Motorcyclist fails in claim for damages for amputation injuries following collision with motor vehicle.
- The circumstances of a collision between and motor cycle and a vehicle at an intersection
At about 9.30 am on 15 June 2013, Mr Ashley Brown (Mr Brown) suffered serious injuries, and eventually a below knee amputation of his left leg, as a result of his motorcycle colliding with a motor vehicle driven by the first defendant, (Mr Holzberger). Mr Holzberger was driving a four wheel drive vehicle. He was travelling in a westerly direction on FE Walker St in Bundaberg, intending to turn right. Mr Brown was approaching him travelling in a more or less easterly direction. Mr Brown’s motorcycle was a Kawasaki Ninja 650cc, the headlight of which was illuminated. Mr Holzberger did not see the motorcycle before the impact.
Mr Brown claimed damages on the basis that Mr Holzberger’s negligence caused the accident. Mr Holzberger denied the claim.
Decision at trial
There were two principal issues between the parties. The first concerned the location of Mr Brown’s motorcycle at the time that Mr Holzberger commenced his turn. The second issue was the speed at which Mr Brown was travelling.
Every witness called on behalf of Mr Holzberger contradicted Mr Brown’s evidence about the speed at which he was travelling. The court accepted the evidence of several independent defence witnesses that Mr Brown was travelling well over the speed limit when the collision occurred.
The court noted that Mr Brown’s traffic history (four speeding offences in less than two years and three suspensions) showed a disregard for the road rules.
Mr Brown failed to establish that the accident occurred because of any negligence on the part of Mr Holzberger. The court therefore concluded that the subject accident occurred because of Mr Brown’s negligence in overtaking a vehicle on its left hand side and in contravention of the road rules (when only a short distance from the relevant intersection and at a great speed). By then Mr Holzberger had commenced his turn to the right and was no longer looking down FE Walker St and did not see the motorcycle. There was no action reasonably open to Mr Holzberger to then avoid the accident.
Although it was not necessary to do so, damages were assessed at just over $890,000.
Implications for you
This case demonstrates the importance of witness statements of independent observers and bystanders in successfully defending a claim. The witnesses in this case were influential on the outcome because of the fact that they fortuitously included an experienced motorcyclist and also a retired police officer. However the critical evidence to refute the claim was obtained from a witness who was able to counter Mr Brown’s evidence of the speed at which he was travelling at the point of impact.