Dirt bike ridden on grass verge

Keywords

S 79(3) Evidence Act 1977 (Qld) – convicted criminally – dangerous operation of a motor vehicle – inconsistent evidence – credibility – contributed materially to risk of harm

Facts

The Plaintiff was injured on 9 June 2017 in a motor vehicle accident. He contends he left his house and approached the first defendant who was riding a dirt bike on a grassed verge. The Plaintiff alleges he was standing on the grassed footpath when the First Defendant rode an unregistered dirt bike directly at him and failed to safely give way to the Plaintiff, striking the Plaintiff’s arm, causing injury.

The Nominal Defendant was brought in as the Second Defendant given there was no policy of insurance on the dirt bike. The first defendant contends the plaintiff’s description of incident and says the Plaintiff deliberately moved into the path of the First Defendant, which caused the fracture in the Plaintiff’s arm.

The First Defendant was convicted of dangerous operation of a motor vehicle causing grievous bodily harm to the Plaintiff on 17 October 2018.  The Plaintiff relied on the conviction of the First Defendant in proof of his claim.

Decision

Trevino KC DCJ, delivered 7 March 2025. Claim dismissed with the parties to agree on appropriate costs order.

Ratio

Under s 79(3) of Evidence Act 1977 (Qld) it was the Second Defendant’s onus to prove, on the balance of probabilities, the First Defendant did not dangerously operate the dirt bike and/or that the first defendant’s dangerous operation did not cause the grievous bodily harm suffered by the Plaintiff.

The Second Defendant submitted the First Defendant acted reasonably and took all reasonable steps to avoid the collision as he was not driving at excessive speed, kept a proper lookout and attempted to manoeuvre the dirt bike safely past the Plaintiff.

The Trial Judge found the Plaintiff’s version of events could not be accepted because the evidence given was fundamentally different to the version given at the criminal trial as well as the case that he had pleaded. The Trial Judge found the inconsistencies damaged the Plaintiff’s credibility.

The Trial Judge outlined that the likely version was the Plaintiff acted in an aggressive manner and deliberately struck the First Defendant in the head, amounting to common assault of the first defendant under s 334 of the Criminal Code 1899 (Qld), and ultimately found the Plaintiff’s assault on the First Defendant was conduct “which clearly contributed materially to the Plaintiff’s risk of harm”.

Accordingly, the Trial Judge found the Second Defendant was able to prove the first defendant did not dangerously operate the dirt bike and dismissed the claim.