Advertisement

Motorbike versus truck – contributory negligence

compensation law casenotes

On 1 November 2016, the plaintiff was riding a motorcycle along Coronation Drive in Brisbane.

He stopped behind a small truck towing a trailer, with both vehicles intending to make a right hand turn from Coronation Drive into Park Road. Park Road is a single lane carriage way, which after approximately 30 to 40 metres divides into two lanes heading in a northly direction, with two lanes heading south.

The truck made a right hand turn into Park Road, and the plaintiff (on his 110cc motorcycle) followed behind. When on Park Road, and believing the truck was pulling over to the left, the plaintiff commenced to overtake the truck on the right-hand side. The plaintiff alleged that the truck then made a sharp turn to the right, colliding with the plaintiff’s motorcycle and causing him to crash. The evidence before the court was that the impact between the two vehicles was not significant.

Decision

Judgment for the plaintiff in the sum of $173,085.25, with the court to have submissions on costs.

Ratio

The judge found the plaintiff to be an honest witness who did his best to recall events accurately, but said, with respect to some of his evidence, his reliability cannot be accepted without qualification. Both the first defendant and the passenger of the truck presented as being generally disinterested in participating in the proceedings and reluctant to testify.

The judge noted many internal inconsistencies with their respective accounts of what had occurred also. By the defendant’s (driver) own testimony, he did not look in his rear view mirror for the presence of any other vehicles on his right once he entered Park Road.

The judge concluded that the plaintiff did turn right and attempt to pass the truck, believing it was going to stop on the left hand side of the road. The judge found that, at the time, the truck was occupying more than 50% of the single lane width of Park Road.

The judge accepted that the plaintiff maintained his line of travel on the right hand side of the lane at all times, and that the truck had swung sharply to the right. Further, in executing that manoeuvre and not giving way to the plaintiff who was in the same lane, the judge was satisfied that there had been a breach of the Transport Operations Regulations 2009 by the defendant driver.

The court held that both the plaintiff and the first defendant had a duty to take precautions against the risk of harm. Turning the truck sharply to the right in a single lane of travel, without prior indication or checking for the presence of other vehicles or persons in the lane, meant that the driver of the truck had failed to take precautions against harm to others. The defendant’s reliance on ‘following vehicles cases’ is not a complete answer to the decisive conduct in the collision in the sudden change of direction by the first defendant (driver of the truck).

The facts demonstrated that the defendant was on the left of the lane (Park Road) travelling slowly. Where there was knowledge of other traffic behind him turning into Park Road, and in circumstances where the lane on Park Road was wide enough for two vehicles to fit in, there existed a risk the defendant ought reasonably to have known existed that another person or vehicle might have been in the lane adjacent to or close to him. Further, a second lane was marked a short distance ahead and the truck indicator light had not been reactivated after being automatically turned off in the course of initially turning into Park Road.

The risk that another person or vehicle may have been close to him was not insignificant, and a reasonable person in a position of the defendant would have taken precaution to guard against it by giving prior indication of an intention to turn, or, by checking the rear-view mirrors. Alternatively, they would have taken steps to ascertain that there was no other person or vehicle likely to be affected by the sudden right-hand manoeuvre.

However, the judge was also satisfied that the plaintiff failed to take precautions against the risk of harm by turning into the then single lane of Park Road, and attempting to overtake the truck on the right hand side when he was not aware of the length of the truck. Further, it was too early for the turning truck manoeuvre to have been completed to be assured of its path up Park Road.

A reasonable person in the position of the plaintiff would have taken precautions, for example maintaining a position behind the truck and not commencing to overtake into the two marked lanes which commenced 35 metres up the roadway. The judge assessed the contributory negligence of the plaintiff at 40%.

This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP). As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.

Share this article

Leave a Reply

Your email address will not be published.

Search by keyword