At 22 years of age, Gary was a keen motorbike rider working as a trade’s assistant in Caboolture.
One Tuesday in his lunch break, Gary set out on his motorbike to join his fiancée who was working nearby as a strawberry picker. It was a fine day, the roads were mostly clear, and Gary was in no great rush.
He certainly didn’t expect what happened next.
The facts
What happened?
Gary was travelling along a bitumen road with a sweeping curve to the left, followed by a sweeping curve to the right. He carefully turned through each of the curves and then looked up at the straight stretch of road ahead of him.
That’s when he spotted a car. The car was travelling in the opposite direction, quickly getting closer to Gary. But something wasn’t right. The car was two-thirds into Gary’s lane, and wasn’t getting out of the way.
Gary grabbed his brake and veered to the left to move out of the car’s way. He rode onto the gravel strip next to the road, successfully avoiding the car, but hit a concrete water pipe. Gary and his motorbike were thrown into the air.
The next thing Gary remembered was lying on the ground. Then he lost consciousness.
Gary sustained a fractured vertebrae, causing tetraplegia (permanent paralysis of the limbs). His life was changed forever.
Where did the car go?
Gary recalled the car was white, but was unsure about the make. Police placed an advertisement in the local newspaper about a month later asking any witnesses to come forward, but information about the car was limited.
A woman driving with her husband some way down the road saw a light coloured car travelling toward them, before they saw Gary and his motorbike fly into the air in the distance. They rushed to Gary’s aid, but could not remember any details about the car.
The car, and its driver, were never found.
The case
Gary brought proceedings against the Nominal Defendant for compensation for his injuries.
The Nominal Defendant is a statutory body created under the Motor Accident Insurance Act 1994 (Qld) that essentially acts as a compulsory third party (CTP) insurer where a negligent driver’s motor vehicle is unidentified and/or does not have CTP insurance.
In other words, where a vehicle cannot be found or identified, or does not have CTP insurance, a claim for compensation can be brought against the Nominal Defendant.
The Nominal Defendant’s argument
Argument 1: There was no car
The Nominal Defendant claimed that there was no car, OR, if there was a car, it did not cause the accident.
It based this argument on the fact that Gary had told different versions of his story to different people. The Nominal Defendant alleged that Gary was upset about his injuries and so he made up a story about a car causing the accident.
Argument 2: Gary was contributorily negligent
The Nominal Defendant argued that if a car was involved, Gary contributed to the accident (and his injuries) by:
- Travelling too fast for the curving road;
- Not paying enough attention;
- Failing to keep the bike under his control; or
- Failing to stop or slow down.
The judgement
The case was heard in the Supreme Court of Queensland,[1] which found the following:
Did the accident happen as Gary claimed?
The Court held that the accident did happen as Gary claimed.
While Gary did give inconsistent statements about the accident, the inconsistencies could be explained by looking at the context of the statement.
For example, it is understandable that Gary’s story-telling might not have been perfect when he was lying on the side of the road being helped by paramedics. Similarly, one can see how he might have missed a detail when he was sitting in a hospital bed in shock and pain, when explaining his injuries to his employer, and when being interrogated in court quite some time later.
The Court decided that Gary’s inconsistent statements were probably due the circumstances in which he gave the statements, and not due to deceit.
The Court accepted Gary’s version of events, concluding that:
“…more likely than not, the plaintiff was forced to take evasive action due to the negligent (if not reckless) driving by the driver of a motor vehicle who, after due search and enquiry, cannot be found.”
Was Gary contributorily negligent?
The Court held that Gary was not contributorily negligent.
There was simply no evidence to support any allegation that Gary was travelling too fast for the circumstances, or that he was not taking proper care.
The Court accepted that Gary was an experienced motorbike rider who was riding responsibly when he was presented with a dangerous situation requiring evasive action.
The Court said that:
“In order to avoid a collision the plaintiff concluded that he needed to lay off to the left. … He cannot be criticised for being unable to avoid contact with the [concrete water pipe] on the side of the road.”
The result
The Court awarded Gary $4 million in compensation, with no reduction for contributory negligence.
The take-home message
Persuading the Nominal Defendant or the Court into accepting the facts of an accident can be very difficult.
Gary found himself in a situation where he had almost no one to back up his story. Ultimately, the Court had to decide whether to trust Gary based on the steps he had taken.
Fortunately, Gary followed all the right steps:
- He reported his accident to the police;
- He conducted proper search and enquiry for the car;
- He found the witness who could corroborate his story;
- He gave his version of events as honestly as he could.
Conducting a ‘proper search and enquiry’ (as required by law) can be rigorous, and locating witnesses or supporting evidence is very hard to do if you don’t have the necessary skills and experience.
Fortunately, we handle many cases like this. That means that we know exactly:
- What evidence we need;
- How to gather the evidence; and
- How to do it quickly (before it disappears).
That gives our clients the best shot at success.
If you, or someone you know, needs some guidance on what do in a hit and run (or not quite hit and run) situation, feel free to contact our friendly team for a free consultation.
[1] Read v Nominal Defendant [2007] QSC 327