Bartlett understood the case.

KIRBY J: And he is the nominal defendant?

MR REYNOLDS: Indeed, and he is going to take advantage of this forensically. He says at the bottom:

No doubt the second defendant -

that is the council -

contends if the plaintiff is not accepted in respect of his credit as to the presence of a motor vehicle . . . equally his evidence cannot be accepted that he ran over potholes which caused the final fracture failure.

The position of the . . . Nominal Defendant is that the statements made by the plaintiff immediately after the accident when the ramifications of any personal injuries claim would not have been apparent to him and at a time when it would be expected he had no reason to tell other than tell the truth should be relied upon -

Ultimately that is what happened, your Honour. It talks about the various histories given by him. It talks - and this is important, your Honours can see the genesis of this judgment here - about the evidence of Senior Constable Barber and at about point 4:

there was no vehicle involved . . . when he was travelling along the road he "hit a couple of potholes and the handlebars of the pushbike came away" -

and it talks about the other histories. Then, this is the important bit:

the Nominal Defendant's position, therefore, that such a statement can be accepted (as distinct from his oral and other evidence . . . as to the truth of that issue which on the balance of probabilities would cause the Master to find that the plaintiff did hit a couple of potholes which in turn resulted in the final fracture and the handlebars of the bike collapsing, the plaintiff losing control of the bike and suffering his injury.

So, Mr Bartlett knew what the argument was and, I respectfully submit, cleverly framed the case so that there was a finding which could be made where the plaintiff would succeed but not against his client.

If I can go to the document which has the number 36 on the top, that is Mr Bartlett's further portion of his written submissions, and at the bottom of that first page he again talks about contributory negligence and runs the very argument that the plaintiff was:

(iv) Not looking or concentrating where he was going, thereby resulting in running into potholes in the road.

So to suggest that this issue - which obviously is a matter that was pleaded as well by both defendants - is not in play is, I respectfully submit, not open. Mr Rofe knew that it was open. The final document your Honours have there is a portion of his submissions - your Honours pardon me for a moment. On the second page there, the number 2 at the top, paragraph 6, Mr Rofe talks about "fall back" findings. So he is worried about Mr Bartlett putting them in the frame, and he says that these:

"fall back" findings are not open to the court -

and he deals with that in some detail. Importantly, on page 4F he says:

How come on this occasion he ends up on the edge of the road at the time when the steering mechanism collapsed, absent some external object compelling him to go there.

Then he responds to this suggestion. He says:

You cannot speculate upon loss of attention, tiredness, misjudgement etc for the reasons that he has given you his only reason - a motor vehicle. If this is a lie and is rejected, then to embrace any other reason is speculation.

But Mr Rofe knows that this is in play. He also makes it part of his case in his particulars of contributory negligence. They are to be found in volume 1 of the appeal books at page 8, that is page 8 at the bottom of the page, that is Mr Bartlett's. At page 15 Mr Rofe in paragraphs 6(a) and 6(b) also talks about:

Failure to keep a proper lookout.

Failure to ride his bicycle -

Your Honours will have noticed of course that the finding of loss of concentration is under the heading of "Contributory Negligence". So we submit that this issue is well and truly live on the pleadings, and in the alternative the - - -

KIRBY J: There is no express mention of lack of concentration there.

MR REYNOLDS: But again it is inherent in "Failing to keep a proper lookout" et cetera. The best proof in a way of the absence of there being any problem is that when this matter went to the Court of Appeal Mr Rofe again appeared and he did not take the point.

If this was such an egregious breach of the rules of natural justice and that he suffered great prejudice from all this, why did he not take the point? It is because there was not any prejudice and he knew that that was an issue and he knew that Mr Bartlett was trying to put him in the frame in this way. So I respectfully submit that the case was both pleaded and argued.

CALLINAN J: But your client never withdrew a narrative account of the accident, which I think is in paragraph 3 of the statement of claim.

MR REYNOLDS: Never, and he stood by it resolutely. That is conceded. There is no doubt about it and he defended it with the fullest vigour.

CALLINAN J: So the nominal defendant is making a case in effect that the appellant would never dare assert himself. He just could not make the case that was found in his favour consistently with the narrative allegation of his evidence.

MR REYNOLDS: Your Honour, it is open - - -

CALLINAN J: It may have been an issue.

MR REYNOLDS: It was.

CALLINAN J: I am just raising the possibility that it was an issue between the defendant that may never have been an issue between the appellant and this respondent. Do you exchange pleadings in New South Wales as between defendants and notices of contribution or anything?

MR REYNOLDS: Your Honour, I am sure they had copies of all the relevant pleadings. That is not an issue. Mr Milne's case here is not what you might call an omnibus case.

He is running a case against two defendants and he says, I have got them both. Now, one can understand forensically why he would not want to agitate in the fullest amplitude in argument the idea that if you assume my client is disbelieved on the involvement of the other vehicle, then I still succeed against the Council. He ran a case against both, but what the master could have said to him was, "Well, let me be clear about this. If you do not succeed against the nominal defendant and I look at your alternative case against the Council alone as you have pleaded it in the alternative - - -

CALLINAN J: It is an alternative case in the light still of paragraph 3.

MR REYNOLDS: I submit it is an alternative case simpliciter.

CALLINAN J: Well I do not read it that way, I have to say.

McHUGH J: Well, if you look at paragraph 5 of the Council's written submissions, the document you handed, it says:

If the Court rejects the "car forcing me off the road" account, the question then arises as to what other account can this Court properly and logically embrace to find for the Plaintiff against the Council in the face of his disavowment of any other scenario other than the "car forced me off the road" scenario? If the Court is to fall back on the Harvey Barber account -

and then the counsel says:

The Plaintiff has to identify the pothole(s), patches or edges -

et cetera.

MR REYNOLDS: It is a passage I really should have taken your Honours to and which, I should say, my learned junior has highlighted for me, but again, Mr Rofe knew that that was in play.

CALLINAN J: But, Mr Reynolds, that is not correct as a submission. The court does not have to find how the accident occurred. Once the appellant is rejected the court can quite properly say, well, it is impossible to say how this accident occurred.

MR REYNOLDS: It can, or it can do as the - - -

CALLINAN J: At the moment I would take the respondent's submissions as no more than "if you must find a version" - if - "then"; not that "you must find a version of the accident".

MR REYNOLDS: Your Honour, again, as I submitted earlier, it is a situation where the master accepted part of the plaintiff's evidence and rejected another portion and she was entitled to do that. She did not find that this man was a liar. I have addressed submissions directed to Abalos, I hope in rather specific terms, and I respectfully submit that not all of those submissions have been responded to in direct terms by my learned friend, or at least in the form in which I have put them. Your Honours, I was not proposing to raise anything further in reply.

GLEESON CJ: All right, thank you, Mr Reynolds.

MR REYNOLDS: Those are my submissions.

MR JACKSON: Your Honours, there remains the question of the document to which I adverted before and putting in a document which indicated the parts - - -

GLEESON CJ: You can do that within seven days and Mr Reynolds will have a further seven days after that to put in any response he - - -

MR REYNOLDS: Thank you, your Honour. I think I also need to put in a document summarising the evidence on exactly where these potholes were.

GLEESON CJ: You can do that at the same time, Mr Reynolds.

MR REYNOLDS: Thank you, your Honour.

GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10.15 am on Tuesday.

AT 12.44 PM THE MATTER WAS ADJOURNED